Court Will Review Right to Secret Data
Decision Could Affect Anti-Terror Operations
By Charles Lane
Washington Post Staff Writer
Stepping into a long struggle over U.S. policy in Latin America that
could have implications for the current war on terrorism, the Supreme Court
that it would consider whether an American woman has the right to sue former high-ranking U.S. officials for allegedly covering up the torture and murder of her
husband, who was a commander of the now-defunct Marxist guerrillas in Guatemala.
The case pits Jennifer K. Harbury, an American activist who supported
the guerrillas during their war against the Guatemalan army, against such
administration figures as former secretary of state Warren Christopher and former national security adviser Anthony Lake. The question at the heart of the case is
what U.S. citizens are entitled to know from government officials entrusted with foreign policy secrets.
Harbury began what was to become a headline-making campaign to find
her husband, a Guatemalan citizen named Efrain Bamaca, in 1993. She contends
despite her hunger strikes and other protests, officials repeatedly lied and refused to tell her everything the U.S. government knew about Bamaca's case, effectively
denying her information she could have used to pursue his freedom through litigation. This, she argues, violated her "right to access" to the courts.
In 1995, it was revealed that a Guatemalan colonel who was a paid asset
of the CIA was involved in the interrogation of Bamaca. The presidentially
Intelligence Oversight Board said the following year that the CIA did not keep the State Department or Congress adequately informed of its activities in Guatemala.
But the board said there was no evidence of a coverup by CIA officials.
That same year, Harbury sued in the U.S. District Court for the District
of Columbia. On March 22, 1999, Judge Colleen Kollar-Kotelly dismissed
Harbury appealed, and on Dec. 12, 2000, the U.S. Court of Appeals for the District of Columbia Circuit partially reinstated the case, holding, in an opinion by Judge
David Tatel, that a reasonable government official should have known that misleading Harbury would deny her constitutional rights. Christopher, Lake and five other
defendants named in Harbury's suit petitioned for Supreme Court review.
In the current war on terrorism, the CIA, military special forces and
other U.S. government agencies are waging a largely covert campaign against
worldwide. At least one American citizen, John Philip Walker Lindh, has already been captured by the United States and its allies in Afghanistan.
"The issues in this case are made more acute by the events following
9-11," said Richard A. Cordray, a lawyer for the former officials. "What
is at issue here is
whether government officials can be held liable for constitutional violations when they are alleged to have concealed information. What's at stake here is covert
operations, and that has direct ramifications for Afghanistan."
The court needs to preserve "some latitude" for officials even to deliberately
mislead people if they deem it absolutely necessary to protect a sensitive
Jodie L. Kelley, a lawyer who represents Harbury, said the entire case
could have been avoided if officials had simply responded "no comment"
to Harbury, rather
than falsely assuring her that they had checked and found no government information regarding Bamaca.
Kelley said that the possibility of a similar case arising out of the war on terrorism only makes it more important to recognize legal claims such as Harbury's.
"We don't want what happened in the wake of 9-11 to obscure the point that the right here is an important one. It's the right to go to court," she said.
The case is Christopher v. Harbury, No. 01-394.