Christopher v. Harbury – Oral Argument – March 18, 2002

Media for Christopher v. Harbury

Audio Transcription for Opinion Announcement – June 20, 2002 in Christopher v. Harbury

del

William H. Rehnquist:

We’ll hear argument next in number oh one three ninety-four, Warren Christopher versus Jennifer K Harbury.

Mr. Cordray.

Richard A. 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 nineteen ninety-three, 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 of no holding of this Court that would lead to such a result.

[Inaudible]

Anthony M. Kennedy:

T- To begin with right of access, y- the Bell case, Bell versus Milwaukee, is discussed in in the in the briefs.

That’s nineteen eighty-three.

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?

Richard A. 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 an- 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 militar- o- operations in a foreign country,

and that would result…

But your basic position is…

Anthony M. Kennedy:

is that there’s a police coverup and the police destroy the evidence and they lie, e- et cetera, no n- no cause of action for denial of access to courts.

Richard A. Cordray:

That’s correct.

a case…

Sandra Day O’Connor:

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.

Richard A. Cordray:

We believe so, Your Honor, and for this reason.

impede a lawsuit.

Sandra Day O’Connor:

we’re speaking hypothetically.

Yes.

Sandra Day O’Connor:

court support for…

where…

Sandra Day O’Connor:

that’s the alleged motive, that that could provide a basis for a suit for denial of access to the court.

Richard A. Cordray:

i- Alleged that that is the sole motive, no other motive.

court…

Stephen G. Breyer:

case, civil case, criminal system, and they’re holding the cri- a group of rogue policemen are unlawfully holding 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.

Richard A. Cordray:

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

Stephen G. Breyer:

mhm…

Richard A. Cordray:

that…

person That that person…

Richard A. Cordray:

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

We…

Anthony M. Kennedy:

Suppose the Government imprisons the key witness in my suit in order to deprive me of the ability to w- win the suit.

Richard A. Cordray:

Are we talking about a criminal case, a criminal proceeding?

Either…

Richard A. Cordray:

it would matter if it were a criminal proceeding because there are special fair trial guarantees that the Constitution imposes such as Brady versus Maryland and the like in a an ongoing criminal proceeding.

Sandra Day O’Connor:

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

Richard A. Cordray:

At any time.

citizens…

Ruth Bader Ginsburg:

go back to your answer about this being like a sting operation? Those are designed to uncover crimes,

Richard A. Cordray:

mhm…

Ruth Bader Ginsburg:

and the object of the sting is a suspect.

Richard A. Cordray:

That that’s true, nor do we contend otherwise.

But a constitutional line…

Ruth Bader Ginsburg:

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.

Richard A. Cordray:

I I I don’t believe that’s correct, Your Honor, because a constitutional line can’t be founded there.

individuals…

Richard A. Cordray:

Sure.

be on a list…

Ruth Bader Ginsburg:

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

Richard A. Cordray:

W- We don’t think a constitutional line could be could be founded there and maintained.

Antonin Scalia:

Mr. Cordray, one of your one of your arguments here is essentially a lack of standing argument that the- that there’s no remediable harm that’s been suffered.

Richard A. Cordray:

A delay in what constitute harm?

Antonin Scalia:

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

Richard A. Cordray:

Whu- Again, I don’t think that that founds that that meets the standing requirements.

Antonin Scalia:

Yes, I am not talking about I am not talking about that.

Hasn’t that…

Antonin Scalia:

been at least delayed?

You say she can still get it.

Antonin Scalia:

But the answer to that is, yes, well, you know but but meanwhile, she hasn’t gotten it.

Richard A. Cordray:

It It may have been delayed.

and the like.

Ruth Bader Ginsburg:

that are now pending against the individuals or or the the United States has substituted itself?

Richard A. Cordray:

The United States has substituted itself under the Federal Tort Claims Act for the purposes of those claims.

Ruth Bader Ginsburg:

And what they’re in discovery right now?

Richard A. Cordray:

Yes, they are.

David H. Souter:

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 a foreign national? Would she have had standing if she had made that allegation?

Richard A. Cordray:

I I’m not certain, to be honest, Your Honor.

I…

David H. Souter:

have had?

Well, because…

Richard A. Cordray:

because there would be, again, a a traceability, redressability problem.

case…

David H. Souter:

her allegation is that they are torturing her husband because the United States is paying them to do it.

Richard A. Cordray:

It It would be close to the line.

[Inaudible]

David H. Souter:

been able to prove ultimately, had it gone to trial, that stopping the money would stop the action of the foreign government.

