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Federal Judicial Cowardice in Rene Schneider’s Murder

Rene Schneider

In his Farewell Address in 1960, President Dwight Eisenhower, who had served as commander of allied forces in World War II, warned the American people of the danger of a national-security establishment, which he called the “military-industrial complex.” He said that this particular type of governmental structure, new in American life, posed a grave threat to the freedom and democratic processes of the American people.

In 1973, the people of Chile learned firsthand what Ike was talking about. The national-security establishment of Chile decided to oust the country’s democratically elected president, Salvador Allende, from office and replace him with a military dictatorship. On September 11, 1973, the military and intelligence segment of the government launched a violent military attack against Allende and some of his aides.

While the president’s forces held out for a while with small-arms fire, they were no match against the air force (whose jet planes were firing missiles at their position) and the army (which surrounded the president’s position with infantry and armor and began firing bullets at him. Within just a few hours, the national-security establishment had prevailed and the president, Salvador Allende, lay dead.

Up to that point, Chile had had a long history and tradition of democracy. That came to an end with the military coup that ousted Allende and installed a brutal military dictatorship in his stead. Headed by Gen. Augusto Pinochet, Chilean national-security state forces proceeded to round up, kidnap, torture, rape, incarcerate, kill, or disappear tens of thousands of innocent people, including two Americans.

The reason for the coup? The U.S. government had decided that the Chilean people had acted irresponsibly by democratically electing Allende as their president. That’s because Allende was a self-avowed socialist or communist. He believed that the purpose of government was to take care of people with such programs as Social Security, free healthcare, and free education. He believed that government should take money from the rich and give it to the poor. Allende also committed the cardinal sin (in the eyes of U.S. officials) of reaching out to the Soviet Union in a spirit of peace and friendship.

The U.S. national-security established convinced their national-security state counterparts in Chile that they had a legal and moral duty to violently oust Allende from power and save the country from socialism and communism, even though a coup was illegal under Chile’s constitution.

One of the Chileans who objected to a coup was Gen. Rene Schneider, the overall commander of Chile’s armed forces. His position was simple and clear: As a soldier, he had taken an oath to support and defend the constitution of Chile, which provided for only two ways to remove a president: impeachment and election. Under Chilean constitutional law, coups were forbidden.

Pentagon and CIA officials didn’t see things that way. Their position, which they relayed to Chilean military and intelligence officials from 1970-9173, was that when a president is adopting policies that are destroying the country, it is incumbent on the national-security establishment to step in and save the country by removing the president from office, violently if necessary, even though the country’s constitution doesn’t permit it.

After the Chilean coup succeeded, the federal courts in Chile went silent. Most judges in the federal court system realized that things had changed fundamentally with the coup. Like the rest of the populace, they could see that people were disappearing. They could also see the mutilated corpses that were turning up on the streets. They could see the stacks of bodies of people that were piling up in the morgues.

Rather than enforcing the constitution of the country, which made all this illegal, the federal judiciary buckled. They understood that there was nothing they could, as a practical matter, to stop the national-security establishment from doing what it was going to do. They also took the position that discretion is the better part of valor, given what the military and intelligence agencies could do to them if they issued rulings against them. So, they just went along and supported the severe tyranny that the military dictatorship was imposing and enforcing.

That’s the type of thing that Ike was talking about when he said that the military-industrial complex posed a grave threat to the freedom and democratic processes of the American people. As it turned out, the U.S. national-security establishment also posed a grave threat to the freedom and democratic processes of Chile, just as Chile’s own national-security establishment did.

Interestingly enough, the same thing happened within the federal judiciary here in the United States. Recognizing the overwhelming power of the national security establishment, the federal judiciary, like its counterpart in Chile, buckled and deferred to the power of the Pentagon and the CIA.

One of the best examples of this phenomenon involved Gen. Rene Schneider, the man who was in charge of Chile’s armed forces. When he refused to go along with the CIA’s request for a coup, U.S. officials decided to remove him from the scene.

A conspiracy to kidnap Schneider was entered into either in Washington, D.C., or in Virginia, either at the Pentagon, the CIA, or both. As part of the conspiracy, the CIA smuggled high-powered weapons into the country and conspired with local thugs to do the actual kidnapping.

While the CIA has long denied that the conspiracy included plans to kill Schneider, the denials ring false. After all, what else could have been done with Schneider after they kidnapped him and initiated the coup? It would have been extremely awkward to simply return him to Chilean life.

Nonetheless, under what is called the felony-murder rule, conspirators are legally culpable for a murder that is committed in the course of a felony. Thus, when Schneider was shot dead by the would-be kidnappers as he fought back, the U.S. officials who were part of the kidnapping conspiracy would be guilty of conspiracy to kidnap and also murder.

Yet, when the sons of Rene Schneider sued the U.S. government many years later for the unlawful kidnapping and the murder of their father, the federal courts did the same thing that the Chilean federal courts did. They ran for cover.

A U.S. District Court and a federal Court of Appeals held that the Constitution prohibited the federal judiciary from getting involved in the kidnapping and murder of Schneider by the U.S. national security establishment. They said since the Constitution authorized the executive branch to run foreign policy, the federal courts lacked the power to get involved in those types of political questions.

But it was nothing more than a cowardly way of avoiding confronting what the U.S. national-security state had done. After all, we are talking the CIA’s kidnapping and assassination of an innocent man. If there is anything clear about constitutional intent, it’s that the Framers did not intend to call a federal government into existence with the power to kidnap and murder innocent people.

Wielding the power to run foreign policy is one thing. But at the risk of belaboring the obvious, running foreign policy doesn’t necessarily entail the commission of criminal offenses, including kidnapping, murder, rape, or any other felony. The U.S. federal courts used the foreign policy and political question rationale as a cowardly way of doing the same thing that the Chilean courts did under the Pinochet’s national security state — avoid confronting the overwhelming power and influence of the military and the CIA.

After the Schneider’s sons lost in the Court of Appeals, they appealed to the U.S. Supreme Court, which voted not to hear the case. The U.S. government, including the CIA, got away with the felonies of conspiracy to kidnap and murder. And that remains the case to this day.

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation.

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