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
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
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
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
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
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
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.