# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 11, 2005 Decided June 28, 2005

No. 04-5199

R ENE ' S CHNEIDER

, ET AL

., A PPELLANTS

v.

H ENRY A LFRED K ISSINGER AND

U NITED S TATES OF A MERICA

, A PPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv01902)

Laura Rotolo

, student counsel, argued t he cause appellants.

With her on the briefs were Michael E. Tigar

, and Alison Stites

, Christine Parsadaia n

, Courtney J. Nogar

, D ebra L.

Spinelli-Hays

, Jame s B. Cowden

, K aren Corrie

, Melissa

Mandor

, Timothy L. Foden

, Jennifer Dodenhoff

, and Aaron

Lloyd , student counsel.

Robert M. Loeb

, Attorney, U.S. Departme n t of Justice,

argued th e cause for appellees. With him on the brief were

Daniel Meron

, Acting Assistant Attorney General, Kenneth L.

Wainstein

, U.S. Attorney, and Barbara L. Herwig

, Assistant

Director.2

Before: S ENTE

LLE

, H

E NDERSON and R

OGERS

, Circuit

Judges

.

Opinion for the Court filed by Circuit Judge S ENTELLE

.

S ENTELLE

, Circuit Judge : René and Raúl Schneider,

surviving sons of decease d Chilean General René Schneider,

together with José Pertierra, personal representative of the estate

of G e neral Schneider, brought this action in United States

District Court for the District of Columbia against the United

States and Henry Kissinger, wh o at the time of the relevant

events was the National Security Advisor to the President of the

United States. The complaint alleged in nine counts, all of them

directed against both defendants, that Kissing e r and the United

States had caused, in conjunction with Chilean persons n o t

named as defendants, the kidnapping, torture, and death of

Plaintiffs-Appellants’ dece dent. The District Court granted the

motion of Defendants-Appellees to dismiss Appellants’

complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal

Rules of Civil Pro cedure for lack of jurisdiction and failure to

state a claim upon which relief could be granted. Plaintiffs filed

this appeal. Because we agree with the District Court that the

courts la ck jurisdiction over nonjusticiable questions raised by

the complaint, we affirm the grant of dismissal pursuant to Rule

12(b)(1).

I. Background

Appellants filed their o riginal complaint on September 10,

2001, iden

tifying their relationship to the deceased general and

claiming against Kissinger, the United States, and Richard

Helm s (former Director of the CIA). That complaint alleged

that in 1970 the leader of the Chilean leftist co alition, Dr.

Salvador Allende, won a slight plurality of the vote (36.3%) in

Chile’s presidential election, and that this victory on his part3

created the expectation that he would, in the following months,

be ratified by the Chilean congress as the firs t socialist president

of the country. According to the complaint, “[k]ey United States

policymakers” oppose d the choice of Allende as president of

Chile and on September 8, 1970, “policymakers” began the

process of assessing “th

e pros and cons and problems and

prospects involved should a Chilean military coup b e organized

. . . w ith U.S. assistance.” Compl. ¶ 16, Appellees’ Appendix

(App.) at 7. After receiving further information, on September

15, 1970, defendants Kissinger, Helms, and Attorney General

John Mitchell met with President Nixon. The President ordered

that step s be taken to prevent Allende from becoming president,

a nd specifically, that the CIA was to “play a direct role in

organizing a military coup d’etat in C hile” and do quickly

whatever was possible to prevent the seating of a possible

socialist president. Compl. ¶ 18, App. at 8. The President

expressed that he was “not concerned” about any risks involved,

authorized $10 million in funds to effect such a coup, and

required a plan of action be drafted within 48 hours. Id.

The compl

aint further alleged that efforts to prevent

Allende from achi eving the presidency proceeded on two tracks.

“Track I” was a covert politi c al, economic, and propaganda

campai gn approved by a subcabinet level body of the executive

established to exercise political control over covert operations

abroad. Compl. ¶ 19, App. at 8. “Track II” activities were

u ndertaken in direct response to the President’s September 15

order and were directed “towards actively promoting and

encoura g ing the Chilean military to move against Allende.” I d.

