Jennifer K. Harbury v. Michael V. Hayden et al. / Jennifer K. Harbury on her own behalf and as administratrix of the Estate of Efrain Bamaca—Velasquez, Appellant v. Michael V. Hayden, Director, Central Intelligence Agency (CIA), et al., Appellees

Court	United States Court of Appeals for the District of Columbia Circuit, United States
Case number	06-5282
Decision title	Appeal from the United States District Court for the District of Columbia (No. 96cv00438)
Decision date	15 April 2008
Parties	Jennifer K. Harbury Michael V. Hayden (director of the CIA), et al.
Categories	Torture, War crimes
Keywords	Illegal detention; (sovereign) immunity; jurisdiction; murder; torture; war crimes
Links	Court of Appeals judgment
Other countries involved	Guatemala

Summary

In 2006, Jennifer Harbury, the wife of ex-rebel commander Efrain Bamaca-Velasquez who was killed in Guatemala in the early 1990s, brought a complaint against U.S. governmental officials. Harbury claimed that her husband was captured in 1992 by Guatemalan army officers who were affiliated with the Central Intelligence Agency (CIA). Harbury claimed that Bamaca was physically abused and tortured during his detention in order to extract information from him about the Guatemalan rebel forces.

Harbury’s tort claim was dismissed because the District Court found that it did not have authority to rule on it since the damage occurred in another state, namely in Guatemala. On appeal, the decision was upheld by the Court of Appeals. The Court ruled that the case involved political questions which are non-justiciable, and, in addition, that it lacked subject-matter jurisdiction to consider Harbury’s tort claim.

Procedural history

In March 1996, Jennifer Harbury, wife of former rebel commander Efrain Bamaca-Velasquez who was killed by members of the Guatemalan army in the early 1990s, brought an action against the Central Intelligence Agency (CIA), the Department of State, and the National Security Council, as well as numerous individuals working at these U.S. government agencies. Harbury claimed that her husband was capturedin 1992 by Guatemalan army officers who were connected with the CIA. Furthermore, Harbury claimed that Bamaca was physically abused and tortured during his detention in order to extract information from him about the Guatemalan rebel forces.

Among other claims, Harbury brought tort claims against individual CIA officials in their personal capacity for ‘causing and conspiring to cause Bamaca’s imprisonment, torture, and execution’, and ‘for negligent supervision resulting in his false imprisonment, assault and battery, and wrongful death’.

In March 2000, Attorney General Reno certified that the individual CIA officials had acted within the scope of their employment and therefore the U.S. government became the sole defendant in the case. Accordingly, this meant that the Federal Tort Claims Act (FTCA) applied to the case. Harbury challenged the certification.

On 1 August 2006, the District Court of Columbia dismissed Harbury’s tort claims by referring to the FTCA’s foreign-country exception under Rule 12(b)(1), which bars all claims based on an injury suffered in a foreign country. Harbury appealed and claimed that ‘acts of torture can never fall within the scope of employment’. Therefore, Attorney General Reno and the District Court allegedly erred in certifying the acts as falling within the employees’ scope of employment and that, therefore, the FTCA does not apply.

Legally relevant facts

When a tort suit is filed against a government employee, the Attorney General may certify that this employee acted within the scope of his or her employment at the time of the incident out of which the claim arose. Upon the Attorney General’s certification, the tort suit automatically converts to an FTCA action against the U.S. This means that the U.S. government becomes the party defendant, and the FCTA’s requirements, exceptions, and defences apply to the suit.

If an FTCA exception applies, the Attorney General’s certification has the effect of converting the state-law tort suit into an FTCA case over which the federal courts lack subject-matter jurisdiction. This means that the combination of the Attorney General’s certification and the FTCA’s exceptions can bar an individual’s case.

Core legal questions

Did the District Court err in dismissing Harbury’s claim on the basis of the exception in the FTCA for claims arising in a foreign country?

