Constitutional Law

• Author: International Law Group

Jennifer K. Harbury sued various federal government agencies and officials as defendants in the District of Columbia federal court.

Assuming the truth of her allegations, certain government officials had intentionally deceived her by hiding information that the Guatemalan government had detained her husband, Efrain Bamaca-Velasquez, a Guatemalan rebel leader who disappeared in his own country in March 1992. After torturing him for more than a year to obtain information of interest to the Central Intelligence Agency (CIA), for which it paid, Guatemalan officials killed him.

Those who took part included officers trained in the United States, who were paid and used as informants by the CIA. According to her complaint, governmental lying about these events denied her access to the courts (ATC) by leaving her without key information, or awareness that she ought to seek certain information. The result was that U.S. officials prevented her from developing a basis for a lawsuit that might have saved her husband's life.

Plaintiff joined as defendants the CIA, the State Department, the National Security Council (NSC) and various officials of each of these agencies. Her legal theories involved common law and international law tort claims as well as constitutional claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). She sued on behalf of her husband's estate and on her own behalf for breach of, among other things, her ATC rights under the constitution.

The Court summarizes her factual contentions as follows. "Harbury makes three specific allegations of such Government deception, all involving State Department officials, while Bamaca was still alive.

First, she says she contacted several unnamed State Department officials in March 1993 to express concerns about her husband, who, according to an eyewitness, was still alive. They 'promised to look into the matter and to assist her,' but they neither gave her nor made public any information about Bamaca, though CIA reports from as early as May 1993 confirmed he was still alive."

"Second, in August 1993, Marilyn McAfee, then Ambassador to Guatemala, advised Harbury to submit a written report to the effect that remains found in a grave purported to be her husband's were not in fact his, as Harbury promptly did. Although McAfee promised that she would 'investigate the matter immediately[,] report her findings,' and keep Harbury 'properly informed regarding her husband's...