In the following months, the tracks moved together. The United

States Ambassador to Chile was autho rized to encourage a

military coup and to intensify contacts with Chilean military

officers in order to ascertain thei r willingness to support such a

coup. The Ambassador was also authorized to make contacts in

the Chilean military awar e that the military would receive no4

military assista

nce from the United States if Allende became

president of Chile. The Ambassador reported back that General

Schneider would be an impediment to achieving the goals

outlined in the President’s directive, and t hat he would have to

be neutralized. The complaint went on to allege particular acts

undertaken in furtherance of the goal of establishing a military

coup and claims for relief based on those actions, including the

kidnapping, torture, and kill i ng of General Schneider. In all, the

comp laint alleged seven claims: (1) summary execution; (2)

torture; (3) cruel, inhumane, or degrading treatment; (4)

arbitrary detention; (5) wrongful d eath; (6) assault and battery;

and (7) intentional infliction of emotional distress.

Defendants moved to dismiss the complain t on November

9, 2001; Plaintiffs responded on D ecember 17, and Defendants

replied on January 31, 2002. Also, in November, the Attorney

General submitted a certification that Kissinger and Helms were

acting within the scope of federal employment at the time of the

incident out of which pl

aintiffs’ claims arose. Based on that

certif ication, the Attorney General asked the court to remove the

individual defendants from the case under the W estfall Act, 28

U.S.C. § 2679, and substitute the United States. In response to

the Westfall certifica

t ion (and to Helms’s October 2002 death),

plain tiffs submitted an amended complaint on November 11,

2002. The amended complaint omitted the direct references to

President Nixon, deleted the deceased Helms as a defendant, and

added two new claims under the Federal Tort C l aims Act, 28

U.S.C. § 1346(b)(1), one for “negligent failure to prevent

summary execution, arbitrary detention, cruel, inhumane, or

degrading treatment, torture, wrongful death, and assau lt and

battery,” and one for intentional infliction of em otional distress.

Am. Compl. ¶¶ 87-100, App. at 22-24. Defendants renewed

their motion to dismiss on December 12, 2002. Plaintiffs

responded to the motion on January 17, 2003. On March 30,

2004, th e court granted the motion to dismiss pursuant to Rule5

12(b)(1) on the basis that the Political Question Doctrine

rendered plaintiffs’ claims nonjusticiable. S chneider v.

Kissinger

, 310 F. Supp. 2d. 251, 257-64 (D.D.C. 2 004)

(applying Baker v. C arr , 369 U.S. 186, 210 (1962)). In the

alternative, the court held that the complaint failed under Rule

12(b)(6) because (1) Kissinger was immune under the W estfall

Act, Schneider

, 310 F. Supp. 2d. at 264-67, and (2) the United

States was immune as sovereign, id. at 268-70. The court noted

early in its decision that it would rely on both the original an d

amended complaints in making its decision, because “[t]he

parties ask the Court to consider all briefs, as they did not repeat

their initial argum

ents in response to the amended complaint.”

Id . at 254 nn. 2-3.

Because we determine that the court correctly ruled that it

lacked jurisdiction as a result of the app lication of the political

question doctrine, we need not reach the alternat e ground. We

note in passing that

some of the discussion of sovereign

immunity and Westfall questions bears on our application of the

Political Question Doctrine, but we need m a ke no determination

of the questions raised by those theories in light of the

jurisdictional question that is determinative.

II. The Political Question Doctrine

The principle that the court s lack jurisdiction over political

decisions that are by their nature “committed to the political

branches to the exclusion of the judiciary” is as old as the

fundamental principle of judicial review. A ntolok v . United

States

, 873 F.2d 369, 379 (D.C. Cir. 1989) (separate opinion of

Sentelle, J.). In the venerable case of M arbury v. Madiso n , 5

U.S. (1 Cranch) 137 (1803), Chief Justice Marshall first

e xpressed the recognition by the judiciary of the existence of a

class of cases constituting “politic al act[s], belonging to the

executive department alone, for the performance of whi ch entire6

confidence is placed by our Constitution in the supreme

executive; and for any misconduct respecting which, the injured

individual has no remedy.” I d. at 164. In a continuing line

beginning with Chief Justice Marshall’s analysis in M arbur y v.

