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Forum: Hard cases and good law

The case of Jennifer Harbury is a good example of how public perceptions of high-profile cases ignore the legal issue

Sunday, June 16, 2002

By Harry Litman

I will now predict the future. In the next 10 days, the U.S. Supreme Court will throw out the case of a courageous widow who asserts that the United States government helped torture and kill her husband and then lied to her about it.

 
  Harry Litman is a former U.S. attorney for the Western District of Pennsylvania. He is of counsel at the law firm of Phillips & Cohen and Distinguished Visitor in Law and Public Affairs at Princeton University. 
 

Newspaper accounts of the case, which has already received extensive national media attention, will highlight the harshness of the decision and the court's apparent hardheartedness.

But the court will be right, and the result will have the support of justices across ideological boundaries. That is not because what happened to the husband isn't horrible, but rather because the actual appeal before the court is about a very different issue: whether the government denied his widow access to the courts.

The appeal in fact is a good illustration of how the case that a court decides may bear little resemblance to the case that captures public attention.

The case is Christopher vs. Harbury. Harbury is Jennifer Harbury, the widow of Efraim Bamaca-Velasquez, a Guatemalan rebel who was captured, probably tortured, and eventually killed by the Guatemalan military in the early 1990s in the course of that country's long civil war.

Christopher is Warren Christopher, the former U.S. secretary of state; he is one of six high-level former federal officials -- including Anthony Lake, the former head of the National Security Council, and Marilyn McAfee, the former ambassador to Guatemala -- whom Harbury is suing.

Let me disclose up front that I have an involvement in the case. I am co-counsel for Warren Christopher and the other former federal officials. Along with Richard Cordray, I have urged the Supreme Court to dismiss Harbury's case.

The court's decision will be among the flurry of important cases -- including cases on school vouchers, drug testing and the death penalty -- in these final two weeks of the court's annual term.

The Harbury case is unusually interesting on a number of grounds. For one, it is the first case in the Supreme Court with overtones of Sept. 11. Harbury has argued the government should be legally responsible for the acts of foreign nationals who provide intelligence to the CIA (and who she alleges carried out the torture of her husband). The court's decision may provide an early signal of how inclined, or disinclined, it will be to exercise oversight of intelligence operations in the war on terrorism.

At the center of the case is the compelling figure of Jennifer Harbury, a human rights lawyer who took the highly unusual step of arguing her own case before the Supreme Court. Harbury has waged a forceful campaign to publicize and redress what she sees as the U.S. government's complicity in her husband's death. More generally, she has been a vocal opponent of what she believes to be illegal and immoral American foreign policy in Guatemala and elsewhere.

Bamaca was captured in 1992 and initially reported dead. In the years following her husband's disappearance, Harbury repeatedly sought information about his circumstances. She spoke with various government officials, who told her they had no information on Bamaca but would look into the matter and keep her informed.

In 1995, Harbury undertook a well-publicized hunger strike (her third) outside the White House, and her story was showcased in a "60 Minutes" segment. In the wake of that broadcast, a U.S. senator announced publicly that Bamaca had been killed years before by a Guatemalan army officer who was also a paid informant of the CIA.

Not long thereafter, Harbury sued the State Department, the National Security Council, the CIA and numerous officials from those agencies (including the six officials who are our clients). Her case originally presented a large number of claims, centered around allegations that government officials knew about, abetted and covered up Bamaca's torture and killing.

All but one of these claims, however, were dismissed by the lower courts for various legal reasons that Harbury has not challenged. The case that has emerged at the Supreme Court thus has very little to do with the treatment of Bamaca, much less with the propriety of the United States' involvement in Guatemalan affairs. Harbury's surviving claim in the Supreme Court is rather that the government violated her constitutional right to access to the courts.

Harbury's argument is that when government officials told her they would look into the matter and get back to her, they were lying in order to prevent her from finding out the truth and bringing a lawsuit against the government.

What does this have to do with the right to access? Harbury argues that had she not been deceived in this way, she would have brought a lawsuit in time to save her husband's life, and now she has been denied that opportunity forever, so she has been "denied access" to the courts.

Of course, these allegations may be false -- indeed, we believe none of the federal officials deceived Harbury in any way -- but the court and lawyers must assume that they are true for purposes of this part of the case. Harbury's claim arises on what is known as a motion to dismiss, and the question before the court is not whether she should win but whether she should have a chance to develop evidence and possibly proceed to trial; for that reason, her allegations are provisionally assumed to be true. (That legal nuance also helps explain why newspaper accounts naturally tend to present her version of events as fact.)

Harbury's argument for expanding the right of access is ingenious, and it was accepted by a distinguished court of appeals, but to adopt it, the Supreme Court would have to bend existing constitutional law.

It is well-established that the government cannot physically or actually bar citizens from using the courts. But there is an obvious and large difference between barring a citizen from going to court and failing to provide (or even, as Harbury alleges, deceptively withholding) information that could help a citizen develop a lawsuit. And there are a number of other available legal and political remedies for government deception -- many of which Harbury is in fact pursuing.

In addition, she is hard-pressed to support her core claim that but for the alleged deception, she could have brought a suit in an American court that would somehow have prevented her husband's death at the hands of the Guatemalan military. At oral argument, the justices, though sympathetic to Harbury's plight, had noticeable difficulties accepting such a speculative claim.

The court at oral argument was also troubled by the potential consequences of a decision to expand the right of access to include Harbury's claim. Government officials tell citizens, "we'll look into it and get back to you" literally thousands of times a day. The implications would be vast if such a bland response could give rise to a constitutional violation and personal liability for denial of access to the courts.

Finally, government officials do sometimes withhold information or act deceptively for valid reasons, including safeguarding undercover investigations and protecting military or covert operations. Recognizing Harbury's claim would result in the great expense and inconvenience of litigation any time citizens asserted that government deception kept or delayed them from bringing a lawsuit. The upshot would be that many routine interactions between citizens and government officials would take place under the specter of potential litigation.

Look for the court to rely on many of these considerations in its forthcoming opinion, and cite them in explaining why legal principle requires denying a sympathetic plaintiff her day in court.

The adage goes, "hard cases make bad law." This means, among other things, that where the law may point towards a harsh or unsympathetic result, a court may be tempted to distort the law -- to permit a little fraying of the law's fabric -- to avoid the law's implications in the individual case.

But the justices are keenly aware that its decisions have consequences for our legal and political system that extend well beyond the parties in the case before them. The court's role is to announce and apply stable principles that will govern in all relevant cases; in other words, to perpetuate the rule of law. And that fosters a society in which people can rely with reasonable certainty on the law's reach and order their affairs accordingly. Which is what permits me, and other citizens and litigants, to predict the future. Or so I hope.

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