Transcript

IN THE SUPREME COURT OF THE UNITED STATES

WARREN CHRISTOPHER, FORMER SECRETARY OF STATE, ET AL., Petitioners v. JENNIFER K. HARBURY.

No. 01-394

March 18, 2002

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 11:00 a.m.

APPEARANCES: RICHARD A. CORDRAY, ESQ., Grove City, Ohio; on behalf of the Petitioners.

THEODORE B. OLSON, ESQ., Solicitor General, Department of Justice, Washington, D.C.; for the United States, as amicus curiae, supporting the Petitioners.

JENNIFER K. HARBURY, ESQ., Weslaco, Texas; on behalf of the Respondent.

PROCEEDINGS

(11:00 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument next in No. 01-394, Warren Christopher v. Jennifer K. Harbury.

Mr. Cordray.

ORAL ARGUMENT OF RICHARD A. CORDRAY

ON BEHALF OF THE PETITIONERS

MR. CORDRAY: Thank you, Mr. Chief Justice. May it please the Court:

I represent current and former Government officials who have been sued in their individual capacity based on a claim for denial of access to the courts and the further claim that they violated clearly established law as of 1993, thus negating their defense of qualified immunity.

The substantive due process right of access claim urged here is extremely expansive and unsupported by the Court's precedents. Our position boils down to this. The right of access is not violated unless an individual is, in fact, barred from filing claims in the courts. In limited circumstances, far different from those at issue here, the Court has recognized that an actual bar to access in the courts implicates the Due Process Clause. Here there is no denial of access to the courts under this Court's precedents.

The claim asserted here, moreover, would constitutionalize the handling of informal channels of communication between Government officials and private citizens. It's entirely foreseeable that recognizing this claim would cause the flow of information to the public to be reduced to stultifying forms of pretrial discovery. We know no holding of this Court that would lead to such a result.

QUESTION: To begin with right of access, the Bell case, Bell v. Milwaukee, is discussed in -- in the briefs. That's 1983. This is Bivens. I recognize the distinction. That's, of course, a circuit court case. It's not -- but suppose that case were here. Suppose we had the Bell case. Would you say the Bell case is correct?

MR. CORDRAY: Your Honor, we feel that the conduct at issue in the Bell case, very serious misconduct -- there were actual criminal violations. The perpetrators were prosecuted. There would be many ways to address the misconduct at issue in that case. We do not believe that it would state a claim for denial of access to the courts.

We also believe -- and in fact, it's -- the district court held here the facts of that case are quite distant from this case where here we're in the sensitive context of foreign policy and the oversight of covert operations in a foreign country, and that would result --

QUESTION: But your basic position is -- is that there's a police coverup and the police destroy the evidence and they lie, et cetera, no -- no cause of action for denial of access to courts.

MR. CORDRAY: That's correct. There would be many remedies that could and should be imposed in such a case.

QUESTION: Even where the purpose of the action of the official is to conceal facts that would have provided the basis for a legal recovery in court.

MR. CORDRAY: We believe so, Your Honor, and for this reason. In this case, the court of appeals devised a mixed motive test if one of the purposes was to prevent or impede a lawsuit.

QUESTION: Well, yes, but we're speaking hypothetically.

MR. CORDRAY: Yes.

QUESTION: And there's some circuit court support for where that's the alleged motive, that that could provide a basis for a suit for denial of access to the court.

MR. CORDRAY: Alleged that that is the sole motive, no other motive. I mean, it's -- what I'm trying to communicate is it's very difficult in these cases to -- to suggest this.

It's very easy to allege that this is one of the motives or even the sole motive at a motion to dismiss stage where the -- where the allegations are treated generously and, all of a sudden, all of these claims become constitutional claims. If there's some failure to timely disclose information and some irreparable harm results, this could apply, for example, in undercover Government investigations of criminal conduct, sting operations. If the allegation is made that maybe my attorney inquired, there was some intentionally misleading statement made, and therefore, as a result, some irreparable harm occurred, someone was killed during the implementation of the operation, something of that sort, all of these would become denial of access to court --

QUESTION: Suppose that it is an ordinary case, civil case, criminal system, and they're holding -- a group of rogue policemen are unlawfully somebody in a jail cell and his wife comes in and says, I -- I want to get a -- go to court and get a writ of habeas corpus on his behalf. Now, will you tell me please, is that -- is this going on? And they lie so that she cannot go to court and get the writ of habeas corpus. Now, in that circumstance, would that be a -- a denial of access to the courts?

MR. CORDRAY: In a situation where the Government was holding an individual in custody, therefore physically barring that person from accessing the courts, that person --

QUESTION: No, no. The person -- the wife --

MR. CORDRAY: That -- that person --

QUESTION: -- wants to go.

MR. CORDRAY: That person would have a claim for denial of access to the courts.

The wife or an attorney inquiring on their behalf, et cetera, do not have a right to Government information. The mere fact that someone is incarcerated doesn't mean that their attorney inquiring of the prosecutor's office or the police have some right of access to information.

QUESTION: Suppose -- suppose the Government imprisons the key witness in my suit in order to deprive me of the ability to win the suit. Is there denial of access to courts there? Again, we'll have 1980 -- let's assume 1983 because Bivens has an extra problem.

MR. CORDRAY: Are we talking about a criminal case, a criminal proceeding?

QUESTION: Either --

MR. CORDRAY: A witness -- it would matter if it were a criminal proceeding because there are special fair trial guarantees that the Constitution imposes such as Brady v. Maryland and the like in a -- an ongoing criminal proceeding. If we're talking about a civil case or here prior to any civil case even being filed when we're in the realm of potentially pretrial investigation, discovery of information, people seeking information, that would not constitute a substantive due process right of access to courts claim, we do not believe. Again, those facts, again, are far afield from what's at issue in this case, but we don't believe that -- that that would file a claim, would be our position. You wouldn't need to go that far in this case.