Madison , this doctrine has evolved as a limitation of the

jurisdiction of the courts particularly applicable to foreign

relations. S ee Oetjen v. Cent. Leather Co.

, 246 U.S. 297, 302-03

(1918). Chief Justice Marshall, writing again in U nited States

v. Palmer

, 16 U.S. (3 Wheat.) 610 ( 1818), described questions

of forei gn policy as “belong[ing] more properly to those . . . who

can place the nation in such a position with respect to foreign

powers as to their own judgment shall appear wise; to whom are

entrusted all its

foreign relations ; then to that tribunal whose

power as well as duty is confined to the application of the rule

which the legislature may prescrib e for it.” I d. at 634 (emphasis

added).

Contemporary application of the Political Question

D o ctrine, as recognized by the District Court, draws on the

analysis set forth in Baker v. Carr

, 369 U .S. 186 (1962). The

Baker Court

first recognized that “the political question doctrine

is ‘primarily a function of the separation of powers.’” Schneider

v. Kissinger

, 310 F. Supp. 2d at 258 (quoting Baker , 369 U.S. at

2 10). In B

aker

, the Supreme Court enumerated six fact ors that

may render a case nonjus ticiable under the Political Question

Doctrine:

Prominent on th

e surface of any case held to involve a

political question is found a [1] textually demonstrable

constitutional commitment o f the issue to a coordinate

political department; or

[2] a lack of judicially discoverable

and manageable standards for resolving it; or [3] the

i mpossibility of deciding without an initial policy

determination of a

kind clearly for nonjudicial discretion; or

[4] the impossibility of a court’s undertaking independent7

resolution without expressing lack of respect due coordinate

branches of government; or [5] an unusual need for

unquest ioning adherence to a political decision already

made; or [6] the potentiality o f embarrassment of

multifari ous pronouncements by various departments on

one question.

Baker

, 369 U.S. at 217. The B aker analysis l

ists the six factors

in the disjunctive, not the conjunc tive. To find a political

question, we need only conclude tha t one factor is present, not

all. Nonetheless, we note that most of the factors counsel

against the exercis e of jurisdiction over the controversy that

Plaintiff-Appellants bring to the court.

1. T extually demonstrable constit utional commitment to

other branches

First, the lawsui

t raises policy questions that are textually

committed to a coordinate branch of government. As the

Supreme Court suggested in Marbu ry and made clear in later

cases, “The conduct of the foreign relations of our Government

is committed by the Constitu tion to the Executive and

Legislative

– ‘the political’

– Dep artments of the Government,

and th e propriety of what may be done in the exercise of this

political power is not subject to judicial inq uiry or decision.”

Oetjen , 246 U.S. at 302. Otherwise put, “foreign policy

decisions are the s ubject of just such a textual commitment,” as

conte mplated in B

aker v. Carr

. C omm. of the United States

Citizens v. Reagan , 859 F.2d 929, 933-34 (D.C. Cir. 1988).

Absent precedent, there could still be no doubt that

decision-making in the fields of foreign policy and national

secur ity is textually committed to the political branches of

gove rnment. Article I, Section 8 of the Constitution provides an

enumeration of powers of the legislature. That article is richly8

laden with delegation of foreign policy and national security

powers. Direct allocation of such power is found in Section 8,

Clause 1, “the Congress shall have the Power To

. . . provide for

the Common Defence

. . .; Clause 3, “To regulate commerce

w ith foreign nations”; Clause 10, “To define and punish Piraci e s

and Felonies committed on the High Seas and Offe nses against

the Law of Nations”; Clause 11, “To declare War, gr ant Letters

of Marque and Reprisal, and make Rules conc erning Captures

on Land and Water”; Clause 12, “To raise and support Armies

. . .”; Clause 13, “To provide and maintain a Navy”; Clause 14,

“to make Rules for t

he Government and Regulation of the land

and naval Forces”; Clause 15, “To provide for calling forth the

Militia to

. . . repel Invasions”; Clause 16, “ To provide for

organizing, arming, and disciplining, the Militia, and for

governing such Part of

them as may be employed in the Service

of the United States.”

