In the mid-1980s U.S. human rights lawyer and activist Jennifer Harbury began working to monitor and document human rights abuses in Guatemala and aid asylum seekers fleeing that country’s repressive regime. The decade was a particularly brutal period of the 30-year civil war in Guatemala when military forces fighting the indigenous-based leftist insurgency killed tens of thousands of civilians and massacred hundreds of Mayan villages.
In 1990 Harbury traveled to a combat zone to research a book she was writing on the resistance movement. There she met Mayan leader Efraín Bámaca Velásquez, whom she married in 1991. On March 12, 1992, Bámaca vanished during a brief skirmish with government soldiers. The U.S.-backed Guatemalan military claimed that Bámaca had committed suicide during the gunfight to avoid being captured alive. However, in early 1993 another captured guerrilla escaped from army hands and reported that Bámaca was being secretly held and severely tortured by army intelligence officials.
Harbury immediately sought help from the U.S. State Department, Congress and the National Security Council. State Department officials repeatedly told Harbury and members of Congress that they had no information regarding her husband’s fate or any independent evidence regarding clandestine prisons in Guatemala. However, they assured her they would investigate the matter and keep her informed. When she received no information from the U.S. or Guatemalan governments, she began a series of hunger strikes.
During Harbury's second hunger strike in Guatemala in 1994, CBS’s “60 Minutes” reported that that the CIA had in fact notified the State Department that Bámaca had been captured alive. The State Department later confirmed the report. The following year, during Harbury’s third hunger strike, then-Rep. Robert Torricelli (D-N.J.) released classified documents confirming that Bámaca had been killed while in custody in 1993—more than a year after his capture—on the orders of a Guatemalan military officer, Col. Julio Alpirez, who was also a paid CIA informant.
The Presidential Oversight Board investigated the case, and although it found no evidence of a deliberate cover up, it did note that if the information had been located "when Jennifer Harbury first raised the issue of her husband's fate, the [State] Department might have been able at a much earlier date to provide her with useful information about her husband's fate." Two senior CIA officials for Latin America were dismissed and several others were demoted or reprimanded as a result of the affair.
For Harbury, confirmation of her husband’s death marked the beginning of a new quest. In 1995 she brought a suit against seven government officials on several counts, including that by withholding information they had deliberately misled her and consequently violated her constitutional right to access to the courts. Harbury claimed that U.S. officials knew Bámaca was being held by the Guatemalan army and moreover, that they knew he was being tortured and may have hoped to benefit from information he could provide. Harbury argued that if the information on her husband had been declassified in a timely manner, she could have gone to court to save her his life. Instead, by the time the truth was told, her husband was dead. The defendants included then-Secretary of State Warren Christopher, then-National Security Advisor Andrew Lake and then-Ambassador to Guatemala Marilyn McAfee.
The U.S. District Court for the District of Columbia dismissed the case without trial in 1999. However, in 2000 a three-judge panel of the U.S. Court of Appeals for the District of Columbia partially reinstated it, allowing Harbury to proceed on the one theory that the officials had misled her to protect themselves from being sued. Judges on the appeals panel cited other circuit court cases in which it was found that “government cover-ups can infringe the right of access to courts.” In part because of government misinformation, the court concluded, Harbury’s access to an “effective and meaningful” day in court had been denied. Still, the court ruled that in order for government officials to be sued, they must have been aware that their actions were violating someone’s constitutional rights.
The government defendants then sought review by the Supreme Court. When the case reached the court in February 2002, attorneys for the defendants argued that if upheld, the appeals court ruling would mean that government officials violate the law whenever they conceal information. Such a finding, their lawyer Robert Cordray said, would “chill the speech and the discretion of government officials” and interfere with the conduct of foreign policy. Cordray also argued that the ruling could lead to government officials being sued for routine acts such as denying Freedom of Information Act requests.
Lawyers for the Bush administration, which joined the case on the side of the defendants, warned that should Harbury prevail, government officials would face the prospect of being sued any time they were not fully responsive to citizen inquiries, leading to “an expensive and burdensome” process and “a regime of ‘no comment’ or brushoffs, the precise antithesis of the open government the framers [of the Constitution] envisioned.”
“There are lots of different situations when the government has legitimate reasons to give out false information,” Solicitor General Theodore Olsen said before the court. Harbury, who represented herself, countered that she was not seeking a broad constitutional rule of truth, but rather a ruling that makes officials liable for deceiving a citizen in a way calculated to discourage the filing of a lawsuit.
The court ultimately sided with the defendants, ruling on June 25, 2002 that Harbury's complaint did not effectively state a constitutional claim for denial of access to the courts. In concurring with the court’s opinion, Justice Clarence Thomas wrote that he found "no basis in the Constitution for a 'right of access to courts' that effectively imposes an affirmative duty on government officials either to disclose matters concerning national security or to provide information in response to informational requests."
However, the court stopped short of affirming that the government had the right to make false statements or that torture might be legal under certain circumstances. Writing on a Web site devoted to her cause and broader social justice issues in Latin America, Harbury said, “At the Supreme Court itself, the U.S. government's main claim was that federal officials must have the right to lie outright to the American public. A mere ‘no comment’ was claimed inadequate; intentional deception was urged as a political necessity. None of these arguments were accepted by the court.”
Despite the defeat of her Supreme Court claim, Harbury believes her case leaves the door open for others to contest the government’s right to actively deceive. Her case, she pointed out, was taken up shortly after Sept. 11, 2001, and she asserted that the events of that day likely colored its outcome. Harbury’s remaining tort claims against the defendants are still pending in district court.
For more information
“Slain Rebel’s Wife to Plead Case Before High Court.” The Washington Post. March 18, 2002
“Widow Argues for Right to Sue Officials.” The New York Times. March 19, 2002
“Government deception no basis for widow's lawsuit.” The Reporters Committee for Freedom of the Press. June 25, 2002
“Supreme Court rules against claim of government stonewalling.” The Associated Press. June 21, 2002
“Bridge of Courage: Life Stories of the Guatemalan Compañeros and Compañeras.” Jennifer Harbury. Common Courage Press, 1993.