A political and legal drama that began 10 years ago in a remote corner of Guatemala reaches the Supreme Court today, where a lawyer-activist will argue for the right to sue former senior U.S. officials for allegedly covering up the murder of her husband, a Guatemalan rebel leader who died in Guatemalan army custody.
Jennifer K. Harbury says her constitutional right of access to the courts was violated by then-Secretary of State Warren M. Christopher, then-national security adviser Anthony Lake, and five other White House and State Department officials who, she says, falsely assured her in 1993 and 1994 that they were looking into Efrain Bamaca Velasquez's fate.
"But for those deceptive statements," Harbury said in an interview, "I could have gone to court and saved his life."
Although its origins lie in a bygone chapter of U.S. foreign policy, and the ultimate result is likely to turn on how broadly the justices define the right of access to the courts, the Harbury case is attracting attention as a conflict between citizens' right to know what their government is doing – and the government's need to operate in secrecy under some circumstances.
It arises at a time when the United States and its allies are conducting secret intelligence, law enforcement and military operations against terrorists around the world – amid criticism from civil libertarians that secrecy could prevent accountability for violations of human rights.
Christopher, Lake and the other officials, whose appeal petition to the Supreme Court mentioned the war on terrorism as a reason for the court to hear the case, deny that they intentionally misled Harbury, said their attorney, Richard Cordray. They also argue that Harbury could never have gone to a U.S. court to save her husband, noting that U.S. judges lack authority over Guatemala's military.
For procedural reasons, however, the officials are obliged to make the case that she would have had no right to sue even if they had deliberately lied. Such deception, they argue, must remain an option for officials when there is no other way to protect the national interest.
The Bush administration has weighed in on their side. "The perhaps unfortunate reality is that the issuance of incomplete information and even misinformation by government may sometimes be perceived as necessary to protect vital interests," U.S. Solicitor General Theodore B. Olson wrote in a friend-of-the-court brief.
Harbury said that the case "really doesn't fit the war on terrorism."
"It doesn't stand for anything the U.S. can or can't do in time of war," she said. "This is about whether officials can lie when someone they are not at war with and who presents no national security threat is being tortured."
Officials could have simply answered "no comment" or refused to confirm or deny the existence of information, Harbury maintains. Armed even with such an ambiguous signal, she said, she could have sought the help of U.S. courts, which "can move instantly in a life or death situation."
The American Civil Liberties Union and the American Trial Lawyers Association have filed briefs on Harbury's behalf.
The trial lawyers' brief contrasts Olson's position with Secretary of Defense Donald H. Rumsfeld's recent disavowal of reported Pentagon plans to spread false news reports as part of the war on terror.
"The principle reflected in [Rumsfeld's] statement of government policy, not the cynical view expressed by the Solicitor General, has been, is, and ought to be the law of the land," they note.
In representing herself at oral argument, Harbury is attempting something only a few people have tried in recent years.
Harbury, who joined the Supreme Court bar in January, shortly after the justices agreed to hear her case, said she is an experienced attorney who has already argued the matter in other forums around the world.
Her former attorneys, who fought the case for her for five years in the lower courts, filed a friend-of-the-court brief on her behalf and asked the court to give them part of her 30 minutes of argument time. Harbury did not support the move, and the court denied it.
"You just end up repeating yourself," she said.
Harbury is certainly no stranger to center stage. Her long and highly publicized campaign over Bamaca's disappearance has made her a hero to critics of U.S. policy in Latin America.
She became interested in Guatemala as a result of her work for Central American asylum-seekers in the 1980s, a period when a brutal anti-guerrilla campaign by the army killed tens of thousands of civilians.
She became a trusted supporter of the guerrillas – and, in 1991, the wife of Bamaca, a senior commander whom she met at a guerrilla camp on the slopes of a volcano.
On March 12, 1992, Bamaca was captured in an ambush by Guatemalan soldiers. The army initially said he killed himself after the battle, but in early 1993, another captured guerrilla escaped and reported that Bamaca had been taken alive and was being tortured at a military base.
Harbury began demanding to know Bamaca's fate, at one point engaging in a 32-day hunger strike in Guatemala City. She gained media attention and access to White House and State Department officials, but, she says, they falsely assured her that the U.S. government knew nothing of his fate.
However, in October 1994, CBS's "60 Minutes" reported that the United States had intelligence that Bamaca had been captured alive, a report the State Department acknowledged was true.
In the ensuing controversy, it was also confirmed that Bamaca had died in army custody and that a Guatemalan colonel involved in Bamaca's interrogation had been a paid CIA informant.
A report on the case by the President's Intelligence Oversight Board found no deliberate coverup but noted 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."
As a result of the Guatemala affair, two senior CIA officials for Latin America were dismissed and several others demoted or reprimanded, and the CIA wrote new guidelines for recruiting agents with tainted human rights records.
In 1995, Harbury filed a suit for damages against a long list of U.S. officials in the U.S. District Court for the District of Columbia. Four years later, the court dismissed the lawsuit.
She appealed, and on Dec. 12, 2000, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit partially reinstated the case.
"We think it should be obvious to public officials that they may not affirmatively mislead citizens for the purpose of protecting themselves from suit," the court said.
Christopher, Lake and the others petitioned for Supreme Court review and the court granted the petition in December.
The case is Christopher v. Harbury, No. 01-394.
© 2002 The Washington Post Company