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Government deception no basis for widow's lawsuit

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  1. Freedom of Information

    NMU         U.S. SUPREME COURT         Freedom of Information         Jun 25, 2002    

Government deception no basis for widow’s lawsuit

  • The U.S. Supreme Court held that the government’s deception of Jennifer Harbury when she sought information about her husband, who ultimately died in a secret military prison in Guatemala, did not cause her to forego any rights.

A widow cannot sue government officials because they withheld information and were deceptive regarding the capture of her husband, a Guatemalan guerilla fighter, after the U.S. Supreme Court ruled unanimously on June 20 to reversed a decision of the U.S. Court of Appeals in Washington, D.C. Efrain Bamaca-Velasquez ultimately died while his wife, Jennifer Harbury, sought unsuccessfully to get information about him.

Writing for the court, Justice David Souter focused mainly on whether the government’s actions had denied Harbury access to the court and whether the claims in her complaint constituted a valid cause of action.

Arguing for herself before the Supreme Court, Harbury brought suit against the government in 1995 on several counts, including that when the government officials withheld information regarding the whereabouts of her husband, Bamaca-Velasquez, they deliberately misled her and so prevented her from seeking court action that might have saved her husband’s life or that would have given her other rights in court.

Classifying Harbury’s allegations as a backward-looking access suit, Souter wrote that “while the court could not read the complaint without appreciating Harbury’s anguish,” the complaint failed to identify any underlying cause of action resulting from the deception that could to lead to judicial relief.

In a concurring opinion, Justice Clarence Thomas wrote that he found “no basis in the Constitution for a ‘right of access to courts’ that effectively imposes an affirmative duty on Government officials either to disclose matters concerning national security or to provide information in response to informational requests.”

Bamaca-Velasquez disappeared in March 1992 after he clashed with Guatemalan government troops. In1993 Harbury petitioned the U.S. government for help finding him after hearing reports he was detained and tortured in a secret military prison.

Government officials misled Harbury, promising her they would investigate the situation, while the CIA knew as early as 1992 that the Guatemalan army had captured Bamaca-Velasquez. Harbury did not learn of her husband’s death until March 1995 when then-Rep. Robert Torricelli (D-N.J.) announced that he had been killed by order of a Guatemalan army colonel who was also a paid agent of the CIA. In making the disclosure, Torricelli was accused of releasing national security information.

Harbury told the court that had she known the truth earlier on, she could have found some way to get an American court to intervene.

The court did not address any implications the case might have for freedom of information cases or requirements that the government disclose truthful information.

Richard Cordray, attorney for the former U.S. officials who were sued, had argued that if the court were to permit Harbury’s suit government officials would be reluctant to provide information informally, for fear of a potential lawsuit for anything they said that could be characterized as a deception or lie. He also said that if Harbury prevailed it would constitutionalize the Freedom of Information Act by making access to government information a constitutional right.

The Supreme Court did not address whether it is permissible for government officials to withhold information or to deceive the public.

(Christopher v. Harbury) JLW

© 2002 The Reporters Committee for Freedom of the Press

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