233 F.3d 596 (D.C. Cir. 2000), 99-5307, Harbury v. Deutch

Docket Nº:99-5307
Citation:233 F.3d 596
Party Name:Jennifer K. Harbury, Appellant v. John M. Deutch, et al., Appellees
Case Date:December 12, 2000
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 596

233 F.3d 596 (D.C. Cir. 2000)

Jennifer K. Harbury, Appellant

v.

John M. Deutch, et al., Appellees

No. 99-5307

United States Court of Appeals, District of Columbia Circuit

December 12, 2000

Argued September 8, 2000

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Appeal from the United States District Court for the District of Columbia (No. 96cv00438)

Jodie L. Kelley argued the cause for appellant. With her on the briefs were Paul Hoffman, Beth Stephens and Jennifer M. Green. Maureen F. Del Duca entered an appearance.

R. Craig Lawrence, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief was Wilma A. Lewis, U.S. Attorney.

Before: Edwards, Chief Judge, Ginsburg and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

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Tatel, Circuit Judge:

Jennifer Harbury claims that for about one and a half years in the early 1990s, Central Intelligence Agency officials participated in the torture and murder of her husband, a Guatemalan citizen. She also claims that while he was being tortured and for more than a year and a half after his death, State Department and National Security Council officials systematically concealed information from her and misled her about her husband's fate. Seeking, among other things, damages under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), she filed suit in federal court, claiming deprivation of her husband's Fifth Amendment due process rights, violation of her right to familial association, and interference with her right of "access to courts." The district court dismissed these actions, finding that Harbury had failed to allege the deprivation of any actual constitutional rights, and that even if she had, defendants were entitled to qualified immunity. We agree with the district court as to Harbury's Fifth Amendment and familial association claims. But because we find that she has stated a valid claim for deprivation of her right of access to courts, and because the NSC and State Department officials are not entitled to qualified immunity on this claim, we reverse and remand for further proceedings.

I

Since this appeal comes here on a motion to dismiss, we accept the facts as alleged in the complaint. See Moore v. Valder, 65 F.3d 189, 192 (D.C. Cir. 1995). Emphasizing that defendants have not yet answered Harbury's charges and that her claims have been subject to neither discovery nor cross-examination, we set out the facts as she pleads them, borrowing liberally from her complaint.

In 1991, Harbury, an American citizen, married Efrain Bamaca-Velasquez, a Guatemalan citizen and high-ranking member of the Guatemalan National Revolutionary Union, a Guatemalan rebel organization. Several months after their Texas wedding, Bamaca returned to Guatemala where, on or around March 12, 1992, he disappeared. The Guatemalan army reported that during a skirmish with its troops, Bamaca committed suicide and was buried nearby. This was false. In fact, Bamaca had been captured and secretly detained by members of the Guatemalan military, including, Harbury alleges, CIA "assets"--members of Guatemalan Security Forces or Intelligence Services paid by the CIA to obtain information about the Guatemalan resistance.

According to the complaint, over the next twelve to eighteen months, Bamaca's captors psychologically abused and physically tortured him. They chained and bound him naked to a bed, beat and threatened him, and encased him in a full body cast to prevent escape. Eventually, probably some time around September of 1993, they executed him.

About a year after Bamaca disappeared, in early 1993, Harbury learned from a prisoner who had escaped from a Guatemalan interrogation camp that her husband was alive and being tortured. Harbury immediately contacted several State Department officials, reported what she had learned, and asked for information about her husband's status. Although officials to whom she spoke promised to look into the matter, they never provided her with any information.

In August 1993, Harbury obtained permission to open Bamaca's grave. Discovering that the body there was not his, she immediately informed Marilyn McAfee, the U.S. Ambassador to Guatemala. Although the Ambassador told Harbury that she would investigate the matter and report her findings, she too never provided Harbury with any information.

Over the next year, from October 1993 to October 1994, Harbury met repeatedly with State Department officials. Saying

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they were concerned about Bamaca's situation, these officials reassured her they were seriously looking into the matter and told her the Guatemalan Military had informed them that it did not have (and never had) custody of Bamaca.