QUESTION: Was a FOIA claim open to the respondent here? Could -- could such information have been sought and obtained theoretically under FOIA?

MR. CORDRAY: At any time. At any time. And in fact, respondent did file FOIA claims later. Her contention here is that she was lulled into inaction, but of course, it remained open to her at any time to file a FOIA claim. It remained open to her at any time to file a lawsuit in the courts. And in fact, she did so. She later pursued litigation to -- under FOIA to get documents. She received thousands of pages of documents.

Part of the complaint here is that the information was not timely disclosed. And again, that's unfortunate. It's regrettable. There may even be individuals who should be called to account for it, but it doesn't constitute a substantive right of access to courts claim under the substantive due process line of cases or, you know, all such communications between Government officials and private citizens --

QUESTION: Mr. Cordray, may -- may I go back to your answer about this being like a sting operation? Those are designed to uncover crimes, and the object of the sting is a suspect. But here, we're not dealing with someone who was suspected of a crime. We're dealing with someone who was seeking information from her Government for perfectly understandable, appropriate purposes.

MR. CORDRAY: That -- that's true, nor do we contend otherwise. But even a suspect, a criminal suspect, is innocent till proven guilty, and the purpose of those operations is to try to ferret out crime. It's true. But it --

QUESTION: But couldn't one make a distinction? I mean, you say if this case, then the sting operation, and I think that however you come out in this case, you're not touching the sting case.

MR. CORDRAY: I don't believe that's correct, Your Honor, because a constitutional line can't be founded there. It can't be maintained there. It has no moorings at that point. We're not talking about guilty suspects who have already been adjudicated. We're talking about individuals --

QUESTION: People suspected of crimes.

MR. CORDRAY: Sure. And -- and here, the Government's purposes involved overseeing covert military operations in a foreign country. There may be innocents involved. There may be people who are impeding our foreign policy and the like. The Government is trying to carry out its functions, carry out its duties and responsibilities, and the same is true of police trying to uncover crime. And the mere fact that someone is suspected or they may not be suspected -- they may be on a list --

QUESTION: The person who's being deceived -- I just don't see where there's any spill-over that you can -- you can disassociate the suspect who was being deceived in order to be caught by the Government and someone who was under no suspicion of any involvement in any wrongdoing.

MR. CORDRAY: We don't think a constitutional line could be -- could be founded there and maintained.

I will say in the case of affirmative misrepresentations by Government officials or affirmatively misleading statements, there -- there are some circumstances where they perhaps are justified. There are many circumstances where they would not be justified, and if they violate a legal duty, there would be legal redress for the violation of the duty. If it's criminal in nature, there would be -- criminal sanctions could be imposed upon the perpetrators. There's a free press and there are political checks. People can lose their job. They'd be subject to censure. People could vote them out of office. But it doesn't in our view constitute a substantive due process right of access to the courts or an actual denial of access.

QUESTION: Mr. Cordray, one of your -- one of your arguments here is essentially a lack of standing argument that -- that there's no remediable harm that's been suffered. Why -- why is that? You say the injunction -- it's -- it's too speculative whether the injunction would ever have issued. But what about a delay in -- in getting damages? Why -- why doesn't that constitute harm?

MR. CORDRAY: A delay in what constitute harm?

QUESTION: In obtaining -- in obtaining damages; that is, had she known this information sooner, she could have brought suit sooner and would have obtained justice sooner.

MR. CORDRAY: Again, I don't think that that founds -- that that meets the standing requirements. We're -- we're concerned here about the traceability and redressability requirements. And at the end of all of this long skein of hypotheticals here is a notion that an American court order would have somehow have prevented the Guatemalan military from executing her husband.

QUESTION: Yes, I am not talking about -- I am not talking about that. I'm talking about the -- I'm just talking about her ability to get monetary compensation for what the Government did. Hasn't that been at least delayed? You say she can still get it. But the answer to that is, yes, well, you know -- but meanwhile, she hasn't gotten it.

MR. CORDRAY: It may have been delayed. She does have tort claims that are now pending in district court, intentional infliction of emotional distress, negligent supervision. Those are proceeding under the Federal Tort Claims Act. And so, again, we -- we would say that she's not been denied access to the courts. She's pursued that access. She is vigorously pursuing it. She's pursued political relief and the like.

QUESTION: Is -- are the claims that are now pending against the individuals or the -- the United States has substituted itself?

MR. CORDRAY: The United States has substituted itself under the Federal Tort Claims Act for the purposes of those claims. They're in discovery in the trial court.

QUESTION: And what -- they're in discovery right now?

MR. CORDRAY: Yes, they are. That's correct.

QUESTION: Would she have had standing if she had clearly brought or clearly adduced the theory that she wanted an injunction against the officials to prevent the officials from continuing to pay money to the agents of a foreign government who were torturing her husband, who in fact was a -- a foreign national? Would she have had standing if she had made that allegation?

MR. CORDRAY: I'm not certain, to be honest, Your Honor. It would be very close to the line.

QUESTION: Why wouldn't she have had? Let's put it that way.

MR. CORDRAY: Well, because -- because there would be, again, a traceability, redressability problem. If she's simply seeking -- her standing is somehow to save her husband's life. That's always been the claim asserted to this case --

QUESTION: Right, and her -- her allegation is that they are torturing her husband because the United States is paying them to do it. And she says, on my hypothetical, I want you to enjoin them from paying more money. That -- that -- the -- the causal connection, at least in the allegation, would have been very clear, wouldn't it?

MR. CORDRAY: It would be close to the line. It would still depend on third party responses to a court order, which this Court has had some --

QUESTION: Well, she might or might not have been able to prove ultimately, had it gone to trial, that stopping the money would stop the action of the foreign government. But as a matter of standing to get to trial, she would have had it, wouldn't she?