Specific legal rules and provisions

Federal Tort Claims Act, 1948 (Title 28 U.S. Code, Chapter 171):

Section 2680 - (k) - Exception for claims ‘arising in a foreign country’

Court's holding and analysis

The Court of Appeals upheld the decision of the District Court on two grounds. First, the Court held that the question at hand is non-justiciable on the basis of the political question doctrine (p.14). By pointing to recent cases, the Court noted, inter alia, that judicial restraint with regard to political decisions taken in the area of foreign affairs is appropriate (pp. 8-14).

Second, and most important, the Court held that the FTCA was applicable because acts of physical abuse can be regarded as falling within the scope of employment if they were foreseeable. As a result, the Court held that the claims against the individual CIA officials were ‘properly converted into claims against the Government under the FTCA’, and that Harbury’s tort claim fell within the FTCA’s exception as it was based on injuries suffered in Guatemala and not in the U.S. (p. 17).

Therefore, the Court ruled that it lacked subject-matter jurisdiction to consider Harbury’s tort claim because the FTCA applied and because the claim fell within the FCTA’s foreign-country exception (p. 18).

Further analysis

S. Jonas, ‘Dangerous Liaisons: The U. S. in Guatemala’, Foreign Policy, 1996, Vol. 103, pp. 144-160.

M. Hagler and F. Rivera, ‘Bámaca-Velásquez v. Guatemala: An Expansion of the Inter-American System’s Jurisprudence on Reparations’, Human Rights Brief, 2002, Vol. 9(3), pp. 1-5.

J. K. Harbury, Truth, Torture, and the American Way: The History and Consequences of U.S. Involvement in Torture, Boston, MA: Beacon Press 2005.

B. Stephens, J. Chomsky, J. Green, P. Hoffman, and M. Ratner, International Human Rights Litigation in U.S. Courts, 2nd edn., Leiden: Martinus Nijhoff Publishers 2008.

J. K. Harbury, ‘September 13, 2011 -- U.S. Torture Practices: The Guatemala Experience’, Western New England University - School of Law, 13 September 2011.

Instruments cited

Federal Tort Claims Act, 1948 (Title 28 U.S. Code, Chapter 171)

Related cases

Supreme Court (United States), Warren Christopher, former Secretary of State, et al., Petitioners, v. Jennifer K. Harbury, Case No. 01-394, Certiorari to the United States Court of Appeals for the District of Columbia Circuit, 20 June 2002.

Additional materials

C. Lane, ‘Court Will Review Right to Secret Data’, The Washington Post, 11 December 2001.

L. Greenhouse, ‘Widow Argues for Right to Sue Officials’, The New York Times, 19 March 2002.

D. G. Savage, ‘U.S. Deceit at Issue Before Supreme Court’, Los Angeles Times, 19 March 2002.

Social media links

H. Litman, ‘Forum: Hard cases and good law’, Post-Gazette, 16 June 2002.

K. Nimmo, ‘Abu Ghraib: Has the CIA Privatized Torture?’, Dissident Voice, 3 May 2004.

A. Clemens, ‘Rebel Fighter's Widow Loses Appeal Against U.S.’, Courthouse News Service, 17 April 2008.

J. Sawyer, ‘Torture’, The Journal - Western Oregon University, 5 June 2008.

‘Jennifer Harbury asks for help in Guatemala’, Central American Politics, 8 June 2010.

‘Jennifer Harbury releases evidence in Bamaca case - Jennifer Harbury divulga pruebas en caso Bamaca’, NISGUA, 25 February 2011.

K. Alford-Jones, ‘Guatemala: Six Months to Examine the Past and Define the Future’, Latin America Working Group, 30 March 2011.

R. Leleux, ‘Harbury’s Fight for Human Rights’, Observer, 23 April 2012.

G. Pickard, ‘CIA Fails to Protect Identity of Jennifer Harbury in Document Release’, Top Secret Writers, 13 February 2013.

P. A. Schey, ‘The CIA-Harbury Torture Case Heads to the Supreme Court’, Peter A. Schey personal website.