Jennifer Harbury was married to a Guatemalan guerrilla leader who suddenly disappeared in 1992. In response to her persistent inquiries, high-ranking State Department Officials told her that the government had investigated the matter and had no knowledge of her husband's fate. In fact, the CIA had notified the State Department that the man was being held by a Guatemalan Army commander who was being paid by the CIA for information. After over a year of interrogation and torture, Harbury's husband was executed.

The D.C. Circuit Court of Appeals held that Harbury could bring a Bivens-type lawsuit against the State Department officials for deceiving her for the purpose of preventing her from going to court to free her husband.

AAJ filed an amicus brief supporting Harbury, arguing that the right of access to the courts is a recognized fundamental right.

The Supreme Court in a 9-0 decision reversed. Justice Souter, writing for the Court, recognized for the first time a cause of action against government officials whose misrepresentations resulted in plaintiff’s loss of a judicial remedy. Lower courts have located the right of access to courts in the Privileges and Immunities Clause, the First Amendment, and Due Process guarantees. Nor did the Court recognize a national security exception to this right, as advocated by the Solicitor General. However, the Court held that Ms. Harbury was not able to maintain a civil action for violation of the right in this case, because she was unable to demonstrate that a court would have been able to grant an effective remedy for her husband’s imprisonment by a foreign army.

Last Updated: Dec. 5, 2002