MR. CORDRAY: I frankly think it's like the Simon case where the issue was availability of tax credit or tax relief, and it was thought that that was not significant enough to influence clearly the third party's contract --

QUESTION: Well, then your -- well, was it that or was it there was no cause of action? It was --

MR. CORDRAY: Well, we think -- we think both.

QUESTION: But it seems to me you have to take her complaint the way -- the way Justice Souter wrote it. I mean, her complaint --

(Laughter.)

QUESTION: Her complaint is that the only reason they're -- they're torturing is because we're paying them to do that. And if that is the allegation, I -- I think the redressability /causality element is certainly there.

MR. CORDRAY: It would be close to the line because we're talking about independent decisions by third parties in response to a court order would be the issue. That would be the issue.

QUESTION: What do you mean third parties?

MR. CORDRAY: The third party is the Guatemalan military who, in the end, have to change their conduct.

QUESTION: No, no, no. But the injunction is against the payment which she says is the only reason the Guatemalan military are doing this. She wants to enjoin the American officials from paying the money which she asserts is the sole reason they're going through with this. Why -- why --

MR. CORDRAY: But the only claim to standing on her part to enjoin the CIA from doing something would be somehow because it affects her husband's well-being and the like. So, you have to make that further step that the third parties are going to be influenced in a positive way and a decisive way by an American court order, and that's where we think it breaks down. But -- but that's a close-to-the-line case in terms of standing.

QUESTION: How can you be so cavalier? It's close to the line. You -- you win anyway even if it's on the other side of the line?

MR. CORDRAY: We think that there's not standing under Simon and Linda R.S., and we think it's even clearer in a foreign military context where we're talking about foreign nationals not subject to U.S. jurisdiction, who at the end of the chain of reasoning, have to alter their conduct. That's correct.

I'd also like to address --

QUESTION: May I just ask you another question before you leave the subject?

MR. CORDRAY: Sure.

QUESTION: Assume, for the sake of argument, that there is standing in that case. Would there have been a cause of action alleged?

MR. CORDRAY: Here for denial of access to --

QUESTION: On my hypothesis.

MR. CORDRAY: For denial of access to the courts?

QUESTION: Any cause of action.

MR. CORDRAY: By Ms. Harbury for denial of access to the courts. That's the only claim we have before this Court --

QUESTION: Yes, yes, yes.

MR. CORDRAY: Again, it's distant from any allegations of torture or mistreatment of someone. We're only talking about denial of access to the courts based on the alleged --

QUESTION: And -- and she said I -- I want to go into court because I want to press this cause of action. One of your arguments is, well, you've got to get into court first, or -- or at least try to get into court. But another line of argument is whether you're yet at the courthouse door or not, you've at least got to have a cause of action that you could press if you got there.

And my question here is, assume standing, assume your second line of argument on access to courts so that the issue comes down to whether there would have been an allegation of a cause of action on that hypothesis. Would there have been a cause of action alleged?

MR. CORDRAY: We still allege there are many steps on the standing argument in terms of what kind of claims she would have brought. There's -- in the court of appeals --

QUESTION: Okay, but I'm -- I'm saying assume for the sake of argument that there is standing. Would there have been a cause of action sufficient to support the access to courts claim?

MR. CORDRAY: Again, in a situation where the claim is that she did not have timely disclosure of information that would have helped her formulate her cause of action, we do not think that falls within the Constitution. But my --

QUESTION: Do you -- do you concede that at least the claim that there was something unconstitutional or illegal about paying the -- about our Government paying the money to a foreign government for this purpose would state a cause of action?

MR. CORDRAY: We don't concede that. We don't think that that's the case. And again, what we're talking about here is disclosure of information necessary to formulate a claim. We don't think that's constitutionalized under the substantive due process.

If I might reserve the remainder of my time.

QUESTION: Very well, Mr. Cordray.

General Olson, we'll hear from you.

ORAL ARGUMENT OF THEODORE B. OLSON

ON BEHALF OF THE UNITED STATES,

AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

MR. OLSON: Mr. Chief Justice, and may it please the Court:

5 years ago in its Glucksberg decision, the Court urged utmost care in creating new substantive due process rights because doing so removes the matter from the arena of public debate and legislative action. That admonition is acutely compelling in the field of Government-to-citizen communication. Respondent's theory would not only constitutionalize the Freedom of Information Act and create a constitutional pre-litigation discovery right against the Government, but would also affirmatively discourage an unquantifiable, but immense volume of valuable informal Government communications that take place thousands of times every day. As the Court held in OPM v. Richmond in 1990, the natural consequence of a rule imposing liability for Government statements would be a decision to cut back and impose strict controls upon Government provision of information.

Government officials respond to informal requests for information every day in -- in an infinite variety of contexts with infinite -- with an infinite array of answers, candor, off-the-record disclosures, and occasional polite evasions. One of the most commonplace of those governmental responses to requests for information is the equivocal and innocuous I will get back to you that forms the core of respondent's constitutional theory.

Today, the respondent urges that that I will get back to you, when accompanied by an easy to allege and hard to disprove, in the words of this Court, allegation that such responses were intentionally false for the purpose of discouraging a potentially productive litigation will become the trigger for expensive, burdensome, and distracting personal suits for damages against the offending officials. The -- the consequence will be a drying up of informal Government-to-citizen exchanges and a regime of no comment or brush-offs or brusk refusals to discuss, the precise antithesis of the open Government the Framers of the First Amendment intended.

So, to constitutionalize the responses in an informal context where the response was not required by any provision of law, no response was required at all, the response violated no law or affirmative duty to respond, it promised no specific action or any specific time table -- I will get back to you didn't promise any --

QUESTION: Well, the allegation, though, is that the response was given in -- with the intent and in order to prevent a potential lawsuit. At least that's the allegation.