Richard A. Cordray:

I 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 tha was not significant enough to inf- in- influence clearly the third…

party’s contract…

David H. Souter:

there was no cause of action? It was it was the…

Richard A. Cordray:

Well, we think we think both.

David H. Souter:

okay…

Antonin Scalia:

Well yeah But well it seems to me you have to take her complaint the way the way Justice Souter wrote it.

Richard A. 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. The third party is the Guatemalan military…

who, in the end, have to change their conduct.

Antonin Scalia:

the injunction is against the payment which she says is the only reason the Guatemalan military are doing this.

Richard A. 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…

Richard A. Cordray:

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.

Well, wh- why- how…

Antonin Scalia:

can you be so cavalier? It’s close to the line.

Richard A. 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.

address…

David H. Souter:

just ask you another question before you leave the subject?

Richard A. Cordray:

Sure.

David H. Souter:

Assume, for the sake of argument, that there is standing in that case.

Richard A. Cordray:

Here for denial of…

access to…

Richard A. Cordray:

For denial of access to the courts?

David H. Souter:

Any cause of action.

Richard A. Cordray:

By Ms. Harbury for denial of access to the courts.

And That’s the only claim we have before this Court…

Richard A. Cordray:

it’s distant from any allegations of torture or mistreatment of someone.

based on the alleged…

David H. Souter:

go into court because I want to press this cause of action.

Richard A. Cordray:

We still allege there there are many steps on the standing argument in terms of what kind of claims she would have brought.

speak…

David H. Souter:

assume for the sake of argument that there is standing.

Richard A. 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…

David H. Souter:

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

Richard A. Cordray:

We don’t concede that.

William H. Rehnquist:

Very well, Mr. Cordray.

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

subst-

Sandra Day O’Connor:

though, is that the response was given in with the intent and in order to prevent a potential lawsuit.

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.

There’s…

Sandra Day O’Connor:

there should be an exhaustion requirement? You have to at least go with a FOIA request?

Well, Justice O’Connor, even if she had gone with well, she f- if she I wouldn’t put it as exhaustion.

that don’t have the Con-

Anthony M. Kennedy:

what do you do, Mr. Olson, with the s- circuit court cases which have held under nineteen eighty-three a violation of the r- right of access to courts when there’s a coverup of a of of a police murderer or s- s- something of that sort?

Well, precisely.

We believe that there is not.

the legislatures…

Antonin Scalia:

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.

Well, they…

Antonin Scalia:

could allege the only reason you said no comment was you didn’t want to…

give the information.

as a matter of fact, Justice Scalia, what they did say is that and this is on page twenty 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.

under the Inf-

John Paul Stevens:

could be a lie.

Pardon me?

John Paul Stevens:

I don’t see how no comment could be a lie.

No comment might not be a lie, Justice Stevens, but but at but this 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.

John Paul Stevens:

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

I I I hesitate ever to say anything of that sort.

custody.

William H. Rehnquist:

withholding could give rise to tolling…

of the statute of limitations.

situation, Justice Chief Justice Rehnquist, in which if something is delayed and I think Justice Scalia asked that question.

William H. Rehnquist:

Thank you, General Olson.

Jennifer K. Harbury:

Mr. Chief Justice, and may it please the Court: This case turns upon a very narrow question of law, specifically: may 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.

Ms. Harbury, may I ask you…

Anthony M. Kennedy:

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

The tort of…

Anthony M. Kennedy:

deceit if these were all private actors.

Jennifer K. Harbury:

No, Your Honor.

violated.

Anthony M. Kennedy:

to you that the only reason you you can s- must say that is because if you followed the usual course of the law and filed an action for deceit, you’d be barred under the Federal Tort Claims Act.

Jennifer K. 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.

Anthony M. Kennedy:

But in in in the context of a private person, under the law of torts, there is an action for deceit based on the f- facts that you’ve that you’ve discussed, is there not?

Jennifer K. Harbury:

Yes, there is.

Anthony M. Kennedy:

All right.

Jennifer K. Harbury:

I could not sue d- for deceit under the Federal Tort Claims Act.

Ruth Bader Ginsburg:

Ms. Harbury, on that central question, an issue kept coming up repeatedly in the D.C.

Jennifer K. Harbury:

All of the claims that I would have stated, Your Honor, would have been rooted in the concept that in the absence of extraordinary circumstances, as in Guatemala in nineteen ninety-two and ninety-three, 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 inj- emergency injunctive relief.

John Paul Stevens:

e- e- i- At bottom, in this case you’re claiming damages now.