In addition to these direct allocations to the Congre s s of

t h ese foreign relations and national security powers, other

sections and claus es of Article I bear on the subject to provide

further weight to the conclusion of contextual a llocation. For

example, Section

9 of Article I provides for the suspension of

the writ of habeas corpus “when in cases of . . . invasion the

public safety may require it.” Section 10 allocates to the

Congress the authority to provide consent to individual states,

without which th

ey may not “enter into any Agreement or

Compact with

. . . a foreign Power, or engage in War . . . .” This

is not to mention

the perhaps less direct but undeniably real

connection between national security and other powers of

Congress, such as that un der Article I, Section 8, Clause 1, to

“lay and collect Taxes,” and Clause 2, to “borrow money on the

credit of the United States.”

Just as Article I of the Constitution evinces a clear textual

alloca tion to the legislative branch, Article II likewise provides9

allocation of foreign relations and national security powers to

the President, the unitary chief executive. Article II, Section 2

provides, inter alia

, that “the President shall be Commander in

Chief of the Army an

d Navy of the United States, and of the

Militia of the several States, when called into the actual Service

of the U nited States . . . .” That same section further provides

that the President “shall have Powe r

, by and with the Advice and

Consent of the Senate, to make Treaties, . . . [and to] appoint

Ambassadors, other public Ministers and Cons uls.” Section 3

o f Article II provides that “he shall receive Ambassa dors and

other public Ministers

. . . and shall Commission all the Officers

of the United State s,” including obviously the officers of the

military.

While the language of textual commitment of the President

is not as extensive as that relating to the legislative branch,

nonet heless it is plain that that commitment is real. Indeed, the

Supreme Court has described the Pr esident as possessing

“plenary and exclusive power” in the international arena and “as

th e sole organ of the federal government in the field of

international relations . . . .” U nited States v. Curtiss-Wright

Export Corp. , 299 U.S. 304, 320 (1936).

By contrast, in Article III defining the judicial powe r of the

United States the closest there is to a reference to foreign

relations is the extension o f jurisdiction to “Cases affecting

Ambassadors, other public Ministers and Consuls.” U.S.

C ONST

., Art. III, § 1. Obviously all this provides is jurisdiction

for adjudication of cases against those of ficers. It provides no

authority for policymakin

g in the realm of foreign relations or

provision of national security. It cannot then be denied that

deci sion-making in the areas of foreign policy and national

security is textually committed to the political branches.10

Neither can it be gainsaid that the s ubject matter of the

instant case involves the foreign policy decisions of the United

States. In 1970, at the height of the Cold War, officials of the

execut ive branch, performing their delegated functions

concerning national security and foreign relations, determined

that it was in the best interest of the United States to take such

steps as they deemed necessary to prevent the estab lishment of

a government in a Western Hemisphere nation that in the view

of those official

s could lead to the establishment or spread of

communism as a gove rning force in the Americas. This

decision m

ay have been unwise, or it may have been wise. The

political branches may have since rejected the approach, or not.

In any event, that decision was classically within the province of

the political branches, no t the courts. As the Supreme Court has

r epeatedly reminded us, “[t]he political question doctri n e

excludes from judic ial review those controversies which revolve

around policy choices and value determ inations constitutionally

committed for resolution to the ha lls of Congress or the confines

of the Executive Branch.” Japan Whaling Ass’n v. Am.

