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Pursuing Justice

The CIA-Harbury Torture Case
Heads to the Supreme Court

by Peter A. Schey

In 1992, the Guatemalan military announced that Efrain Bamaca Velásquez, a Mayan resistance leader, had died in an armed confrontation with government security forces. The Guatemalan army reported that during a skirmish with its troops, Bamaca committed suicide. However, in early 1993, Jennifer Harbury, Bamaca's U.S. citizen wife, obtained information that Bamaca was captured alive, transported to a Guatemalan army base, and then severely tortured and executed.

Harbury set about to learn everything she could about her husband's fate, and bring those responsible for his torture and death to justice. She also sought to learn what the U.S. Government knew about her husband's death. In the summer of 1993 she visited Guatemala and opened the grave where her husband was reportedly buried. The body was not her husband. The State Department repeatedly claimed that the U.S. Government knew nothing about Bamaca's death.

In 1995 U.S. Representative Robert Torricelli disclosed information that following his capture Bamaca was extrajudicially executed by a former paid CIA informant. According to this information, the CIA knew of Bamaca's fate but failed to inform the Department of State.

In January 1995, Harbury sought access to all State Department documents on her husband's death under the Freedom of Information Act. No documents were released. In March 1995, Rep. Torricelli disclosed that Bamaca had been extrajudicially executed in 1992 upon orders of Col. Julio Roberto Alpirez, a graduate of the U.S.-operated military School of the Americas and a paid CIA informant.

Harbury brought suit in the U.S. District Court for the District of Columbia on her own behalf and as administratrix of Bamaca's estate against various officials of the CIA, the State Department, and the National Security Council (NSC). Harbury v. Deutch, No. 96cv00438. She alleged that CIA officials "knowingly engaged in, directed, collaborated and conspired in, and otherwise contributed to [her husband's] secret imprisonment, torture and extrajudicial murder." Complaint ¶ 49. She claimed that several of the Guatemalan military officers who tortured and killed her husband were paid CIA agents. The complaint alleged that the CIA paid its "assets" in the Guatamalan military for information on rebel groups knowing that such information was obtained by torture.

Harbury also alleged that following his capture and while Bamaca was still alive, officials of the State Department and NSC knew that her husband was alive and being tortured but falsely claimed they possessed no information about his fate, preventing her from "effectively seeking adequate legal redress, petitioning the appropriate government authorities, and seeking to publicize her husband's true plight." Complaint ¶ 98.

Harbury pleaded 28 causes of action, including Bivens actions against defendants seeking damages for their alleged constitutional violations. The Bivens claims rest on three alleged constitutional violations: (1) by contributing to Bamaca's torture, CIA defendants violated his Fifth Amendment substantive due process rights; (2) by participating in and concealing information about Bamaca's torture and murder, defendants violated Harbury's constitutional right to familial association; and (3) by concealing information and misleading her about her husband's fate, NSC and State Department defendants violated her right of access to courts.

The district court dismissed Harbury's Bivens claims, concluding (1) she failed to allege a deprivation of an actual constitutional right, and (2) even if she had, defendants possessed a qualified immunity because the alleged constitutional rights asserted were not clearly established. Under Federal Rule of Civil Procedure 54(b), the court certified its dismissal of the Bivens claims as final, and Harbury appealed.

On December 12, 2000, the U.S. DC Circuit Court of Appeals reversed the district court's dismissal of Harbury's Bivens claims. Harbury v. Deutch, No. 99-5307.

In Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the Supreme Court held that government officials performing discretionary functions are shielded from liability for damages if their conduct did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Subsequently, in Wilson v. Layne, 526 U.S. 603, 609 (1999), the Court clarified that when evaluating a claim of qualified immunity, the courts must first determine whether the deprivation of an actual constitutional right has been alleged, and if so, whether that right was clearly established at the time of the alleged violation.

The Court of Appeals thus first turned its attention to the question whether the complaint alleged a constitutional violation. It noted that Government conduct that "shocks the conscience" violates the Fifth Amendment guarantee against deprivation of "life, liberty, or property, without due process of law." And that interrogation by torture clearly shocks the conscience. See, e.g., Benton v. Maryland, 395 U.S. 784 (1969) (the Due Process Clause must at least "give protection against torture, physical or mental").