MR. OLSON: That is the allegation, and that's a conclusionary information and belief, easy to allege, hard to disprove allegation that can be made in every one of these cases. It's easy to imagine an infinite number of situations. I think it was Justice Ginsburg that was asking about the sting operation. The sting is a falsehood that's created by government to accomplish some law enforcement objective, but if it's a false storefront or something like that, it's a falsehood to a lot of different people.

There are lots of different situations where the Government quite legitimately may have reasons to give false information out. We're not defending all the circumstances in which that might occur because there are duties and responsibilities and statutes that are imposed for that sort of thing. But to constitutionalize this subject would just put this broad blanket of inhibition over the whole disclosure of -- this was an informal oral communication. It wasn't a written communication. It wasn't where writing was occurred.

She had at any time -- the respondent had at any time the opportunity and right to bring an action under -- to -- to bring a request and then an action under the Freedom of Information Act, which is Congress' carefully structured regime for receiving information from the Government. If she had received an evasive or nonresponsive answer in connection with the Freedom of Information Act, that would have been remedied or remedial in a court under the strictures that Congress carefully developed and this Court has implemented over the years. There's --

QUESTION: General --

QUESTION: Well, do you say there should be an exhaustion requirement? You have to at least go with a FOIA request?

MR. OLSON: Well, Justice O'Connor, even if she had gone -- well, she -- if she -- I wouldn't put it as exhaustion. What I'm suggesting is that because there is this regime in place already, there are other ways to get information from the Government. There -- there could have been a lawsuit brought at any time, although this would have been very, very remote, this lawsuit. And -- and the answers to questions could have been policed by a court.

We're not suggesting that there's necessary an exhaustion requirement, but that to constitutionalize these exchanges and to create remedies for damages under these circumstances, when the legislature has developed an infinite -- I mean, not an infinite, but a substantial array of opportunities to both obtain information and to police the type of information that's obtained, if a Government official lies, there may be certain circumstances where they are subject to discipline.

There -- there may be -- and we're talking about all levels of government, State, local, and the National Government. There may be remedies that are available. Many of the cases cited by the plaintiff were violations of underlying provisions of law. There was manufacturing of evidence in some of those cases.

What we're saying is that there are ways to deal with Government-to-citizen communications that don't have the --

QUESTION: What -- what do you do, Mr. Olson, with the circuit court cases which have held under 1983 a violation of the right of access to courts when there's a coverup of a -- of a police murderer or something of that sort?

MR. OLSON: Well, precisely.

QUESTION: Is there a right of access to courts in your view in those cases?

MR. OLSON: We believe that there is not. We believe that in each of those cases, there were circumstances where there were other rights that were violated, and that to take the step that those courts took, to the extent that they go beyond the violation of other underlying rights, would create this very problem that the Court urged caution about. The consequence could be the drying up of information.

The creation of an additional right in those areas is problematical in the first place in terms of what it would accomplish beyond the rights that are already in existence. And the down side consequence to the Constitution, to the regular exchange of information, and the limitation, as this Court said in Glucksberg --

QUESTION: I suppose -- I suppose that they could allege that the drying up of information was also done in order to prevent them from bringing a lawsuit, that is, if you say no comment.

MR. OLSON: Well, they --

QUESTION: They could allege the only reason you said no comment was you didn't want to give the information.

MR. OLSON: Of course. As a matter of -- as a matter of fact, Justice Scalia, what they did say is that -- and this is on page 20 of the transcript in the oral argument, and there is something similar in the -- in the brief, that they had -- that they -- we can't get back to you or we're not able to respond to you -- they suggested that that would be a perfectly constitutional response, or as you say, a no comment would be a perfectly constitutional response. That could have been a lie too. We can't -- I'm sorry we can't get back to you. Well, in fact, they could get back under the theory pleaded in the complaint. So, that would have been a lie too.

It illustrates the slipperiness of the slope that the respondent's theory would ask the Court to embark upon. Any of those infinite varieties of exchanges under --

QUESTION: I don't see how no comment could be a lie.

MR. OLSON: Pardon me?

QUESTION: I don't see how no comment could be a lie.

MR. OLSON: No comment might not be a lie, Justice Stevens, but -- but the -- the respondent specifically says it would have been constitutional to say I cannot get back to you, or if there is information, we're not in a position to give it to you. There are -- that's -- those specific things that are in the brief itself and in the transcript of the oral argument could easily be lies as well, and they could easily be characterized as lies.

QUESTION: Is it your position, just to be sure, that the refusal to give information can never be a denial of access to the courts?

MR. OLSON: I -- I hesitate ever to say anything of that sort. There are circumstances when it conceivably could. There could be legal duties triggering a requirement. In the habeas situation that one of the Justices asked about, there are rights of the individual which may be asserted by -- under appropriate next-friend standing, but it's the rights of the individual in custody.

QUESTION: Well, withholding could give rise to tolling of the statute of limitations.

MR. OLSON: Absolutely, and that's another situation, Justice -- Chief Justice Rehnquist, in which if something is delayed -- and I think Justice Scalia asked that question. There's a tolling remedy. There's additional damages because of the delay. There are remedies in virtually all of these circumstances.

One last point, if I still have time, is that the causation, the actual harm element of this so-called cause of action, is extraordinarily remote. The respondent is taking the position that if the Government had just answered constitutionally by saying no comment, somehow she might have filed a Freedom of Information case. It might have been in time. It might have been in time then for her to file some sort of justiciable, nonfrivolous cause of action, which she doesn't really ever fully identify except calling it some sort of injunction, and that that sort of injunction would have caused a court somehow to provide the opportunity to save the individual's life that she was attempting to save. That all is extraordinarily remote when -- when compounded with the various aspects of the elusive nature of the right being articulated here, the elusive nature of the remedy that could be -- possibly be given and the damage that constitutionalizing this right would create. We submit that this a course that this Court should not and would not under its precedents want to go.

QUESTION: Thank you, General Olson.

Mr. Harbury, we'll hear from you.

