High court hears case accusing government of lying

Tuesday, March 19, 2002

WASHINGTON — Routine communication between government officials and the press and public would be chilled forever if those officials can be sued for lying, the Supreme Court was told yesterday.

Lawyers for government officials also pleaded with the court not to “constitutionalize” the Freedom of Information Act by turning access to truthful government information into a constitutional right.

“There are lots of different situations when the government has legitimate reasons to give out false information,” Solicitor General Theodore Olson told the court.

The comments came during oral arguments in an unusual case brought by Texas lawyer Jennifer Harbury as a way of holding U.S. officials responsible for the disappearance, torture and death of her husband in Guatemala 10 years ago.

“My day in court, when I could have saved my husband’s life, was extinguished,” Harbury told the justices. It is extremely rare for a party in a Supreme Court case to argue on her own behalf, but Harbury did so as the next step in a 10 year crusade on her husband’s behalf.

The case before the court is Christopher v. Harbury.

Harbury’s husband, Efrain Bamaca-Velasquez, a Guatemalan rebel leader, disappeared in 1992. Harbury says that when she asked for U.S. help, government officials deceived her by saying they would investigate‹when in fact they knew the Central Intelligence Agency was involved. Harbury says the government’s lies lulled her into inaction at a time when her husband was still alive and she could have prevented his death by going to court to stop the CIA. She later learned that he died in 1994 at the hands of a CIA “asset.”

The U.S. Court of Appeals for the D.C. Circuit agreed with Harbury last year that the government’s actions deprived her of her constitutional right of access to the courts.

The justices prize detached discussion of the issues over passion and self-interest, and for the most part Harbury struck the right balance between telling her personal story and illuminating the legal issues raised in the case.

Harbury began by acknowledging that the case involved a “narrow question of law” and displayed in-depth knowledge of issues ranging from the Federal Tort Claims Act to the tort of deceit.

But she also spoke forcefully of “the right to defend my family,” which she said had been abridged by the government’s actions. And she said poignantly that nothing now can “make good the lost day in court” that she said could have saved her husband’s life.

She denied she was arguing for a broad new constitutional right, but said government officials should be held liable if their actions keep someone from exercising the right to go to court.

But Justice Ruth Bader Ginsburg and others wondered aloud what action Harbury or the courts could have taken that would have saved her husband’s life. Harbury said one thing she could have done was to seek expedited processing for a FOIA request for information about her husband. Ginsburg doubted even that would have been in time to be helpful.

Justice Anthony Kennedy also echoed the concern of several justices when he suggested that “the government is going to be sued all the time” if access to government information is linked to a constitutional right of due process. Harbury asserted there would not be a “floodgate effect,” but the justices appeared unconvinced.

Justice Stephen Breyer raised another concern. He told her that “one is immediately sympathetic” with her “very sad” story. But he asked her what the implications for the conduct of foreign policy would be if she won. Instead of answering that “big picture” question, Harbury launched into an attack on CIA policy and the genocide of Mayans in Guatemala.

Justices seemed sympathetic toward the government officials, represented by Richard Cordray of Grove City, Ohio. Cordray questioned whether Harbury even had standing to bring the action and said it was “speculative” to suggest that U.S. courts could have compelled anyone to do anything that would have saved Harbury’s husband. He said a victory for Harbury would create an “extremely expansive right of access” to the courts.

Olson, also arguing on behalf of former Secretary of State Warren Christopher and other officials in the case, offered the warning about giving the FOIA constitutional dimensions. He also said that, far from opening up government, a victory for Harbury would reduce most government statements to a “no comment” that could not be challenged as untruthful.

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