WASHINGTON, March 18 (UPI) -- Jennifer Harbury, American widow of a Guatemalan rebel leader, told the Supreme Court Monday that Clinton administration officials lied to her and kept her from going to a U.S. court to save her husband's life.
Harbury's husband, Guatemalan rebel commander Efrain Bamaca-Velasquez, allegedly was tortured and eventually killed by a Guatemalan official on the CIA payroll in 1993.
Before he was killed, Harbury said, U.S. officials lied to her, saying either than Bamaca was dead or that they did not know anything about him.
"When I was speaking with them, he was still alive, and could have been saved," she told the justices.
She contends that if the officials had told the truth, or even gave her no comment, she could have gone to a U.S. court for an injunction against the CIA, forcing the agency to help her husband.
"My day in court, when I could have saved my husband's life, was extinguished," she argued.
At issue in the case before the justices is whether the former and current officials targeted by Harbury's suit, including former Secretary of State Warren Christopher, violated Harbury's constitutional right to go to federal court by not telling her the truth.
The case also has profound implications for the CIA and the U.S. foreign policy establishment. When is it permissible for the government to lie, and when must government officials tell the truth, even when they think it will harm national security interests?
Harbury, a U.S. citizen and attorney, married Bamaca in Texas in 1991. Several months later, Bamaca returned to Guatemala.
He disappeared around March 12, 1992.
The Guatemalan army declared that Bamaca had committed suicide during an armed skirmish, and soldiers had buried his body.
However, Harbury later learned that her husband had been captured by the army, "among whom were paid CIA informants."
According to court papers filed by Harbury, "over the next 12 to 18 months, Bamaca's captors psychologically abused and physically tortured him. They chained and bound him naked to a bed, beat and threatened him, and encased him in a full-body cast to prevent escape. Eventually, probably sometime around September of 1993, they executed him."
As soon as she knew he had been captured, Harbury contacted several State Department officials, asking for information about her husband's status.
But repeated attempts to gain information were stymied, until CBS's "60 Minutes" did a story about Bamaca's plight.
The State Department then conceded Bamaca had been captured, not killed, but said it had no further information and could not say whether he was still alive.
Then-national security adviser Anthony Lake told her the United States had "scraped the bottom of the barrel" but had no more information, according to a federal appeals court.
Harbury began a hunger strike in front of the White House on March 12, 1995, the third anniversary of her husband's disappearance.
Twelve days into her strike, Sen. Robert Torricelli, D-N.J., announced publicly that he had learned Bamaca was killed years earlier on the order of Guatemalan official on the CIA payroll.
Harbury then filed suit against a number of officials, including Christopher and Lake.
A federal judge in Washington ruled for the officials, but a federal appeals court reinstated the case.
The appeals court said Harbury "has stated a valid claim for deprivation of her right of access to courts, and because the (National Security Council) and State Department officials are not entitled to qualified immunity on this claim," the case was sent back down for more hearings.
The officials then asked the Supreme Court to intervene before the case went back to the trial court.
The officials asked the justices to decide whether allegations that officials "withheld information and intentionally misled a private citizen about a foreign rebel leader" constitute 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 (Harbury) ever tried to file a lawsuit and was actually hindered in that effort."
The case is highly unusual in a number of respects.
Parties to a dispute -- in this case, Harbury -- rarely argue their own cases before the Supreme Court.
The courts are allowing the current and former officials to be sued in their private capacities, not as U.S. officials. If Harbury prevails in her ongoing suit, regardless of whether the Supreme Court rules her constitutional rights were violated, she could win money damages.
And when the case was argued Monday the justices were unusually deferential to Harbury, taking pains not to interrupt her or grill her as they would an ordinary attorney with no emotional stake in the case.
Speaking for Christopher and the other defendants, Grove City, Ohio, attorney Richard Cordray told the justices, "The right of access is not violated unless an individual is in fact barred from filing in the courts."
If Harbury wins her case, Cordray said, it "would constitutionalize the channels of communication between government and private citizens," opening up a whole new area for constitutional lawsuits.
"It remained open to her to file a (Freedom of Information Act) claim" in spite of the government denials, Cordray said. "It remained open to her to file in the courts."
The Bush administration supported the current and former officials during argument. U.S. Solicitor General Theodore Olson told the justices that their own precedent is strongly against "creating new (constitutional) rights."
At one point, Harbury was told, "We can't get back to you," Olson said. He added, "That could be a lie as well" that would make officials liable in a lawsuit. "It demonstrates the slipperiness of the slope."
The Supreme Court should rule in the case within the next several months.
(No. 01-394, Christopher et al vs. Harbury)