ORAL ARGUMENT OF JENNIFER K. HARBURY

ON BEHALF OF THE RESPONDENT

MS. HARBURY: Mr. Chief Justice, and may it please the Court:

This case turns upon a very narrow question of law, specifically the United States officials take affirmative and wrongful action to deceive a citizen, number one, with the intention of obstructing her or preventing her from proceeding to the courts of law for emergency injunctive relief, and where such affirmative and wrongful conduct and actions of deceit not only delay the filing of that case, but in fact extinguish the cause of action, and when it is known at the time that her husband is in a secret cell being severely tortured and that he is in danger of imminent extrajudicial execution. Ironically I note that today this case is in the highest Court of the land, but it is exactly 10 years and 6 days too late.

Given the importance of a number of the points that have been made today, I would like to start with a few clarifications.

Number one, I'm not arguing here that the petitioners simply were negligent or did not get back to me on time or that they had some duty, when 6 days after my husband's capture, they learned that he was being tortured and secretly detained. I'm not say that they had a duty to locate me, to knock on my door, and inform -- and inform me of his situation.

I'm saying that they could not take wrongful and affirmative steps, once I went to them, to deceive me, to tell me that there was no information when, in fact, they had numerous bulletins from the CIA telling them that he was captured alive, that he was undergoing torture, that they were falsifying his death, and when I was speaking with them, that he was still alive and could, in fact, have been saved.

Number two, I am not alleging here that the -- that the Government officials should have given me sensitive national security information. I'm alleging that they covered up information that was not sensitive, that our own Government has since decided did not constitute state secrets and could have been given to me initially, and that that nonsensitive information had all the details I needed in 1993 to approach the courts of law for an emergency injunctive to -- injunction to --

QUESTION: Ms. Harbury, may I ask you --

QUESTION: If -- if this were a -- if this were a private cause of -- of action without governmental actors, it would be just a tort of deceit, I -- I take it.

MS. HARBURY: The tort of --

QUESTION: Like a tortious action for deceit if these were all private actors. We'll leave the Government out of it. And it seems to me that what you're trying to do is to make up for the absence of a tort of deceit under the Federal Tort Claims Act by creating a constitutional right. Is that what's -- is that what's happening here structurally so far as your argument is concerned?

MS. HARBURY: No, Your Honor. I'm alleging that any kind of affirmative and wrongful conduct by a state official, when the objective and, in fact, the result is to prevent the filing of a lawsuit, access to courts, then -- then a constitutional right has been violated.

QUESTION: I'm suggesting to you that the only reason you -- you must say that is because if you followed the usual course of the law and file an action for deceit, you'd be barred under the Federal Tort Claims Act. That is correct, is it not?

MS. HARBURY: I believe the Federal Tort Claims Act could not have been triggered in the case when one was only asking for injunctive relief, Your Honor.

QUESTION: In -- in the context of a private person, under the law of torts, there is an action for deceit based on the facts that you've -- that you've discussed, is there not?

MS. HARBURY: Yes, there is.

QUESTION: All right. And the reason that you have to show an access -- right of access to court is because, under the Federal Tort Claims Act, you can't sue for deceit. I mean, that's -- that's where we -- that's the beginning point here. Isn't that right?

MS. HARBURY: I could not sued for deceit under the Federal Tort Claims Act. That is correct, Your Honor, but that action, even if I could file it under the Federal Tort Claims Act, would not be focused on the wrong and the injury that I am alleging here. I'm saying that my day in court, when I could have saved my husband's life, has been extinguished wrongfully on the basis of a violation of standard -- of standard duties of conduct.

QUESTION: Ms. Harbury, on that central question, an issue kept coming up repeatedly in the D.C. Circuit during your argument there, and the court asked, access to court, access to do what?

Now, the -- they rejected your claim that there was a Fifth Amendment right, a substantive right, involving the Government's participation in -- in the torture abroad. They rejected your argument about a familial relationship. So, what I don't understand at this point is rejecting your claims, your substantive claims, of a wrong to yourself, wrongful conduct engaged in by the United States, access to court for what? If you have no Fifth Amendment claim, what is there? What claim could you state?

MS. HARBURY: All of the claims that I would have stated, Your Honor, would have been rooted in the context that in the absence of extraordinary circumstances, as in Guatemala in 1992 and '93, the use of torture, the causation and participation in torture by United States officials, was completely outside of the scope of their delegated authorities and, in the alternative, in violation of their own regulations and subject to review under the APA for emergency injunctive relief. That core concept would, in turn, have allowed me to sue for conspiracy to end aiding and abetting, assault and battery in his case, emotional distress in my case, intentional refusal to supervise independent contractors.

And I would still assert that although my familial rights have not been recognized in the Bivens context for a number of good reasons, because there's no easy way to draw the line in damages in that context, but had I gone to a court of law and said, this is my family, I have the right to choose our medical care, I have the right to choose whether or not together we will have children and how we will raise them and which church we shall worship at and what professions we shall exercise, the most fundamental right of all that I would have presented seeking injunctive relief is that I have a right to defend my family from wrongful outside actions, especially when they're taken by the state. I would have brought all of those issues before the courts of law and asked for emergency assistance.

QUESTION: At bottom, in this case you're claiming damages now. Is that not correct?

MS. HARBURY: There are some tort claims issues still in the district court, yes, Your Honor, but those cannot make good the lost day in court to save a human life.

QUESTION: No, but -- but what's running through my mind is the -- there's a long chain of causation here, and if -- if one were persuaded -- and I'm not saying I am, but if one were persuaded that even if you had all the help that you sought at the time you did, there still would not have been time to save your husband's life. And therefore, the ultimate damage would -- would have been suffered anyway. Would you be entitled to prevail?

MS. HARBURY: If the question where there was no time to save my husband's life?

QUESTION: Correct.