However, the Court of Appeals concluded that under United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (warrantless search and seizure of an alien's property in Mexico did not violate the Fourth Amendment), it had to determine whether Bamaca was entitled to Fifth Amendment protection given that the torture occurred in Guatamala. Relying on several federal appellate decisions rejecting claims that aliens are entitled to Fifth Amendment rights outside the United States, the Court of Appeals agreed with the district court that Harbury failed to allege a valid claim for deprivation of her husband's Fifth Amendment due process rights.

Turning next to Harbury's claim that by murdering Bamaca, the CIA defendants unconstitutionally violated her right to continuing association with her husband. The Constitution protects familial relationships from unwarranted government interference in at least two circumstances. First, parents have a right to maintain their relationship with their children. Santosky v. Kramer, 455 U.S. 745 (1982) (state must support allegations of parental neglect with clear evidence before terminating the rights of parents in their natural child). Second, family members have a constitutional right to make certain private decisions regarding family affairs. See. e.g., Roe v. Wade, 410 U.S. 113 (1972) (abortion).

The Court rejected Harbury's constitutional familial relationship claim. First, the Supreme Court has only found a constitutional right to continuing association with family members in cases involving direct, purposeful interference with the familial relationships. Second, the Court has recognized a right to continuing familial association only in cases involving parent-child relationships. The Circuit Court refused to extend a constitutional right to familial association to cases where the government has indirectly interfered with a spousal relationship.

Finally, the Court of Appeals turned to Harbury's access to courts claim. "[T]he right to sue and defend in the courts," the Supreme Court long ago said, "is the alternative of force. In an organized society it ... lies at the foundation of orderly government." Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907). Such access must be "adequate, effective, and meaningful." Bounds v. Smith, 430 U.S. 817, 822 (1977).

Harbury argued that by giving her "false ... information related to her husband and ... concealing whether he was alive, ... [defendants] deprived ... her right ... to adequate, effective, and meaningful access to the courts." Complaint ¶ 174. The defendants argued that Harbury "failed to identify a ... constitutional right to have federal officials report on what they knew about a foreign revolutionary leader captured by a foreign government on the field of battle." See Appellee's Br. at 14. However, Harbury alleged that defendants affirmatively deceived her about the fate of her husband, and thus prevented her from suing them. Viewed this way, the Court of Appeals concluded Harbury stated a clear case of denial of access to courts.

Harbury's complaint alleged that but for the cover-up, she might have been able to save her husband's life. Complaint ¶ 98. If defendants had disclosed the information they possessed, Harbury could have sought an emergency injunction based on an underlying tort claim for intentional infliction of emotional distress. Defendants' false statements effectively prevented her from seeking emergency injunctive relief in time to save her husband's life.
However, the question remained whether defendants would be entitled to qualified immunity because the constitutional right was not well-established. The Court of Appeals asked: "[W]ould an objectively reasonable official have thought it clearly unconstitutional to affirmatively mislead Harbury for the express purpose of preventing her from filing a lawsuit?" And answered: "[W]e think the answer is plainly yes." The Court of Appeals concluded "it should be obvious to public officials that they may not affirmatively mislead citizens for the purpose of protecting themselves from suit." Qualified immunity was never intended to protect public officials who affirmatively mislead citizens for the purpose of protecting themselves from being held accountable in a court of law.

The Court of Appeals reversed the dismissal of Harbury's access to courts claim and remanded for further proceedings. In all other respects it affirmed. On Dec. 10, 2001, the U.S. Supreme Court granted certiorari. Christopher v. Harbury, 01-0394.

The questions the Supreme Court accepted for review are: (1) Do allegations that senior Government officials intentionally misled a 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?" and (2) if a constitutional violation is properly alleged, do government officials violate "clearly established law whenever they allegedly mislead a private citizen or conceal information" and it is "later claimed" that they hindered "the filing of a hypothetical lawsuit?"

Given how the Supreme Court defined these questions, it would not be surprising if it sides with U.S. Government officials who lie about their knowledge of or involvement with those who torture and extrajudicially execute people, as long as the victims are "foreign[ers]," and the torturers work primarily for "a foreign government," even if they are coincidentally CIA "assets," and timely and truthful disclosure of known facts may have saved the victim's life.


Peter Schey is a human rights lawyer and President of the Los Angeles-based Center for Human Rights and Constitutional Law.

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