Harbury, Jennifer K. v. Deutch, John M.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 2000 Decided December 12, 2000

No. 99-5307

Jennifer K. Harbury,

Appellant

v.

John M. Deutch, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 96cv00438)

Jodie L. Kelley argued the cause for appellant. With her

on the briefs were Paul Hoffman, Beth Stephens and Jenni-

fer M. Green. Maureen F. Del Duca entered an appearance.

R. Craig Lawrence, Assistant U.S. Attorney, argued the

cause for appellees. With him on the brief was Wilma A.

Lewis, U.S. Attorney.

Before: Edwards, Chief Judge, Ginsburg and Tatel,

Circuit Judges.

Opinion for the Court filed by Circuit Judge Tatel.

Tatel, Circuit Judge: Jennifer Harbury claims that for

about one and a half years in the early 1990s, Central

Intelligence Agency officials participated in the torture and

murder of her husband, a Guatemalan citizen. She also

claims that while he was being tortured and for more than a

year and a half after his death, State Department and Nation-

al Security Council officials systematically concealed informa-

tion from her and misled her about her husband's fate.

Seeking, among other things, damages under Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971), she filed suit in federal court, claiming

deprivation of her husband's Fifth Amendment due process

rights, violation of her right to familial association, and inter-

ference with her right of "access to courts." The district

court dismissed these actions, finding that Harbury had failed

to allege the deprivation of any actual constitutional rights,

and that even if she had, defendants were entitled to qualified

immunity. We agree with the district court as

to Harbury's Fifth Amendment and familial association

claims. But because we find that she has stated a valid claim

for deprivation of her right of access to courts, and because

the NSC and State Department officials are not entitled to

qualified immunity on this claim. We reverse and remand for

further proceedings.

I

Since this appeal comes here on a motion to dismiss, we

accept the facts as alleged in the complaint. See Moore v.

Valder, 65 F.3d 189, 192 (D.C. Cir. 1995). Emphasizing that

defendants have not yet answered Harbury's charges and

that her claims have been subject to neither discovery nor

cross-examination, we set out the facts as she pleads them,

borrowing liberally from her complaint.

In 1991, Harbury, an American citizen, married Efrain

Bamaca-Velasquez, a Guatemalan citizen and high-ranking

member of the Guatemalan National Revolutionary Union, a

Guatemalan rebel organization. Several months after their

Texas wedding, Bamaca returned to Guatemala where, on or

around March 12, 1992, he disappeared. The Guatemalan

army reported that during a skirmish with its troops, Bamaca

committed suicide and was buried nearby. This was false.

In fact, Bamaca had been captured and secretly detained by

members of the Guatemalan military, including, Harbury

alleges, CIA "assets"--members of Guatemalan Security

Forces or Intelligence Services paid by the CIA to obtain

information about the Guatemalan resistance.

According to the complaint, over the next twelve to eigh-

teen months, Bamaca's captors psychologically abused and

physically tortured him. They chained and bound him naked

to a bed, beat and threatened him, and encased him in a full-

body cast to prevent escape. Eventually, probably some time

around September of 1993, they executed him.

About a year after Bamaca disappeared, in early 1993,

Harbury learned from a prisoner who had escaped from a

Guatemalan interrogation camp that her husband was alive

and being tortured. Harbury immediately contacted several

State Department officials, reported what she had learned,

and asked for information about her husband's status. Al-

though officials to whom she spoke promised to look into the

matter, they never provided her with any information.

In August 1993, Harbury obtained permission to open

Bamaca's grave. Discovering that the body there was not

his, she immediately informed Marilyn McAfee, the U.S.

Ambassador to Guatemala. Although the Ambassador told

Harbury that she would investigate the matter and report her

findings, she too never provided Harbury with any informa-

tion.

Over the next year, from October 1993 to October 1994,

Harbury met repeatedly with State Department officials.

Saying they were concerned about Bamaca's situation, these

officials reassured her they were seriously looking into the

matter and told her the Guatemalan Military had informed

them that it did not have (and never had) custody of Bamaca.

In October of 1994, the CBS news program 60 Minutes

reported that the U.S. Embassy in Guatemala had an intelli-

gence report confirming that Bamaca had been captured

alive. In response, the State Department publicly confirmed

Bamaca's capture, stating that he had been lightly but not

seriously wounded and held prisoner for some time. The

State Department also reported that it had no information

confirming that Bamaca was still alive.

