A few weeks ago, in a story all but ignored by the mainstream press, Jennifer Harbury, an American lawyer and human- rights activist, argued her own case before the highest court in the land. Harbury petitioned the Supreme Court to allow her to sue several members of the Clinton administration who, she alleges, hid what they knew about the capture, torture and death of her husband, Guatemalan rebel leader Efrain Bamaca-Velasquez, at the hands of the Guatemalan military in the early 1990s.
During the time when the U.S. was surreptitiously supporting one side in that country's brutal civil war, Harbury's husband was reported to have disappeared after a clash with Guatemalan government troops. At first, the Guatemalan army claimed that he had committed suicide, but the grave that Ms. Harbury received permission to open did not contain his body. Then, having heard reports in 1993 that he was in a secret military prison undergoing torture, Harbury began a highly publicized campaign to win his release.
But officials at the State Department, the National Security Council and the CIA all told Harbury that they had no information concerning her husband's situation or condition. It took three years and the intervention of Sen. Robert G. Torricelli, Democrat of New Jersey, then a member of the House of Representatives, to learn the truth -- that a Guatemalan colonel on the American payroll had ordered his killing, and that the government had known about it all the time.
Harbury insists that had the Clinton administration officials not misled her, she would have immediately gone to court in time to intervene and perhaps save his life. Now, 10 years later, she is asking for the right to sue the government for making it impossible for her to seek help from a U.S. judge, thereby violating her constitutional right of access to the courts. The case is significant in that it presages just how far our government -- in pursuit of a political agenda -- is willing to go to protect its ability to lie, obfuscate or deny knowledge to one of its own citizens. Depending upon its outcome, the suit may further restrict any citizen's right to sue for a redress of grievances perpetrated by a U.S. agency.
Even at a time when this country is engaged in a campaign against global terrorism and may have legitimate reasons to withhold some vital information, the argument that the government has carte blanche to dissemble for any reason it deems necessary (as stated by the defendants' lawyer, Richard A. Cordray, as well as the Bush administration's solicitor general, Theodore B. Olson) is chilling and difficult to accept.
Here is some of the dialogue from Harbury's day in court, as reported by Nina Totenberg on National Public Radio's "All Things Considered":
Justice Kennedy: (to Cordray) "So your position is, that if there's a police cover-up, the victim of the cover-up has no right of access to the courts?" Answer: "Yes."
Justice O'Connor: "Even if one of the purposes of the cover-up is to prevent individuals from learning information that would provide the basis for a lawsuit?" Answer: "Yes. After all, this could apply to a sting operation."
Justice Ginsburg: "But a sting operation is to uncover a crime. Here's an American citizen trying to get information for a perfectly legitimate reason."
Justice Breyer: "Suppose a bunch of rogue policemen are holding someone in jail and his wife comes in asking if they've got him, and they lie to her, would she have a suit?" Answer: "No."
Olson then added: "If Harbury were to prevail in this case ... then virtually all communication between government officials and citizens, including the press, would dry up. ... There are lots of different situations when the government has legitimate reasons to give out false information."
To hear Olson put it, if the government doesn't have the ability to lie to its people, there can be no truthful dialogue -- indeed, no dialogue of any kind -- between Washington and the citizens to whom the government is ostensibly responsible. Of course, there is another name for this kind of polity -- it's called Fascism. There was no overriding national emergency concerning the war in Guatemala in the 1990s and no reason for the government to lie to Jennifer Harbury except to hide its own crimes and unsavory practices.
If the Supreme Court, whose decision is expected this summer, does not find cause in Harbury's suit, it will be giving the government the power to shield itself from the scrutiny of its own people. And that portends a future too scary to ignore.