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U.S. Deceit at Issue Before Supreme Court

TIMES STAFF WRITER

A lawyer for President Bush on Monday defended alleged lying by the Clinton administration in a Supreme Court case that centers on whether government officials can be sued if they lie to cover up crucial facts.

The case has nothing to do with Paula Corbin Jones or Monica S. Lewinsky but instead concerns the Clinton administration’s support for the Guatemalan military. It also marked one of the rare instances in which the victim of alleged government wrongdoing argued her own case in the high court.

“The government cannot engage in intentional deceit in order to prevent [you] from going to a court of law,” Jennifer Harbury, a lawyer and widow of a Guatemalan guerrilla fighter, told the justices.

For more than a decade, Harbury has carried on a one-woman crusade against U.S. policy in Central America. In 1991, she met and married Guatemalan rebel Efrain Bamaca Velasquez.

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A year later, he was captured by the Guatemalan army, whose commanders reported that he had died. In fact, he was reportedly the prisoner of a Guatemalan officer who was on the CIA’s payroll.

Harbury says she was deceived by Clinton administration officials in 1993 who said they did not know her husband’s whereabouts. She later learned Bamaca was killed in the fall of 1993.

Since then, Harbury has been seeking to hold key officials liable for lying, including former Secretary of State Warren G. Christopher and National Security Advisor Anthony Lake.

“I was told there was nothing in the files,” Harbury said, though her husband “was alive and undergoing torture. He could have been saved,” she said, had officials told her the truth about his plight.

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Responding to her suit, Christopher and other officials said Harbury’s allegations are false. They said they did not know of Bamaca’s situation in early 1993 when he was a captive.

Beyond that, however, they argue that her lawsuit should be thrown out because citizens do not have a “right of access to government information,” as they put it in their legal brief.

Harbury won an important victory in the U.S. Court of Appeals in Washington two years ago. Assuming that the facts of her complaint are true, the court ruled, she can hold the officials liable for their actions.

“We think it should be obvious to public officials that they may not affirmatively mislead citizens for the purpose of protecting themselves from suit,” wrote Judge David Tatel for the appeals court.

But the Supreme Court agreed to review the matter.

The case of Christopher vs. Harbury, 01-394, raises the question of whether the Constitution gives citizens a right to truthful answers from government officials, particularly when they need the information for a lawsuit.

U.S. Solicitor Gen. Theodore B. Olson, representing the Bush administration, joined Christopher’s lawyers in arguing that the answer is no.

The Constitution does not “impose any affirmative duty of candor on the government,” Olson said in his brief.

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Thousands of times daily, citizens ask for information from officials. Sometimes, they are not provided complete answers, he said. “On occasions, there are polite evasions. Or an equivocal, ‘I will get back to you,’ ” Olson said.

If citizens can haul officials into court by claiming they were deceived, it would a put a costly personal burden on officials, he said. Moreover, such a rule might lead to the “drying up of information” because officials would routinely say “No comment” to protect themselves, Olson argued.

“There are other ways to deal with this” than creating a constitutional right to honest answers from the government, Olson said. For example, citizens can seek details under the Freedom of Information Act.

For their part, the justices appeared to agree.

“It seems to me you are trying to make up a constitutional right of access to information,” Justice Anthony M. Kennedy told Harbury. He said he was leery of opening the door to lawsuits against officials for providing, or not providing, information.

Justice Stephen G. Breyer said the court was reluctant to meddle in foreign affairs. U.S. officials did not kill Harbury’s husband, and Breyer questioned whether judges should allow suits against officials over actions that took place in other countries.

“Obviously yours is a sad, difficult case. One is immediately sympathetic,” Breyer commented. “But the problems of conducting foreign affairs usually requires the courts to stay out.”


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