No one should have been surprised over the Supreme Court’s recent ruling of absolute immunity for official acts carried out by a U.S. president. The federal judiciary has long held that the U.S. national security state — i.e., the Pentagon, CIA, and NSA — is immune from civil or criminal liability for its illegal acts, so long as such acts are ostensibly intended to protect “national security.” Given the national-security establishment is immune in such instances, it would have appeared somewhat unusual for the Supreme Court to not accord the president with the same privilege.
Consider the conspiracy in 1970 to kidnap Gen. Rene Schneider, the overall commander of Chile’s armed forces. There is no question but that such conspiracy existed. It was composed of CIA officials in Virginia and federal officials in Washington. The conspiracy involved hiring Chilean thugs to kidnap Schneider and remove him as an obstacle to a U.S.-inspired coup in Chile, one that would, it was hoped, remove democratically elected president Salvador Allende from power and replace him with a pro-U.S. military general.
Gen. Rene Schneider. Licensed under the Creative Commons Attribution 3.0 Chile license.
The CIA has always denied that the conspiracy involved a plan to murder Schneider. But that denial has to be false. After all, what were they going to do with him after they kidnapped him? They couldn’t exactly return him to power, where he would again serve as an obstacle. Undoubtedly the plan was to have one of the thugs shoot and kill Schneider and then have the CIA and other federal officials express “shock” and “disapproval.”
But even if the CIA’s denials are correct, that still didn’t let the kidnap conspirators off the hook. That’s because of the felony-murder rule, which holds that if someone is killed during the course of a felony, the people involved in committing the felony are responsible for murder. Thus, when Schneider was shot during the kidnapping attempt and later died, the U.S. kidnap conspirators were legally responsible for his murder.
Yet, notwithstanding the fact that it was undisputed that the kidnap conspiracy existed, the Justice Department never sought a criminal indictment against the conspirators for kidnapping and murder. That’s because they knew that the federal judiciary would hold the conspirators immune since they were operating to protect “national security.”
In fact, the Schneider sons later filed a civil suit in federal district court for the wrongful death of their father. The federal judiciary denied them relief, holding that the conspirators were immune from liability because they were operating to protect “national security.” A federal appellate court held that when it comes to actions like kidnapping and assassination, the federal courts lack the expertise to second-guess the national-security establishment.
That’s the reason why the national-security establishment never had any worries about being prosecuted for its regime-change operation against President Kennedy in Dallas in November 1963. Let’s assume that the Dallas County District Attorney’s office had brought murder and conspiracy-to-murder charges against certain CIA and Pentagon officials. All that those officials would have had to have done is make the case that JFK’s policies were threatening “national security” and that the assassination was necessary to protect “national security” — the same argument that the national-security establishment would use ten years later to justify removing Salvador Allende from power. The prosecution would have been dismissed on grounds of immunity.
The Supreme Court’s recent ruling regarding immunity applies to the president but there is no question that it applies equally to the Pentagon, the CIA, and the NSA. Ordinarily, the president and his national-security establishment are on the same wavelength. But as we have seen with the Chilean coup and the U.S. coup in November 1963, sometimes the executive branch goes to war against the national-security branch. When that happens, there is no question as to which side is going to win and that the winning side would receive immunity from the courts upon a showing of protecting “national security.”