In October of 1994, the CBS news program 60 Minutes reported that the U.S. Embassy in Guatemala had an intelligence report confirming that Bamaca had been captured alive. In response, the State Department publicly confirmed Bamaca's capture, stating that he had been lightly but not seriously wounded and held prisoner for some time. The State Department also reported that it had no information confirming that Bamaca was still alive.

In the wake of the 60 Minutes report and the State Department's public statements, Harbury met with National Security Advisor Anthony Lake who told her that the government had "scraped the bottom of the barrel" for information about her husband and that no further information existed. Complaint p 83. He promised that the government would not only continue searching for information, but also keep Harbury informed. Other State Department and NSC officials likewise told her that they had no concrete information about Bamaca's condition, but that they were continuing to assume that he was still alive. Suspecting that State and NSC officials were withholding information, Harbury filed a Freedom of Information Act request. Despite expedited processing, she received no documents in the following months.

Finally, because of the "failure of the [State Department and NSC] defendants to inform her of her husband's fate," Harbury announced that she would begin a hunger strike in front of the White House on March 12, 1995, the third anniversary of her husband's disappearance. Complaint p 87. State Department and NSC officials then met with her again, telling her this time that they believed Bamaca was dead because so many years had passed without evidence that he was alive. Unconvinced, Harbury began her hunger strike. Twelve days into the strike, Congressman Robert Torricelli announced publicly that years earlier, Bamaca had been killed at the order of a paid CIA asset.

On her own behalf and as administratrix of Bamaca's estate, Harbury brought suit in the U.S. District Court here against various named and unnamed officials of the CIA, the State Department, and the NSC. She based her claims on two broad factual allegations. First, she alleged that CIA officials at all levels "knowingly engaged in, directed, collaborated and conspired in, and otherwise contributed to [her husband's] secret imprisonment, torture and extrajudicial murder." Complaint p 49. Many of the Guatemalan military officers who tortured and killed Bamaca, she alleged, were paid CIA agents. Two had been trained in torture and interrogation techniques at the School of the Americas, a U.S. Army facility located in Georgia. According to Harbury, CIA officials who did not participate directly in Bamaca's torture not only paid Agency assets for information about Bamaca's rebel organization, knowing that the information had been extracted through torture, but also requested further intelligence, knowing it too would be obtained in the same manner. And as a general matter, Harbury alleged that CIA officials knew of other gross human rights violations in Guatemalan interrogation centers--including beatings with cement blocks, burials of prisoners alive, and electrical shocks to the testicles and legs--and that CIA officials up the chain of command, from the operations and intelligence divisions to the Director himself, expressly authorized their assets to use torture to obtain information from Guatemalan rebel leaders.

Second, Harbury alleged that while Bamaca was still alive, State Department and NSC officials, including Ambassador McAfee and NSA Lake, made "fraudulent statements and intentional omissions" that

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prevented her from "effectively seeking adequate legal redress, petitioning the appropriate government authorities, and seeking to publicize her husband's true plight." Complaint p 98. According to the complaint, when Harbury first contacted State Department officials to follow up on what she had learned from the escaped prisoner, they actually knew that her husband was alive and being tortured. They knew this, she alleged, because a week after Bamaca's capture, the CIA informed both State Department and White House officials that Guatemalan military forces would "probably fabricate his combat death in order to maximize their ability to extract information from [him]." Id. at pp 35, 56-57. Yet State Department officials, including Ambassador McAfee, revealed none of this information to Harbury. Instead, they repeatedly reassured her that although they were investigating Bamaca's fate, they had discovered nothing. According to Harbury, internal memoranda distributed and received by both State Department and NSC officials demonstrate their "intent to keep the involvement of the U.S. Government in the detention, torture, and execution of Mr. Bamaca out of the public eye." Id. at p 69. Those officials, she alleged, "intentionally misled [Harbury], through their deceptive statements and omissions, into believing that concrete information about her husband's fate...

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