MS. HARBURY: I would certainly want to bring my witnesses and my evidence to a factual hearing on exactly that subject, Your Honor, because I believe there was at least 6 months if not, under more recent information, a year or a year-and-a-half during which I could have saved my husband's life. But under the allegations in the complaint, 6 months. And that any court faced with torture and the possibility that someone tomorrow may be literally thrown from a helicopter, I do not believe that any court in this country could not have acted swiftly to redress that situation.

QUESTION: In -- in this case, Ms. Harbury, you are seeking money damages, are you not?

MS. HARBURY: I am, Your Honor. Money damages related to other harm which was incurred, not the equivalent of the day in court to save my husband's life, which has been extinguished. There is no -- there is no way that I can now recover that day. So, the damages claims in the lower court are on peripheral injuries.

QUESTION: You began by telling us that this is a very narrow remedy that you seek. I have trouble with that. The Solicitor General tells us that the consequences of your theory are that for innumerable small matters, which involve access to courts, the Government is going to be sued all of the time. And as you know, when the law evolves and we decide cases, we -- we, of course, look to the egregious nature of the conduct in a particular case, but we also have to look at what we're creating as a general rule. And the Government says as a general rule what you're asking for is a sweeping, revolutionary cause of action.

MS. HARBURY: Yes, Your Honor. I think that in this case that is not a true concern. If I may elaborate on that.

Number one, the circuit courts that have dealt with the issue of access to the courts in the context of a Government coverup have created a solution that would so filter out most cases that there would not be a flood gate effect. Specifically, just delaying a case, as opposed to extinguishing that actual cause of action, as in this case, will not be a harm that in itself, without further damage, is going to be actionable as a constitutional violation for denial of access. So, in the vast majority of cases, where an official makes a neutral statement, there's not going to be any damage done that the fact finder or the judge in the district court is not going to be able to remedy with his panoply of equitable tools.

The second filter, though, is that there must have been harmful and affirmative and wrongful conduct aimed at obstructing the access to the courts, blocking that person from going to the courts of law. That means that in the context of deceit, which is presented here, that the statements have to have been intentionally deceptive, not just words of courtesy which would be --

QUESTION: When -- when you say wrongful, Ms. Harbury, you don't mean in violation of any particular statute. You mean something broader than that, don't you?

MS. HARBURY: In this case it would be a common law -- common law tort, Your Honor, to commit intentional deceit where the person making the deceptive statements is fully aware and intends that a reasonable person will rely on that statement to their detriment.

QUESTION: The Secretary of State is liable for the common law tort of deceit under those circumstances is what you're saying.

MS. HARBURY: I'm saying that where the common law tort of deceit is the wrongful act which was taken in order to block access to the courts of law, then it becomes a constitutional tort. The simple act of deception I doubt would be actionable in most cases, especially when the words were simply courtesy words and a reasonable person, hearing some -- one statement, for example, that oh, we're very concerned, a reasonable person would probably not rely on that statement to mean more than we'll write a letter of inquiry for you.

But what is set out in this case, what is alleged in this case is that there was an array of statements made by numerous persons in the State Department and other agencies which were intended and which did give a number of false impressions and false understandings, specifically that the United States had no information at all about what was happening with my husband. In fact, they knew that the CIA was deeply involved. They knew within 6 days of his capture that they were falsifying his death and planned to torture him for his information.

QUESTION: Ms. Harbury, from the time you did -- you did get information from the Government ultimately when you brought your Freedom of Information Act suit. From the time you made your request under FOIA until you received that information, how much time elapsed?

MS. HARBURY: I made the FOIA request in January of '95. A number of disclosures were made by Government officials in March, and in the ensuing uproar, I then began to get some preliminary documentation later that fall.

The reason that I filed my FOIA, for purposes of clarification here, in January is that the 60 Minutes broadcast, for the first time ever, had indicated to me that the U.S. officials were deceiving me, that they weren't --

QUESTION: My -- my point is your -- your theory is, if I hadn't been lulled into the sense that the Government was my friend, I would have immediately filed a FOIA request and I would have gotten this information in time to seek this injunction. But in fact, if it takes -- there was a 6-month interval from March until September, assuming that September was the date of execution. If the FOIA lawsuit would have taken more than 6 months to process, then you would not have found out anything in time to bring this injunction action.

MS. HARBURY: Under those conditions, Your Honor, knowing or believing that my husband could still well be alive and being subjected to torture, I would have been in court immediately for a TRO for expedited handling of that case. The reason I didn't do so in '95 is because I learned that my husband was dead. There was no longer any reason to go for an emergency injunctive relief.

QUESTION: Do you know of FOIA cases that have been handled that way with a TRO? Or you're saying that this is a unique situation?

MS. HARBURY: Your Honor, I believe the FOIA itself makes provisions for expedited handling where necessary, and I believe that any Federal district court, using their rights and their equitable remedies for emergency situations, could have ordered the emergency processing. And in fact, those documents were not sealed away in remote files. They were being reviewed, actively reviewed, by many of the petitioners as those events were unfurling.

QUESTION: Well, would they? That's -- I mean, obviously reading your story, one is immediately sympathetic, and it's a very sad and difficult. I understand that.

And suppose you were in court and the court might think there are other people with similar stories, and indeed, foreign nationals are quite often perhaps, from what one reads in the paper, subject to very bad treatment at the hands of other foreign nationals. And our Government supports some of those and because we must, according to what they say.

Well, how is a court supposed to know whether, when you have the CIA, when you have one group of foreign nationals hurting another group of foreign nationals, when there's egregious behavior throughout the world and we have to support some -- how in your view can we distinguish this case from the general problem of foreign relations, from the general problem of the CIA, from things that courts by and large don't go into?

MS. HARBURY: If I may. I'm not sure if I'm understanding your question, Your Honor.

QUESTION: Well, I'm really trying to work getting you to address what I would see as a major implication, which is not at all casting doubt on -- on the sympathy with which an individual might have, but rather the problem of conducting foreign affairs, which we're told by the Government requires courts to stay out of certain things and your thing is in that category that they say stay out of. And I'd like you to say what you want about that.

