Activist Argues for Right to Sue Officials

Justices Remain Silent During Emotional Argument

Members of the Supreme Court listened politely but with seeming puzzlement today as lawyer-activist Jennifer K. Harbury argued for the right to sue former senior government officials over their alleged cover-up of the torture and death of her husband, a former commander of a Guatemalan guerrilla group.

Efrain Bamaca Velazquez disappeared on March 12, 1992, captured during a clash with Guatemalan government troops. After hearing reports in early 1993 that he was being held in a secret military prison and undergoing torture, Harbury began a highly-publicized campaign to win his release, including pleas for information from U.S. government officials.

Harbury says their noncommital replies were deliberate lies that made it impossible for her to seek immediate help from a U.S. judge, violating her constitutional right of access to the courts. She now seeks the right to sue the former officials for that alleged violation.

"It is exactly 10 years and six days too late," to save Bamaca now, she told the court, her voice rising. Her only means of accountability is a suit to recover damages from such luminaries of U.S. foreign policy as former secretary of state Warren Christopher and former national security adviser Anthony Lake, she says.

Representing the former officials, attorney Richard Cordray told the court that Harbury should not be allowed to press her lawsuit in the lower courts. "We are distant here from allegations of torture," he said. "The allegations are that our clients mishandled" their dealings with Harbury.

It is highly unusual for anyone to argue his or her own case before the court, and the justices seemed at times uncertain how to approach Harbury, who came before them not only as a litigator – and one clearly on top of the legal issues – but as an aggrieved and grieving widow.

For the most part, the justices seemed willing to let her speak uninterrupted during her allotted 30 minutes, even as she sometimes ranged into personal and emotional arguments that members of the court usually pounce on when delivered by attorneys in other cases.

Justice Antonin Scalia, usually the most aggressive questioner on the court, remained silent during most of Harbury's presentation. Justice Sandra Day O'Connor, often the first justice to ask a question, said nothing.

Harbury's argument was punctuated by several long and seemingly awkward pauses as she waited for queries that didn't come.

Some of the most probing questions for Harbury came from members of the court's liberal wing.

"Obviously reading your story one is immediately sympathetic," said Justice Stephen G. Breyer. "But a court might think there are lots of people in similar situations. . . . How is a court to distinguish it from a general case about foreign policy, which is something the courts don't like to get into?"

"In fact, our foreign policy objective was to promote human rights," Harbury replied.