Christopher, Warren, et al. v. Harbury, Jennifer (06/20/2002)

By: Mary Ellen Moore, Medill News Service

Questions presented

(1) Do allegations that senior State Department and National Security Council officials withheld information and intentionally misled private citizen about a foreign rebel leader in the captivity of a foreign government state a violation of the constitutional right of access to the courts, when the only claim is that the defendants' speech was intentionally misleading and there are no allegations that the plaintiff ever tried to file a lawsuit and was actually hindered in that effort? (2) If the court concludes that a constitutional violation is properly grounded on allegations such as these, do government officials violate clearly established law whenever they allegedly mislead private citizen or conceal information and it is later claimed that they intended to and did hinder the filing of a hypothetical lawsuit?

Brief

In 1991, American lawyer Jennifer Harbury married Guatemalan rebel Efrain Bamaca-Velasquez. Several months after their Texas wedding, Bamaca returned to his country to fight for the Guatemalan National Revolutionary Union, a leftist guerrilla organization. On March 12, 1992, he disappeared.

The Guatemalan Army claimed it buried Bamacas body after he committed suicide during an armed skirmish. But Harbury says that her husband was captured alive and tortured for twelve to eighteen months by Guatemalan military officers. She claims they chained him naked to a bed, beat him, threatened him and encased him in a full-body cast to prevent him from escaping. Eventually, probably around September 1993, they executed him on orders from a Guatemalan army officer who was also a paid CIA informant, according to Harbury.

About a year after her husband disappeared, a prisoner who had escaped from a Guatemalan interrogation camp told Harbury that her husband was alive. She contacted the U.S. State Department. Although officials told Harbury they would look into the matter, they never gave her any information.

In August 1993, Harbury obtained permission to open Bamacas grave, and she found that the body inside did not belong to her husband. Upon this discovery, she met with Marilyn McAfee, the U.S. Ambassador to Guatemala. Again Harbury was told the U.S. government would investigate, and again she received no information.

An October 1994 episode of the television program 60 Minutes prompted the State Department to publicly confirm Bamacas capture. But the agency also said it had no information as to whether or not he was still alive. Later, National Security Advisor Anthony Lake told Harbury that the government had ""scraped the bottom of the barrel"" for information about her husband.

Two years, two hunger strikes and many Freedom of Information Act requests later, Harbury filed suit in federal court. She sued the CIA, the State Department, the National Security Council and other officials, claiming that the U.S. government was complicit in her husbands death and had intentionally misled her to conceal its role. She framed the allegations as fairly novel deprivations of her constitutional rights; specifically, her 5th Amendment right to due process, her right to familial association and her right of access to the courts.

On March 22, 1999, U.S. District Judge Colleen Kollar-Kotelly threw out Harburys case before it went to trial, finding that Harbury had failed to allege the deprivation of any actual constitutional rights, and that even if she had, the government defendants were entitled to qualified immunity.

Almost two years later, on Dec. 12, 2000, a unanimous panel for the Court of Appeals for the District of Columbia reversed on one of Harburys claims: that government officials violated her constitutional right of access to the courts.

Judge David Tatel wrote for the appeals court, ""If Harburys allegations are true, then defendants reassurances and deceptive statements effectively prevented her from seeking emergency injunctive relief in time to save her husbands life.""

He continued: ""We think it should be obvious to public officials that they may not affirmatively mislead citizens for the purpose of protecting themselves from suit.""

In response, former Secretary of State Warren Christopher and other government officials appealed to the U.S. Supreme Court, arguing that they cannot be sued for withholding information about secret or covert operations.

According to their lawyer, Richard Adams Cordray, the issue has even greater significance in the wake of the Sept. 11 terrorist attacks and the hunt for terrorists that followed. ""The issue in the case is whether government officials can be held in violation of the Constitution if they conceal or mislead citizens,"" he said. ""Its very much at issue with whats going on in the world right now.""

But Harburys lawyer, Jodie Kelley, said its preferable for government officials to say nothing rather than deliberately mislead someone. ""The government is always free to say, Ôno comment,"" she told the Associated Press. ""This is quite different. Here, government officials affirmatively misled her — telling her they had scraped the bottom of the barrel and there was nothing, no information.""

On Dec. 10, 2001 the U.S. Supreme Court granted certiorari in the case.

On June 20, 2002, the Court unanimously held that Harbury's complaint failed to state a cause of action for access.

Writing for the Court, Justice David Souter said that the complaint did not come even close to stating a constitutional denial-of-access claim.