Jennifer K. 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.

No,

John Paul Stevens:

but i- but what’s running through my mind is the there’s a a long chain of causation here, and if if one were persuaded and I’m not saying I am, but w- 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.

Jennifer K. Harbury:

If the question were there was no time…

to save my husband’s life?

Jennifer K. 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 six 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.

William H. Rehnquist:

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

Jennifer K. Harbury:

I am, Your Honor.

Anthony M. Kennedy:

Y- You began by telling us that this is a very narrow remedy that you seek.

Jennifer K. Harbury:

Yes, Your Honor.

which would be…

William H. Rehnquist:

you don’t mean v- in violation of any particular statute.

Jennifer K. Harbury:

In this case it would be a common law situ- common law tort, Your Honor, to commit intentional deceit where the person making the deceptive statements is fully aware and intends that a…

reasonable…

Jennifer K. Harbury:

person will rely on that statement to their detriment.

William H. Rehnquist:

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

Jennifer K. 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.

It…

Ruth Bader Ginsburg:

from the time you did you did get information from the Government ultimately when you brought your your Freedom of Information Act suit.

Jennifer K. Harbury:

I made the FOIA request in January of ninety-five.

that they weren’t…

Ruth Bader Ginsburg:

point is y- 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.

Jennifer K. Harbury:

Under those conditions, Your Honor, knowing or believing that my husband could still well be alive and su- being subjected to torture, I would have been in court immediately for a TRO for expedited handling of that case.

injunctive relief.

Ruth Bader Ginsburg:

cases that have been handled that way with a TRO? Or you’re saying that this is a unique situation?

Jennifer K. 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.

Stephen G. Breyer:

Well, would they? That’s I mean, obviously reading your story, one is immediately sympathetic, and it’s a very sad and difficult.

Jennifer K. Harbury:

If I may.

Stephen G. Breyer:

mhm…

Jennifer K. Harbury:

I’m not sure if I’m understanding your…

question, Your Honor.

Stephen G. Breyer:

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.

Jennifer K. Harbury:

We’re there are, of course there is, of course, here a case within a case.

for…

Stephen G. Breyer:

thinking of the case within the case…

because, after all,

Stephen G. Breyer:

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.

Jennifer K. Harbury:

Yes, Your Honor.

John Paul Stevens:

May I your answer raises this question in my mind.

Jennifer K. Harbury:

I would have asked in nineteen ninety-three for three steps to have been taken by the CIA through through an injunctive through an injunction by the courts.

[Inaudible]

John Paul Stevens:

the first one.

Jennifer K. 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.

John Paul Stevens:

Okay.

Jennifer K. Harbury:

Point two would have been these are your employees.

You are supposed to report those matters to Congress.

John Paul Stevens:

Which people? you- u- Shield the members of the CIA or the people who are doing the the interrogating?

Jennifer K. 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.

Johnson…

Stephen G. Breyer:

clearly true.

Jennifer K. Harbury:

Questions that I would leave to Congress and that are not raised in this case would be may C may a CIA agent purchase information from someone known to be an unsavory character.

Antonin Scalia:

Well an- 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.

[Inaudible]

Jennifer K. Harbury:

that carrying out torture was outside the scope of any statutory delegation of power to the CIA…

Right.

Jennifer K. Harbury:

violation of its own internal policies and regulations.

Antonin Scalia:

You’re relying on the statutes or lack of statutory authority…

to do it.

Jennifer K. Harbury:

violation of any any internal regulations they might have for extraordinary…

circumstances.

Ruth Bader Ginsburg:

it in violation of the Constitution because the D.C.

Jennifer K. 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.

Ruth Bader Ginsburg:

You make a a statement that the United States could have raised a national security defense, but it didn’t choose to do that.

Jennifer K. 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.

William H. Rehnquist:

Well, you’re not talking then about a Reynolds defense on the part of the Government wh- where you where there is no evidence to present.

Jennifer K. Harbury:

I’m saying I’m trying to conjecture what the petitioners might raise because they haven’t raised it yet.

and lies at the foundation…

William H. Rehnquist:

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

Jennifer K. 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.

William H. Rehnquist:

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

was it not?

Jennifer K. Harbury:

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.

and since…

William H. Rehnquist:

thank you, Ms. Harbury.

Thank you, Your Honor.

William H. Rehnquist:

Mr. Cordray, you have four minutes remaining.

Richard A. Cordray:

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Cordray.

The Marshal:

The honorable court is now adjourned until tomorrow at ten o’clock.