MS. HARBURY: We're -- there are, of course -- there is, of course, here a case within a case. There's the 1993 claims I would have brought and there's this case for --

QUESTION: No, no. I'm thinking of the case within the case because, after all, you have to have had a claim that a judge would have gone and addressed, otherwise the blocking you from that wouldn't have mattered.

MS. HARBURY: Yes, Your Honor. In 1993, the claims for emergency injunctive I would have brought, although as in the redistricting cases, it's not that they don't touch on a political question, or in this case a foreign affairs question, but they would have not required the court to interfere with ongoing formation of foreign affairs. We would not, for example, have been asking that the courts of law determine whether or not our military or our CIA should be present in Guatemala or what our relationships with the Guatemalan military, which was later deemed by the United Nations to have engaged in genocide against the Mayan peasants during the war. The court would not have been required or even asked to deal with any of those issues.

There would have been a very limited question presented, which is may the CIA, in the absence of any extraordinary circumstances such as war or imminent national security crisis, in the absence of any of those conditions, may they request and pay for information they know is being contemporaneously extracted through the use of extreme torture and refuse to, in any way, instruct or supervise their own contractors and, in addition, shield those very assets, or informants in this case, from Congress which was trying at that time to force the Guatemalan military to better respect human rights.

In fact, our foreign affairs policy at that time was to promote human rights in Guatemala where the army was quickly becoming an international pariah for a number of very good reasons. And these actions of rogue operators with respect to the peace process, in respect -- and with respect to promotion of human rights were undercutting the foreign affairs. This Court, by taking -- or the court in the United States, by taking action in 1993, would simply have settled whether or not the CIA may pay for torture in the absence of any extraordinary circumstances.

QUESTION: May I -- your answer raises this question in my mind. If you say you're the trial judge in 1993 with the complaint coming in and you think you're right, you should get relief, do you think the relief that would have been ordered by the -- the proper relief at that time would have been simply an order not to pay any more money to the Guatemalan people, or would it have been broader relief covering all the matters you've discussed?

MS. HARBURY: I would have asked in 1993 for three steps to have been taken by the CIA through -- through an injunctive -- through an injunction by the courts. Number one, which -- would be the obvious. Please don't ask for more information and promise to pay for it, especially when those payments are often 20 to 30 times more than the annual national salary in Guatemala. And number two --

QUESTION: Well, let's get the first one. What would the first have been? An order -- tell me again. What -- what would the injunction say on that first point?

MS. HARBURY: The first point of the injunction would have been to prohibit CIA officials from requesting and promising payment for and making payment for continued information contemporaneously being extracted through the use of torture from a living prisoner. That would have been point one.

QUESTION: Okay.

MS. HARBURY: Point two would have been these are your employees. You may not refuse to engage in any proper supervision of them. You must at least sit down and talk to them and indicate to them what the parameters of human rights law are and international law.

And number three, you may not shield these people from the wrath of the United States Congress. You are supposed to report those matters to Congress.

QUESTION: And you say shield those people. Which people? Shield the members of the CIA or the people who are doing the -- the interrogating?

MS. HARBURY: The CIA was not properly reporting my husband's situation to Congress at the time, and the petitioners in this case were repeatedly writing to Congress saying there is no information about Mr. Bamaca at all. The same statements that were being made to me were being made to everyone else. We have no information. There was so much information appropriate for declassification that I could have been inside of a court within 24 hours.

With regards to torture, I would like to borrow two sentences from Patrick Henry, which I find very, very appropriate today. The issue of the times was with recent memory of war on our territory and the scars and the trauma that that had left. There was an ongoing debate in Congress as to whether or not sometimes U.S. officials should be allowed to commit torture. His statement: what has distinguished our ancestors was that they would not permit torture or cruel or barbaric treatment. Congress may tell you that there is a necessity of strengthening the arm of the Government, but if we do so, we are then lost and undone.

This is the bright line our Government has always taken, all branches of this Government. The CIA was established in aftermath and horror that went with what happened in World War II, the Holocaust in Europe, the war crimes that occurred in the South Pacific. Treatment of prisoners of war came up again and again in In re Yamashita. It's mentioned again in Johnson --

QUESTION: Well, I mean, that's clearly true. What in your opinion should the CIA do if it discovers that other people not in the CIA are engaged in this?

MS. HARBURY: Questions that I would leave to Congress and that are not raised in this case would be may -- may a CIA agent purchase information from someone known to be an unsavory character. That's not presented here.

The question in -- that's presented here, the facts that are presented here is when you have an extremely close and supervisory relationship with a given informant for years, you know that they are -- they are notorious as a torturer and that, in fact, they were engaged in a liquidation campaign against civilians, and you say, we want more information from the living prisoner in that room, you have the cattle prod and the pliers, here's a check for several times -- maybe 10 or 20 times your annual income -- would you please get that information for us, that is crossing the line. That's crossing a very bright line that our Government has never permitted. Our Government has allowed under certain circumstances to take life, never to torture.

QUESTION: Well, and I assume that -- that would have been part of your -- of your lawsuit, that you would have had to establish that it is either what? A violation of a Federal statute or of the Constitution to -- to permit torture.

MS. HARBURY: I -- I would be saying that carrying out torture was outside the scope of any statutory delegation of power to the CIA or in violation of its own internal policies and regulations.

QUESTION: You're relying on the statutes or lack of statutory authority to do it.

MS. HARBURY: Or in the alternative, violation of any -- any internal regulations they might have for extraordinary circumstances.

QUESTION: But you couldn't make it in violation of the Constitution because the D.C. Circuit threw that out. There's something just unseemly about your saying it violated a regulation to torture someone abroad, but it -- I have to accept for purposes of this case that it didn't violate the U.S. Constitution.

