Political question


District of Columbia Circuit dismisses common law claims by widow of Guatemalan rebel fighter who was allegedly killed with support of U.S. government officials because such matters involve Political Questions or fall within FTCA's "foreign country" exception to waiver of immunity.


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Jenny Harbury (Plaintiff ), a U.S. citizen, is the widow of the Guatemalan rebel fi ghter Efrain Bamaca-Velasquez, whom the Guatemalan army allegedly killed during that country's civil war. She sued numerous U.S. government officials, including CIA Directors and a Secretary of State, who were allegedly involved in the mistreatment and death of her husband.

Accordingly to the complaint, during the 1990s, the CIA hired and trained Guatemalan army officers as informants to gather information about the rebel forces. The CIA allegedly knew that the informants would use torture to extract such information. Guatemalan forces captured Plaintiff 's husband in March 1992, and he allegedly committed suicide. Plaintiff maintains, however, that the Guatemalan military forces tortured and killed him.

The District Court dismissed most of her claims early on. Only Plaintiff's common law claims against individual CIA defendants remained. These alleged that the CIA employees conspired to cause the imprisonment, torture and death of Plaintiff 's husband. In March 2000, Attorney General Janet Reno certifi ed that the individual CIA defendants had acted within the scope of their employment; this removed those defendants from the tort action and substituted the U.S. as the sole defendant.

The District Court then dismissed the remaining common law tort claims because the Federal Tort Claims Act (FTCA) does not extend the U.S.'s waiver of sovereign immunity to acts that took place in a foreign country. Plaintiff appealed, arguing inter alia that the CIA defendants did not act within the scope of their employment under District of Columbia law because "torture can never fall within the scope of employment." Plaintiff also claims that some of the injuries, such as her emotional distress, occurred in the U.S. and are thus not barred by the FTCA's foreign country exception. Plaintiff appealed.

The U.S. Court of Appeals for the District of Columbia Circuit, however, affirms on two bases. First, the case presents a non-justiciable Political Question, and second, the FTCA governs Plaintiff 's claims so that sovereign immunity does apply since the complained of activities took place in a foreign country.

The Court fi rst turns to the FTCA. The FTCA is a limited waiver of the government's sovereign immunity; it allows injured plaintiff s to sue the U.S. in federal court for tortious acts committed by government employees within the scope of their employment. 28...

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