How cool is Jennifer Harbury? She is currently arguing her own case before the Supreme Court, demanding the right to sue the government because, she maintains, its leaders deliberately misled her about the murder of her husband, a Guatemalan rebel leader named Efrain Bamaca Velasquez who was killed in army custody during the counterinsurgency war in Guatemala in the early 1990s.
Harbury has a case. The State Department has confirmed that Col. Julio Roberto Alpirez, who was present during Bamaca's interrogation/murder, was a paid CIA asset. A CIA report alleges that Alpirez did the dirty deed himself. When then-State Department official Richard Nuccio informed Senator Robert Torricelli of that, Nuccio immediately found himself the target of a Justice Department investigation. A federal prosecutor accused him of betraying America by conspiring with Torricelli to blow Alpirez's cover, of destroying CIA officers' careers and of being an agent of the guerrillas. Although the United States offered no official charges or accusations, in a highly unusual move the CIA demanded that the State Department strip Nuccio of his security clearance, thereby depriving him of his livelihood. Harbury endured a thirty-two-day hunger strike to force those officials to come clean. She is now arguing that she could have saved her husband's life through the US court system had she known the truth during the period between his capture in March 1992 and his murder in 1993 or 1994.
A report by the President's Intelligence Oversight Board rejected the charge of deliberate lying by US officials but admitted that if the government had bothered to investigate "when Jennifer Harbury first raised the issue of her husband's fate" in the spring of 1992, the State Department "might have been able at a much earlier date to provide her with useful information." The key word here appears to be "useful."
Warren Christopher, Anthony Lake and the other Clinton Administration officials named by Harbury are probably right when they argue that leveling with her at the time would have made little difference in saving her husband's life. US courts do not have jurisdiction over the Guatemalan military (though US foreign policy officials often do). They also deny that they lied. But for procedural reasons, the ex-officials have to argue that regardless of whether they lied, a US citizen has no legal right to sue a public official who does lie. Solicitor General Theodore Olson filed an amicus brief arguing on behalf of the government's right to lie: "It is an unfortunate reality that the issuance of incomplete information and even misinformation by government may sometimes be perceived as necessary to protect vital interests," he maintains.
This particular case stinks for more reasons than can be precisely counted. In addition to the above, Bamaca was killed by a genocidal government that enjoyed the enthusiastic support of Ronald Reagan and George H.W. Bush. This is not only my opinion; it is the view of the Guatemalan Historical Clarification Commission's 1999 report, which condemns the United States for aiding a "criminal counterinsurgency" against the nation's indigenous Mayan population. America's Guatemala policy was anticommunism gone mad.
Moreover, if David Brock is to be believed, Olson is himself tainted by his lies to Congress. According to Brock's Congressional testimony, Olson lied during his confirmation hearings about his role in the Richard Mellon Scaife-funded "Arkansas Project," run out of the offices of The American Spectator and designed to undermine the Clinton presidency by any means necessary. What a surprise, therefore, that he thinks it's OK for the government to lie as well.
But the sorry truth is that the question of the government's right to lie is a lot more complicated than it looks. The Supreme Court has repeatedly enshrined in law the extremely provocative statement enunciated in the aftermath of the Cuban missile crisis by Assistant Secretary of Defense for Public Affairs Arthur Sylvester: "It's inherent in [the] government's right, if necessary, to lie to save itself." Dishonest officials have stretched the "national security" definition beyond recognition to protect not only thuggish murderers but also narrow political interests. But the principle itself is not wholly unsound. Although lies undermine the confidence in, and practice of, democracy, in the wake of the September 11 attacks, one can imagine circumstances in which a temporary lie might save lives without endangering the Constitution.
The problem is how to set enforceable limits. Government officials lie all the time. And while it is a crime to lie to Congress and to commit perjury, these acts are prosecuted in such a haphazard and nakedly political fashion that they can hardly serve as much of a deterrent. Lawrence Walsh's legitimate prosecutions of Reagan Administration officials who lied about matters of state were mocked by allegedly high-minded pundits like David Broder and George Will and overturned in a cowardly fashion by defeated President George H.W. Bush after the 1992 election.
Meanwhile, a fanatical cabal inside the Republican Party and Kenneth Starr's office manipulated these same laws to impeach President Clinton and disarm his popular agenda over a private lie not about a matter of state but a routine case of almost adultery. Given that hundreds of thousands if not millions of Americans have told this same type of lie to protect their families (or themselves) from humiliation, they saw this partisan gambit for what it was, punishing its perpetrators in the 1998 election. But the self-righteous pooh-bahs of the punditocracy--many of whom celebrated the Reagan-era liars and quite a few of whom told their share of adulterous lies--behave as if their hypocrisy were somehow patriotically inspired.
Jennifer Harbury continues to fight not only for justice for her husband but also for a reasonable definition of the government's right to lie. Bully for this brave woman who, despite her personal tragedy, takes democracy more seriously than its alleged protectors. She is a patriot to put the pundits to shame.