Cetacean Soc’y

, 478 U.S. 221, 230 (1986). This is so because

“ [t]he Judiciary is particularly ill suited to make such decisions,

as ‘courts are fundamentally underequipped to formulate

national policies or d evelop standards for matters not legal in

nature.’” I

d. (quoting United States ex rel. Joseph v. Cannon

, 642 F.2d 1373, 1379 (D.C. Cir. 1981)).

2. No judicially discoverable and manageable standards

The second criterion of the Baker six brings under the

nonjusticiable umbrella of political question any case as to

which there is “a lack of ju dicially discoverable and manageable

standards for resolving it.” 369 U.S. at 217. This factor, even

t aken apart from the first factor, supports the District Court’s

conclusion that this case must be dismissed under Rule 12(b)(1).

As the District Court well understood, for a court to adjudicate11

this case would be for that court to undertake the d e termination

of whether, 35 years ago, at the height of the Cold War between

the United States and the western powers on the one h and and

the expanding communist empire on the other, “it wa s proper for

an Executive Branch official

. . . to support covert actions

against” a committed Marxist who was set to take power in a

Latin American country. S chneider , 310 F. Supp. 2d at 261-62.

Unlike the executive, the judiciary has no covert agents, no

intelligence sources, and no policy advisors. The courts are

therefore ill-suited to displace th e political branches in such

decision-making.

As we have said bef

ore of other security considerations in

anothe r context, “it is within the role of the executive to acquire

and exercise the expertise of prot ecting national security. It is

not within the role of the courts to second-guess executive

judgments m

ade in furtherance of that branch’s proper role.”

Center for Nat’l Sec. Studies v. Dep’t of Justice , 331 F.3d 918,

932 (D.C. Cir. 2003).

Appellants claim that the District Court erred in holding that

no standards exist for determining whether “it was prop er for an

Executive Branch official

. . . to support covert actions against

an undesirable figur e who was set to take power in a foreign

nation.” Schneider

, 310 F. Supp. 2d at 261-62. They assert that

the District Court “misconst rued Plaintiffs’ claims by framing

the issue as an attack on policy.” Appellants’ Br. at 14.

However, it is not at all clear to us why Appellants believe their

suit to be anything other than such an attack. They claim that

“the D.C. Circuit has held that courts should not invoke the

political question doctrine to avoid adjudication of a violation of

basic rights.” I

d. However, the only case from this court which

they offer for that proposition is R amirez de Arellano v

. Weinberger

, 745 F.2d 1500 (D.C. Cir. 1984). In fact, that case

stands for nothing at

all, as it was vacated by the Supreme Court12

in Weinberger v. Ramire z de Arellano , 471 U.S. 1113 (1985).

After the rema nd, this Court reversed and sent the case back to

the District Court for dismissal, with no reinstatement of the

original opinion ever occurring. S ee Ramirez de Arellano v. Weinberger , 788 F.2d 762 (D.C. Cir. 1986).

In the District Court, though not expressly before us,

Appel lants had urged that “‘the standards for evaluating

wrongful death are well established’

. . . and that the ‘Court need

not depart from these in managing the instant action.’”

Schneider , 310 F. Supp. 2d at 261. We agree with the District

Court that this formulation o f the issues is no help. As the

District Court stated, “[r]esolving the present lawsuit would

compel the court , at a minimum, to determine whether actions

or omissions by an Executive Branch officer in the area of

foreign relations and national security were ‘wrongful’ under

tort law.” I

d. at 262. We agree with the District Court and the

Eleventh Circuit in Aktepe v. United States , 105 F.3d 1400, 1404

(11th Cir. 1997), that recasting foreign policy and national

security questions in tort ter ms does not provide standards for

making or r eviewing foreign policy judgments. In A ktepe

, the

Eleventh Circuit considered a case brought by Turkish sailors

a lleging injuries and wrongful death suffered as a result of

missiles fired by a United States Navy vessel du ring North

Atlantic Treaty Organization trai ning exercises. In holding that

t he action was barred, inter alia

, by the second Baker political

question factor, that Circuit not ed that “in order to determine

whether the Navy conducted the missil e-firing drill in a

negligent manner, a court would have to determine how a

reasonable military force

would have conducted the drill.” I d.

