Judicial Immunity for the Assassins
By Jacob G. Hornberger
April 29, 2015 "Information
Clearing House" - "FFF"
- In the wake of President Obama’s apology for the killing of two
Western hostages in a drone assassination in Pakistan, people might be wondering
if it will be possible for surviving family members to recover in a legal action
against the assassins for the wrongful death of their loved ones.
The answer is unequivocally no. The reason is that long ago, the
judicial branch of the federal government, acquiescing to the overwhelming power
of the national-security branch of the government, decided to erect a wall of
immunity around CIA assassinations.
The Supreme Court called this wall of immunity the “political
question doctrine.” The Court said that since federal judges are incompetent to
analyze matters relating to foreign policy and “national security,” they would
not hold any U.S. official responsible for what would ordinarily be considered
criminal offenses, so long as the officials claimed that the act was related to
“national security.”
Moreover, the federal courts made it clear that the
national-security branch was the final determiner of what constitutes “national
security.” In other words, once U.S. officials cited those two words after an
assassination, kidnapping, illegal surveillance, no doubt even rape — that would
be the end of the matter. There would be no judicial second-guessing when it
came to the political question of what constitutes “national security.”
Consider, for example, the CIA’s orchestration of a
kidnapping-assassination scheme in 1970 against a Chilean man named Rene
Schneider, which I detailed in an article entitled “The
CIA’s Murder of Rene Schneider.”
Who was Schneider? He was the commanding general of the entire
Chilean armed forces. He was akin to the Chairman of the Joint Chiefs of Staff
here in the United States.
Why did the CIA orchestrate his kidnapping-assassination? He
was standing in the way of a Chilean military coup that the CIA and other U.S.
officials were planning for Chile. The reason they wanted a coup was to oust the
democratically elected president of Chile, Salvador Allende, from power and
replace him with a military dictator.
Schneider said no to the CIA. He said that he had taken an
oath to support and defend the constitution of Chile, which prohibited a
military coup as a legal way to oust a democratically elected president from
office.
The CIA later said that it wasn’t responsible for his
assassination because the CIA just wanted him kidnapped, not killed. That was
clearly a lie though because there was never any possibility that the kidnappers
were going to release Schneider, given the fact that he would then re-assume his
position as head of the Chilean armed forces, where he would continue to stand
in the way of the illegal and unconstitutional coup that the CIA was
orchestrating.
Meanwhile, at the Pentagon’s School of the Americas, U.S.
national-security state officials were teaching their Chilean counterparts that
Schneider was wrong — that Chilean military and intelligence forces had a moral
duty to remove their democratically elected president from office since his
policies posed a grave threat to “national security.” (As I point out in my new
book
Regime Change: The JFK Assassination, that same mindset manifested itself in
the assassination of President John F. Kennedy seven years before the Schneider
assassination.)
When Schneider’s children later sued U.S. officials for the
wrongful death of their father, guess what the U.S. federal courts said. You
guessed it: Political question doctrine! We’re not competent to delve into a
complex area like foreign policy, not even on political assassinations of high
government officials, the federal judges said. That’s just far beyond our
expertise. Case dismissed. (After losing their case in U.S. Courts,
the Schneider family sought relief in the Inter-American Commission on Human
Rights, where their petition is pending.)
There is no doubt that the federal judiciary would hold the
same way on political assassinations carried out by the CIA against U.S.
government officials as well as American citizens. This was confirmed by the
dismissal of a federal-court action brought by family members of American
citizen Anwar al Awlaki, who was assassinated by the CIA on grounds of “national
security.”
The truth is that the “political question doctrine” is a total
cop-out. It’s a made-up judicial doctrine to avoid interfering with the
national-security state’s omnipotent power. The doctrine is found nowhere in the
Constitution.
After all, when a cop assassinates a person — say, by shooting
the victim in the back — he’s charged (sometimes) with murder and he’s also
subject to being sued by surviving family members. In such cases, the federal
judiciary doesn’t say, “Police operations are beyond our expertise. We will not
permit anyone to interfere with or second-guess police assassinations.”
Why the difference in treatment?
It’s because of the overwhelming power of the
national-security branch of the government. As Michael J. Glennon points out in
his deeply insightful book
National Security and Double Government, the Pentagon, the CIA, and the NSA
will permit the other three branches of the federal government to maintain the
aura of traditional, constitutional governmental control so long as they don’t
cross any red lines by interfering in a fundamental way with the operations of
the national-security branch — the most powerful of the four branches of the
federal government.
After all, who wants to jack with a branch of the government
that has had the omnipotent power to assassinate people ever since its inception
in 1947?
Jacob G. Hornberger is founder and president of The Future of
Freedom Foundation. He was born and raised in Laredo, Texas, and received his
B.A. in economics from Virginia Military Institute and his law degree from the
University of Texas. He was a trial attorney for twelve years in Texas. He also
was an adjunct professor at the University of Dallas, where he taught law and
economics.