Supreme Court Watch: Jennifer Harbury
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MARGARET WARNER: The case before the court today has its roots in the Guatemalan civil war of the ’80s and early ’90s, and in the disappearance, ten years ago this month, of a rebel leader there.
Today his wife, American lawyer and human rights activist Jennifer Harbury, argued to the court that she should have the right to sue former senior Clinton administration officials, who didn’t level with her at the time about what they knew of her husband’s fate. We get more on today’s proceedings from Marcia Coyle, Washington bureau chief and Supreme Court reporter for the National Law Journal.
MARCIA COYLE: Thank you.
MARGARET WARNER: All right. Flesh out the facts of the case for us a little bit more.
MARCIA COYLE: Well, Jennifer Harbury married her husband, a rebel leader, in 1991 in Texas. And after the marriage, he returned to Guatemala to continue the battle with the Guatemalan military and the government there. In March of 1992, he disappeared. The Guatemalan military reported that he had committed suicide while engaged in a battle with their forces.
After that, she didn’t hear much until 1993 when a prisoner escaped from a Guatemalan military prison and said that her husband had actually been captured alive and was being tortured. At that point, Jennifer Harbury began a series of calls, visits to the State Department, national security officials, asking for information about what had happened to her husband. She was basically told, “We don’t know. We will look into it.”
No information was forth coming until 1994 when a CBS “60 Minutes” report said that the U.S. Embassy in Guatemala had received an intelligence report saying that he had been captured alive.
MARGARET WARNER: And on what basis is she trying to sue? What does she want out of a lawsuit? What damages is she saying she suffered?
MARCIA COYLE: Essentially she sued in 1996 on a whole variety of claims, but one claim that has survived and that is in the U.S. Supreme Court today is that government officials at the time engaged in a series of misrepresentations and omissions that in effect blocked her access to the federal courts where she could have sought an injunction against the CIA, which at the time was paying Guatemalan military officers to provide information. She felt if she did that, she would have been able at the time to get enough information perhaps to stop what ultimately happened, his execution.
MARGARET WARNER: Why is her right to sue a question? Not a right to win a suit but why is her right to sue a question?
MARCIA COYLE: Basically what she’s saying is her right to access to the courts was violated.
MARGARET WARNER: Is it a constitutional right?
MARCIA COYLE: It is a constitutional right but you won’t find it in the text of the Constitution. It’s something the Supreme Court has recognized over the years and has said is grounded in the First Amendment in a clause of the First Amendment that says citizens have a right to petition government for redress of grievances and also they found it grounded in the Fifth Amendment in the due process clause, which as you know is all about fairness. So she is not saying that she’s seeking relief for damages on some new fangled concept. It has been around for a while.
MARGARET WARNER: All right. So tell us about court today.
MARCIA COYLE: It was a very interesting day. This case is interesting on so many levels, not only because of the question about right of access to courts but she argued her own case.
MARGARET WARNER: That’s almost unheard of.
MARCIA COYLE: It’s very unusual. And when it is done, there usually isn’t sort of the underlying pathos and very emotional facts that Jennifer Harbury brought to the Supreme Court.
So the argument actually started though with the lawyers for former Secretary of State Warren Christopher, former National Security Advisor Anthony Lake, they are the ones that Harbury sued, and they lost in the court below so it’s their appeal in the Supreme Court.
Christopher’s lawyer, Richard Cordray, basically said this is not a right to access to the courts claim. When the court has applied the right to access the courts doctrine, it’s generally been when there’s an actual bar to you going into court. For example, the government sets high fees for getting a divorce, high enough that poor people can’t go to court to get a divorce.
He said this is not the case. There was no bar to her going into court. He also said that she really wasn’t going to get relief here. If she had gone to court, an injunction against the CIA, for example, was no guarantee that it would influence the Guatemalan military not to execute her husband.
MARGARET WARNER: Even though the colonel who allegedly did this was a CIA informant.
MARCIA COYLE: Exactly. Also the Solicitor General of the United States argued for the Bush Administration supporting Warren Christopher. And he brought up another argument. He said basically government officials deal with informal requests for information every day. And the most common response is “I’ll get back to you.” If Jennifer Harbury’s position prevails, he said that would open government officials to suits every time they don’t “get back to you.”
MARGARET WARNER: All right. Now, so tell us about when Ms. Harbury stood up and argued.
MARCIA COYLE: She told the Justices that she really had a very narrow claim here and that the government and Warren Christopher were overstating the floodgates argument. She said she is saying that there is an actual pattern of deliberate deceit by government officials that denied her access to the courts and harmed her.
That’s all she’s saying, and that the court should look at the claim that way. She also was very impassioned and righteous in her delivery of her argument, talking about her right to protect her family, and that was cut off because the government did not give her information she needed to go forward.
MARGARET WARNER: How did the Justices respond?
MARCIA COYLE: It was very interesting. She did very well on the law. She knows the law. She knew the precedents, but when she argued the more personal side of not being able to save her husband, there was silence on the bench. There weren’t as many questions going back and forth as we see. And some people may read that, well were the Justices put off by the emotion?
They’re so used to an arm’s length discussion of legal issues and facts, but I think there was really no way for them to respond because they have to appear neutral. They couldn’t lean over the bench and say, “You’re right. This was horrible” or “You’re out of your mind, you can’t be in court.”
MARGARET WARNER: Very briefly because we’re almost out of time. Did any of the justices’ questions suggest that the specter of the post 9/11 environment in which we’re returning sometimes covert operations in support of a war where the government is obviously keeping secrets, has that played into this case at all?
MARCIA COYLE: I wouldn’t say they specifically mentioned September 11, but I think it was very much on their mind. They asked about what effect on foreign policy this could have, and also where do you draw the line about what the government can disclose and can’t disclose? Is every refusal to disclose a violation of your right to access?
MARGARET WARNER: We’ll have to leave it there. Marcia, thank you so much.
MARCIA COYLE: Thank you.