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Jennifer Harbury Argues for Right to Sue Officials
Published on Tuesday, March 19, 2002 by the New York Times
Widow Argues for Right to Sue Officials
by Linda Greenhouse
 
WASHINGTON, March 18 — Jennifer K. Harbury, the Harvard Law School-educated widow of a Guatemalan rebel leader, argued in the Supreme Court today for the right to sue government officials who did not tell her all they knew about his capture, torture and death at the hands of the Guatemalan military in the early 1990's.

Ms. Harbury argued that had the officials told her that her husband, Efraín Bámaca-Velásquez, who was assumed to be dead, was being held secretly by Guatemalans working with the Central Intelligence Agency, she could have gone to court in time to intervene and save his life.

Jennifer Harbury
Jennifer Harbury leaves the Supreme Court in Washington Monday, March 18, 2002, after arguing for her right to sue U. S. government officials for allegedly covering up the murder of her husband. Harbury's husband, Efrain Bamaca Velasquez died in Guatemalan army custody. Harbury is representing herself. (AP Photo/Dennis Cook)

The officials of the State Department, National Security Council and the C.I.A. told her they had no information "when in fact there was so much information that I could have been inside a court in 24 hours," Ms. Harbury said. She said it was ironic that her case had reached "the highest court in the land, exactly 10 years and 6 days too late."

Her reference was to the date of Mr. Bámaca's disappearance, March 12, 1992. The Guatemalan army first claimed that he had committed suicide, but the grave that Ms. Harbury received permission to open did not contain his body. Senator Robert G. Torricelli, Democrat of New Jersey, then a member of the House of Representatives, released classified information in 1995 indicating that Mr. Bámaca had been killed on orders from a Guatemalan army officer who was a paid intelligence agency "asset." Ms. Harbury's lawsuit, filed the next year, argued that had she known the truth, she could have obtained an injunction to stop the payments.

It is not unheard of for lawyers to argue their own cases before the Supreme Court. Senator Arlen Specter, Republican of Pennsylvania, did so in 1994 in an unsuccessful effort to stop the closing of the Philadelphia Naval Shipyard. Christopher H. Lunding, a partner in a New York law firm, brought his $3,724 state tax dispute to the Supreme Court in 1997 and won handily.

But not in the memory of any justice now serving had the courtroom been the stage for the passionate declarations and accusations that poured forth today from Ms. Harbury.

"I'm saying that my day in court, when I could have saved my husband's life, has been extinguished wrongfully," she said. "There is no way I can recover that day."

Ms. Harbury's legal claim is that by telling her that they were looking into Mr. Bámaca's disappearance but knew nothing about it, the defendants deprived her of her due process right to "meaningful access to the courts."

The justices appeared uneasy, both in Ms. Harbury's presence and because of potential implications that the two lawyers who argued on behalf of the federal defendants drew from her argument.

The seven defendants include Warren Christopher, the former secretary of state; Anthony Lake, the former national security adviser; and Marilyn McAfee, the former ambassador to Guatemala. Their lawyer, Richard A. Cordray, and Solicitor General Theodore B. Olson, arguing on their behalf for the federal government, warned that to accept the theory of Ms. Harbury's case would open government officials to the prospect of liability for a constitutional violation for any reason that those officials were not fully responsive to citizen inquiries..

"There are lots of different situations when the government has legitimate reasons to give out false information," Mr. Olson said.

If a government official lies, "there are ways to deal with it," like through official discipline, short of an "expensive and burdensome" constitutional lawsuit, he said. The result, he said, would be "a regime of `no comment' or brushoffs, the precise antithesis of the open government the framers envisioned."

Ms. Harbury replied that she was not arguing for a general constitutional rule of candor, but more specifically for a rule that makes officials liable for affirmatively deceiving a citizen in a way calculated to discourage the filing of a lawsuit.

"I'm not saying they had a duty to locate me and knock on my door," she said, describing her case as presenting a "very narrow question."

Justice Anthony M. Kennedy said, "I have trouble with that."

Justice Kennedy pointed out that the officials' lawyers had described the case as "a sweeping, revolutionary cause of action."

"We have to look at what we're creating as a general rule," he added.

Ms. Harbury's accusations about the officials' motivations are unproven, but in the procedural posture of the case were assumed to be true for purposes of testing her legal theories. The federal district court here dismissed her case without a trial. The United States Court of Appeals for the District of Columbia Circuit, ruling in December 2000, upheld most of the dismissal but permitted her to proceed on the one theory that was before the court today: that the officials affirmatively misled her for the purpose of protecting themselves from suit.

Last December, the justices agreed to hear the officials' appeal, Christopher v. Harbury, No. 01-394. The appeal presented a two-tiered argument: that the constitutional right, as framed by Ms. Harbury's suit, did not exist, or that if it did, its existence was so unclear at the time of the events in 1993 that the officials were entitled to immunity from suit.

Several justices today questioned whether Ms. Harbury would have been able to accomplish anything had she been able to file a suit while her husband was still alive.

"Access to court to do what?" Justice Ruth Bader Ginsburg asked.

Ms. Harbury said she would have sought an injunction that would have prohibited the C.I.A. from "requesting and paying for continued information being extracted by torture of a living prisoner."

The argument was marked by unusual intervals of silence, when Ms. Harbury paused and the justices seemed reluctant to ask her more questions.

During her search for information, she staged several hunger strikes that drew attention to her husband's plight. She now works for a rural legal assistance program in Texas.

Copyright 2002 The New York Times Company

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