At a conference sponsored by three conservative organizations, U.S. Supreme Court Justice Clarence Thomas claimed that people are losing trust in the Supreme Court. That’s not exactly true. That ship sailed a long time ago. The truth is that people lost trust in the Supreme Court when the Court decided to defer to the omnipotent power of the national-security branch of the federal government. When the Court did that, it abrogated its sworn duty to defend the Constitution and, in the process, forever disgraced itself.
The same thing happened in Chile after the national-security branch of the Chilean government, with the full support of the Pentagon and the CIA, ousted the democratically elected socialist president, Salvador Allende, from power and replaced him with a rightwing military dictator named Augusto Pinochet. The Chilean Supreme Court not only upheld the manifestly unconstitutional act, it then proceeded to turn a blind eye to the kidnappings, torture, indefinite detentions, rapes, executions, or disappearances of tens of thousands of innocent people at the hands of the new regime.
Many years later, a body representing judges in Chile issued a formal apology for what the Chilean judiciary had done. They were clearly ashamed of what had happened, and rightly so. They stated, “The time has come to ask for the forgiveness of victims … and of Chilean society.”
Unfortunately, we are still not there here in the United States. But it would have been nice if Justice Thomas had started the ball rolling by issuing a similar apology at that conservative conference.
Consider, for example, the Pentagon’s and the CIA’s program of state-sponsored assassinations. Nowhere does the Constitution authorize state-sponsored assassinations. In fact, the Fifth Amendment specifically prohibits federal officials from killing people without due process of law. That prohibition includes foreign citizens.
Nonetheless, the Supreme Court and the entire federal judiciary have turned a blind eye to the Pentagon’s and the CIA’s assassination program, just as the Chilean judiciary turned a blind eye to the Pinochet regime’s program of executions, torture, rapes, and disappearances of innocent people.
Gen. Rene Schneider. Licensed under Creative Commons.
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A good example of a CIA state-sponsored assassination involved a conspiracy by the CIA to kidnap the overall commander of Chile’s armed forces, Gen. Rene Schneider, in order to set the stage for the coup that would oust Allende from power. The kidnapping attempt left Schneider shot dead on the streets of Santiago.
As I detail in my new book An Encounter with Evil: The Abraham Zapruder Story, Schneider was an entirely innocent man. He was assassinated because he refused to permit the Chilean national-security establishment to do what the CIA wanted — to initiate a coup that would oust Allende from power. Schneider’s position was that he would support and defend the Chilean constitution, which did not provide for a coup as a way to remove a democratically elected president.
Schneider’s children later filed suit in a U.S. district court for the wrongful death of their father. It should have been an open-and-shut case, in favor of the children. After all, this was a state-sponsored murder of a totally innocent man, plain and simple.
But not for the federal judiciary. Following its long-standing policy of deference to the authority of the national-security establishment, the federal courts threw the Schneider family out on their ear, not even permitting them to take oral depositions of the CIA goons who orchestrated the kidnapping and assassination.
The court’s reasoning? It said that it wasn’t about to second-guess the national-security establishment, at least not when it comes to assassination. When it comes to assassination, those in our national-security establishment clearly are the experts. The federal courts don’t know anything about assassination. The federal courts will just have to defer to the expertise and wisdom of the Pentagon and the CIA with respect to assassination, just as the Chilean courts deferred to the expertise and wisdom of Pinochet’s national-security establishment when it came to executions, rapes, torture, and disappearances.
Imagine if the DEA established a program of state-sponsored assassinations of suspected drug-war violators, much like the police were doing in the Philippines to enforce the drug war. There is no question but that the U.S. federal courts would immediately grant an injunction stopping such unconstitutional action. In other words, they wouldn’t just defer to the expertise and wisdom of the DEA. The last thing they would do is claim that the DEA expertise on assassination trumped the express provisions of the Constitution.
Then why the different treatment for the Pentagon and the CIA? Why the longtime deference to their authority? The Supreme Court and the lower federal courts were supposed to be a final bastion against unconstitutional conduct on the part of all federal officials, not just some of them.
By deciding to defer to the overwhelming power of the Pentagon and the CIA, the Supreme Court and the federal judicially abrogated their sworn constitutional duty and their responsibility to the American people. They owe an apology to the American people — the same type of apology that the Chilean judges issued to the Chilean people for doing the same thing. Until that day, there will never be trust in the Supreme Court or the rest of the federal judiciary.