The Aktepe court went on to observe “[a]s th e Supreme Court

no ted in a related context, ‘it is difficult to conceive of an area

of governmental activity in which the courts have less

compete nce.’” I

d. (quoting Gilligan v. Morgan

, 413 U.S. 1, 10

(1973)). Similarly here, in order to determine whether the13

covert operation

s which allegedly led to the tragic death of

General Schneider were wrongful, the court would have to

define the standard for the government’s use of covert

operations in conjun c tion with political turmoil in another

country. There are no justiciably discoverable and manageable

standards for the resolution of such a claim.

3. J udicial re solution would require an initial policy

determination of a kind clearly for nonjudicial discretion

Without rehashing the constitutional separation of powers

concerns raised by

the two B

aker factors already discussed, we

note that the same sort of problems raise the third fa ctor as well.

The District Court well stated the matter:

[P]laintiffs contend that “the Court is not here asked to pass

judgment on any perceived value or danger of the Allende

governme nt to United States interests and need not make

any policy determination[.]” P ls.’ Opp. I at 15. While the

plaintiffs are correct that the Cou rt might be able to avoid

evaluating the merits

of a potential Allende Government in

1970, it wou

ld nonetheless be forced to pass judgment on

the me ans used by the United States to keep that

government from taking power.

Schneider

, 310 F. Supp. 2d at 263. While we are not at all

convinced that we would be able to avoid evalua ting the merits

of the potential Allende government in 1970, we are completely

in agre ement with the District Court that we would be forced to

pass judgment on the policy-based decisi on of the executive to

use covert action to prevent that governmen t from taking power.

Allying United States intelligence operatives with dissidents in

another country to kidnap a national of that coun try may be a

drastic measure. To determine whether drastic measures should

be tak en in matters of foreign policy and national security is not14

the stuff of adjudication, but of policymaking. As the Supreme

Court has emphasized, “the ‘nuances’ of ‘the foreign policy of

the United States . . . are much more the province of the

Executive Branch and Congress than of this Court.’” C rosb y v.

Nat’l Foreign Trade Council , 530 U.S. 363, 386 (2000) (quoting

Container Corp. of

Am. v. Franchise Tax Bd.

, 463 U.S. 159, 196

(1983)).

Thus, we agree with the District Court that the third B aker

factor also counsels against jurisdiction over this case.

4. T he court could not proceed without expressing a lack

of respect to coordinate branches of government

From what we have concluded as to the first three B aker

factors, it seems apparent to us that we could not d etermine

Appellants’ claims without passing judgment on th e decision of

the exec utive branch to participate in the alleged covert

operations–p articipation in which, we note from the record, has

alread y been the subject of congressional investigation. We

therefore affirm the conclusion of the District Court that “[a]

court should refrain from entertaining a su it if it would be

unable to do so withou

t expressing a lack of respect due to its

coequal Branches of

Government.” 310 F. Supp. 2d at 264

(citing Baker v. Carr

, 369 U.S. at 217) (other citations omitted).

5. Summary

For the reasons set forth above, we conclude that at least the

first four of the six Bak er factors compel a determination that

this case raises political questions commit ted to the political

branches and therefore is beyond the jurisdiction of the courts.

Appellants counter the government’s political question

arguments by asserting that this case does not fall within the

Political Question

Doctrine because “there is a difference15

be tween policy and the implementation of policy, and . . . the

latter is within the realm of the judiciary to oversee.”

A p pellants’ Br. at 12. For this proposition, they cite D KT

Memorial Fund Ltd. v. Agency for Int’l Dev. , 810 F.2d 1236

(D.C. Cir. 1987), which stated, “whereas attacks on foreign

policymaking are nonjusticiable, claims alleging noncompliance with the law are justici able, even though the limited

review that the court undertakes may have an effect on foreign

affairs.” 810 F.2d at 1238.