MS. HARBURY: Leaving that issue aside, it certainly violated any authority ever delegated by Congress to any person, any official in this country to engage in torture. It has never -- no authority has ever been delegated at that level to any official, not even from the time of our Founding Fathers right up through the present when we've only recently continued to sign on to international treaties prohibiting torture of a human being.

QUESTION: You make a -- a statement that the United States could have raised a national security defense, but it didn't choose to do that. What -- what do you envision to be the nature of that defense?

MS. HARBURY: If the petitioners wished to present to the district court an affirmative defense in the answer, which has, of course, not yet been filed -- we're still at the motion to dismiss stage -- stating that somehow there were overriding national security interests which forced them or justified their actions in this case, that -- that met the strict scrutiny test of a fundamental right such as access to the courts, if they wish to make that statement and try to provide that evidence, then I would wish to come to the courts of law and provide my evidence of pretext that that -- those extraordinary circumstances of national security did not at all exist in Guatemala during this relevant time period. And it would be, of course, for the judge to decide that issue.

Even giving great deference to the Government position, I believe that I have evidence that would clearly establish that any such assertion was pretextual.

QUESTION: Well, you're not talking then about a Reynolds defense on the part of the Government where you -- where there is no evidence to presented. You're talking about something else?

MS. HARBURY: I'm saying -- I'm trying to conjecture what the petitioners might raise because they haven't raised it yet. But the court below, the appellate court, left open that if in their answer they wished to present a claim of national security as an affirmative defense, which they have not raised to date, they're free to do so. And I'm free to answer.

Lastly I -- I don't believe that the 1983 -- the 1993 claim would have raised any -- any undue effect or impact on our Government officials in any way. They can continue to make courtesy statements. They can continue to give the Glomar denial, which would have given me fair notice that documents might exist in their files. Instead, I was told there's nothing in this file. Maybe you should look elsewhere. So, I did. I went to Guatemala and looked in the files of the Guatemalan military, which was of itself a less than charming experience.

And I do believe that it's very important that we remember that even in such cases as the conduct of our military affairs in the Chappell case, for example, or in U.S. v. Stanley, although enormous latitude is given to our officials and we have decided not to engage or to provide Bivens remedies under those contexts, in all of those contexts, it has been noted that equitable relief would still be correct and adequate. So, I believe that my right in 1993 to move forward and obtain equitable relief is without question.

Lastly, addressing the issue of -- of qualified immunity for the petitioners here, the issue of access to the courts is not a newfangled cause of action. It was stated long ago in Chambers v. the Baltimore & Ohio Railway that that right is fundamental. That right is the alternative of force. In an organized society, it is the right conservative of all other rights and lies at the foundation --

QUESTION: That was a full faith and credit case, was it not? The -- it wasn't an express right of access to courts claimed as a right under the United States Constitution.

MS. HARBURY: I believe in that case the question was the denial of the right of citizens from another State, in Ohio, to actually file suit, and similar to In re Hull, it was interpreted as barring the courthouse door.

QUESTION: But it was decided not under some substantive constitutional principle, but under the -- the full faith and credit or Interstate Commerce Clause, was it not?

MS. HARBURY: That's correct. But the Court, in discussing those issues, noted the fundamental importance of the access to courts and the equal access to courts of all citizens.

I believe that it was clear enough and very clearly established in all of the other circuit cases and in the long line of cases, due process and access to courts that this Court has always given, that the rights that I had in 1993 as in today were very clearly established. The Government cannot take wrongful and affirmative steps, in this case intentional deceit, knowing that a person will reasonably rely to their detriment on those statements, in order to prevent them from going to the courts of law and in order to obstruct and thwart their ability to investigate their own case and gather their own information.

When those affirmative and wrongful steps are taken, whether it be locking a packet of evidence in a desk drawer or locking crucial information in a file cabinet and telling the person that there is none, when the Government acts to conceal information and takes wrongful steps as opposed to simply passively standing by or stating no comment, and the harm occurs as planned, and the case is not simply delayed but destroyed, in that case I think that it has been clear since Baltimore and since In re Hull and since --

QUESTION: Thank you -- thank you, Ms. Harbury.

MS. HARBURY: Thank you, Your Honor.

QUESTION: Mr. Cordray, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF RICHARD A. CORDRAY

ON BEHALF OF THE PETITIONERS

MR. CORDRAY: Thank you, Your Honor.

At a minimum, the extent of legitimate debate today should resolve the qualified immunity issue in this case. There have been allegations made about torture, about atrocious treatment of individuals in foreign countries. It has occurred throughout this century.

But before the Court today is a one particular claim, that by saying we'll investigate and keep you informed, Government officials denied a substantive due process right of access to courts asserted by respondent here.

There is no allegation in this complaint, if you look at pages 2 to 3 of our yellow brief, which fairly restates the -- the pertinent allegations of this complaint, that these people were told there was nothing in the file. Instead, the claim was that they said we'll investigate the matter. We'll keep you informed, and that perhaps that was intentionally misleading. That's -- that's the allegations here. That's all the allegations here.

I would also say that in terms of this chain of causation, the allegation is that at the end of the chain, Guatemalan military, who allegedly were torturing and holding rebels in the midst of a civil war, were going to refrain from conduct because payments might have been withheld by the United States -- that's extremely speculative. It's as speculative or more so than Simon and Linda R.S.

And finally, I would say that, again, we are distant here from any allegations of torture. The allegations are that our clients perhaps mishandled informal channels of communication about information that could have been provided that they may or may not have actually had, and -- and we think that that's just very distant from the facts that are actually alleged in the complaint in this case.

Maximizing a particular remedy, which is what's being sought here, does not equal barring a cause of action, and there is no legitimate constitutional claim we think that the Court could recognize based on its precedents.

If there are no questions, thank you very much.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Cordray.

The case is submitted.

(Whereupon, at 11:59 a.m., the case in the above-entitled matter was submitted.)