High court to decide if government officials can be punished for lying to public

Monday, December 17, 2001

CIA intrigue, murder and cover-up are the main plot lines in the case of Warren Christopher v. Jennifer Harbury, granted review last week by the Supreme Court. But important subtexts are the First Amendment rights of government officials, and whether officials can be punished for misleading or lying to the public.

The case has its roots in the 1992 disappearance of Guatemalan guerilla leader Efrain Bamaca-Velasquez. His American wife, Jennifer Harbury, devoted her life to finding him. U.S. government officials repeatedly denied any knowledge of his whereabouts, even though some CIA officials and others were aware that he was being held in secret by the Guatemalan army. It was later revealed that after being questioned, Bamaca was killed in 1993 on the orders of a paid CIA asset.

In 1996, Harbury sued U.S. government officials including Secretary of State Warren Christopher, National Security Adviser Anthony Lake, and ambassador to Guatemala Marilyn McAfee. She claimed that the misleading information put out by these officials had the effect of depriving her of her right of access to the courts. If she had known earlier what the U.S. government knew, she says she could have filed a Freedom of Information Act request earlier, and might have been able to seek injunctive relief in court that could have saved her husband’s life.

A federal district court judge dismissed Harbury’s lawsuit, but the U.S. Court of Appeals for the D.C. Circuit revived it, in spite of the immunity that usually protects government officials from lawsuits. In an opinion written by Judge David Tatel, the court ruled that public officials may not mislead the American public to protect themselves from being sued.

Tatel noted that several other circuit courts have found that “government cover-ups can infringe the right of access to courts.” That right, Tatel said, includes not only the right to go to court, but to have the court’s review of a case be “effective and meaningful.” Because her husband was already dead and because of the government officials’ actions, the court ruled, Harbury’s access to the courts could not have been effective.

But in order for government officials to lose their immunity, the appeals court said that it must be clear to the officials that their actions were violating someone’s constitutional rights. “We think it should be obvious to public officials that they may not affirmatively mislead citizens for the purpose of protecting themselves from suit,” Tatel wrote. “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.”

In their challenge before the Supreme Court, Christopher and the other officials claim that the appeals court ruling “expands the constitutional right of access to the courts beyond all recognizable boundaries.” In a brief by their lawyer, Richard Cordray, they claim that if upheld, the appeals court ruling could mean that government officials violate the law whenever they conceal information, “since it can always be claimed later that their actions were intended to and did hinder the filing of some hypothetical lawsuit.”

Cordray continued, “This holding will chill the speech and the discretion of government officials.” He said it could seriously hinder the conduct of foreign policy.

In an interview, Cordray said the case also concerns government officials because it could expose them to suit for routine acts such as denying a request under the Freedom of Information Act. If such a denial could later be shown to have deprived the requester of a constitutional right, Cordray said, the officials could be sued.

The case will be argued before the Supreme Court in March or April, with a decision by the end of the term in June or July.

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