Appellan ts are indeed correct that the D KT Memorial

opinion so stated. However, it did so on a record immediately

distinguishable fro m the controversy raised by the present

litigation. D

KT Memorial concerned not the executive’s making

o f a policy decision and implementing that decision, but rather

a challenge to the constitutio nality of the manner in which an

agency sought to implement an earlier policy pronouncement by

the President. Indeed, after the jurisdictional decision in D KT

Memorial had ordered the matter remanded to the District Court,

the District Court’s decision on remand ca me before this Court

in a second appeal. We then made plain the narrowness of our

original jurisdictional holding:

In the present case, where the President acted und e r a

congressional grant of discretion as broadly worded as any

we are likely to see, and where the exerc ise of that

discretion occurs in the area of foreign affairs, we cannot

disturb his decision simply because some mig ht find it

unwise or be cause it differs from the policies pursued by

previous administrations.

DKT Memorial Fund Ltd. v. Agency for Int’l Development

, 887

F.2d 275, 281-82 (D.C. Cir. 1989). Thus, our ultimate

disposi tion of the D

KT Memorial question supports rather than

undermines the District Court’s holding that the present case16

falls within the realm of nonjusticiable political questions first

recognized in Marbury v. Madison and delin eated in B

aker v.

Carr

.

III. Other Issues

Appellants halfheartedly make an i ll-formed argument that

the actions of Defendant Kissinger in the Schneider/Allende

matter were ultra vires

. Apparently it is their contention that, as

such, the entire

Schneider/Allende matter therefore falls outside

the Political Question Doctrine. They offer us a single sentence

on the subject in their principal brief: “Plaintiffs maintain that

Defendant Kissinger’s actions were ultra vires .” Appellants’ Br.

at 12. This maintenance by plaintiffs is accompanied by a

footnote citing Linder v. Portocarrero

, 963 F.2d 332, 336 (11th

Cir. 1992), for the proposition that “‘[t]he [sic] c o mplaint

challenges neither the legitimacy of the United S tates foreign

policy toward the contras, nor does it re quire the court to

p ronounce who was right and who was wrong in the Nicaraguan

civil war,’ but instead is ‘narrowly focused on the lawfulness of

the defendan

ts’ conduct in a single incident.’” The footnote also

includes two other cases, Lamont v. Woods

, 948 F.2d 825, 833

(2d Cir. 1991), and Population Inst. v. McPherson , 797 F.2d

1062, 1068-70 (D.C. Cir. 1986), each of which, like our decision

in DKT Memorial

, supra

, supports the proposition that foreign

policy decisions are outside the jurisdiction of the courts by

reason of the political question doctrine, but nonetheles s permits

adjudication of admin

istrative matters arising out of the

implementation of foreign policy. Not only do none of these

cases support the proposition that we ca n adjudicate an entire

line of foreign policy decisions, such as Appellants seek to bring

to court in the present case, b ut Appellants have not further

developed this argument for our adjudication.17

In the Distr

ict Court, as we noted above, Appellants’

amended complaint struck the la nguage of the original

complaint alleging very specifically the personal involvement of

the Presiden

t of the United States. Apparently they now are

attempting to argue that the acts of a foreign policy a dvisor are

not fore i gn policy and therefore do not come within the Political

Question Doctrine. In an apparent attempt to further this strange

maneuver, the am

ended complaint does include the words “ u ltra

vires ” in its second paragraph to the following effect:

The documents show that the knowing practical assistance

and enco uragement provided by the United States and the

official and ultra vires acts of Henry Kissinger resulted in

Gen eral Schneider’s summary execution, torture, cruel,

inhuman and degrading treatment, a rbitrary detention,

assault and battery, negligence, intentional infliction of

emotional stress, and wrongful death.

Am. Compl. ¶ 2, App. at 161. The ultra vires language raises its

head again in the eighth claim for relief, which states that:

Plaintiffs argue in the altern ative and without waiving their

ultra vires argu

ments, that at the time of the wrongful acts,

Defendant Kissinger and other United States agents were

employ e es of federal agencies, including the National

Security Council and Central Intelligence Agency, and were

acting within the scope of their office or employment.

Am. Compl. ¶ 90, App. at 181-82.

We understand the need of litigants at times to plead in the

alternative and even to plead inconsistently in the alternative.

Nonetheless, the language purporting not to waive ultra vires

“arguments” does not help a complaint that never alleges a

single claim for relie f in u ltra vires terms. Each of the claims18

1 It is not enough merely to mention a possible

argument in the most skeletal way, leaving the court

to do couns el’s work, create the ossature for the

argument, and put flesh on its bones. As we recently

sai d in a closely analogous context: Judges are not

expected to be mindreaders. Consequently, a litigant

h as an obligation to spell out its arguments sq uarely

and distinctly, or else forever hold its peace.

United States v. Zannino , 895 F.2d 1, 17 (1st Cir. 1990) (internal

quotation marks omitted). fo r relief alleges acts by the Defendants which in the amended

complaint cons ist only of the National Security Advisor and the

United States. Their joint actions together can hardly be called

a nything other than foreign policy. It may be that Plaintiffs

intended to al

lege some other cause of action which might have

fallen o utside the Political Question Doctrine, but this does not

change the questions before us into others than we have

discussed above. 1

We caution that the lack of judicial authority to oversee the

conduct of

the executive branch in political matters does not

leave the executive power unb ounded. Granted, it is true, as

Chief Justice Marshall reco gnized in M arbury

, that “the injured

individual has no remedy.” M arbury

, 5 U.S. (1 Cranch) a t 164.

Nonetheless, the nation has recompense, and the checks and

balances of the Constitution have not failed. The political

branches effectively exercise such checks and bal ances on each

other in the area of political questions.

If the executive in fact has exceeded his appropriate role in

the constitutional scheme, Congress enjoys a broad range of

authorities with which to exer cise restraint and balance. We

catalogued above those author ities specifically related to

international relations and national security, but as we also noted19

there, Congress wields the general power to la y and collect taxes

and to borrow m

oney on the credit of the United States.

Without an appropriation from Congress to fund an undertaking,

the President cannot conduct any such undertaking. See Lichter

v. United Stat es , 334 U.S. 742, 756 (“The constitutional power

of Congress to support the armed forces with equipment and

supplies is . . . clear and sweeping.”). Indeed, Congress has used

its appropriations power

to draw limits upon the executive’s

activity in the area of foreign aff airs. For example, in the

Boland Amendment to the Department of Defense

Appropriat

ions Act, 1983, Pub. L. No. 97-377, § 793, 96 Stat.

1865 (1982), Congress proscribed the CIA from funding or

participating in

efforts to overthrow the Nicaraguan government.

The B oland Amendment example is particularly striking in that

elements of the executive branch apparently violated these

congress ional restraints. Thereafter, Congress exercised one of

its other powerful tools against executive overreaching:

congressional oversight. The alleged breach of the Boland

Amendment gave rise to the Iran/Contra proceedin g s, which in

time gave rise to investigations by an Independent Counsel

acting unde

r authority conferred by Congress in the Ethics in

Government Act of 1978, as amended, 28 U.S.C. § 591 et s eq.

(1988).

In the extreme case, Co n gress can repair to its authority

under Article I, Section 3 of the Constitution to bring

impeachment proceedings against an overreaching President. In

fact, with reference to the very admi nistration at issue in this

case, Congress did just that.

In short, the allocation of

political questions to the political

branches is not inconsistent wit h our constitutional tradition of

limited government and balance of power s. It is precisely

consistent, for it embodies limits and ba lances between the

political branches wit

hout the intrusion of the courts into areas20

beyond our proper authority and expertise.21

IV. Conclusion

For the r easons set forth above, we affirm the judgment of

the District Court dismissing this action for want of jurisdiction

pursuant to Rule 12(b)(1).

So ordered.