In the wake of the 60 Minutes report and the State

Department's public statements, Harbury met with National

Security Advisor Anthony Lake who told her that the govern-

ment had "scraped the bottom of the barrel" for information

about her husband and that no further information existed.

Complaint p 83. He promised that the government would not

only continue searching for information, but also keep Har-

bury informed. Other State Department and NSC officials

likewise told her that they had no concrete information about

Bamaca's condition, but that they were continuing to assume

that he was still alive. Suspecting that State and NSC

officials were withholding information, Harbury filed a Free-

dom of Information Act request. Despite expedited process-

ing, she received no documents in the following months.

Finally, because of the "failure of the [State Department

and NSC] defendants to inform her of her husband's fate,"

Harbury announced that she would begin a hunger strike in

front of the White House on March 12, 1995, the third

anniversary of her husband's disappearance. Complaint p 87.

State Department and NSC officials then met with her again,

telling her this time that they believed Bamaca was dead

because so many years had passed without evidence that he

was alive. Unconvinced, Harbury began her hunger strike.

Twelve days into the strike, Congressman Robert Torricelli

announced publicly that years earlier, Bamaca had been killed

at the order of a paid CIA asset.

On her own behalf and as administratrix of Bamaca's

estate, Harbury brought suit in the U.S. District Court here

against various named and unnamed officials of the CIA, the

State Department, and the NSC. She based her claims on

two broad factual allegations. First, she alleged that CIA

officials at all levels "knowingly engaged in, directed, collabo-

rated and conspired in, and otherwise contributed to [her

husband's] secret imprisonment, torture and extrajudicial

murder." Complaint p 49. Many of the Guatemalan military

officers who tortured and killed Bamaca, she alleged, were

paid CIA agents. Two had been trained in torture and

interrogation techniques at the School of the Americas, a U.S.

Army facility located in Georgia. According to Harbury, CIA

officials who did not participate directly in Bamaca's torture

not only paid Agency assets for information about Bamaca's

rebel organization, knowing that the information had been

extracted through torture, but also requested further intelli-

gence, knowing it too would be obtained in the same manner.

And as a general matter, Harbury alleged that CIA officials

knew of other gross human rights violations in Guatemalan

interrogation centers--including beatings with cement blocks,

burials of prisoners alive, and electrical shocks to the testicles

and legs--and that CIA officials up the chain of command,

from the operations and intelligence divisions to the Director

himself, expressly authorized their assets to use torture to

obtain information from Guatemalan rebel leaders.

Second, Harbury alleged that while Bamaca was still alive,

State Department and NSC officials, including Ambassador

McAfee and NSA Lake, made "fraudulent statements and

intentional omissions" that prevented her from "effectively

seeking adequate legal redress, petitioning the appropriate

government authorities, and seeking to publicize her hus-

band's true plight." Complaint p 98. According to the com-

plaint, when Harbury first contacted State Department offi-

cials to follow up on what she had learned from the escaped

prisoner, they actually knew that her husband was alive and

being tortured. They knew this, she alleged, because a week

after Bamaca's capture, the CIA informed both State Depart-

ment and White House officials that Guatemalan military

forces would "probably fabricate his combat death in order to

maximize their ability to extract information from [him]." Id.

at WW 35, 56-57. Yet State Department officials, including

Ambassador McAfee, revealed none of this information to

Harbury. Instead, they repeatedly reassured her that al-

though they were investigating Bamaca's fate, they had dis-

covered nothing. According to Harbury, internal memoranda

distributed and received by both State Department and NSC

officials demonstrate their "intent to keep the involvement of

the U.S. Government in the detention, torture, and execution

of Mr. Bamaca out of the public eye." Id. at p 69. Those

officials, she alleged, "intentionally misled [Harbury], through

their deceptive statements and omissions, into believing that

concrete information about her husband's fate did not exist

because they did not want to threaten their ability to obtain

information from Mr. Bamaca," and because they feared that

if they disclosed information to Harbury or anyone else, "they

could then be subject to public embarrassment, censure,

and/or legal liability." Id. at WW 67-69.

After Bamaca's death, the pattern of deception and non-

disclosure allegedly continued. Although the Defense Intelli-

gence Agency reported in September 1993 to the State De-

partment, the White House, and the U.S. Embassy in Gua-

temala that Bamaca had been killed, all officials she met with

during the following months, including NSA Lake, continued

to lead her to believe not only that her husband was alive, but

also that they were doing all they could to learn more about

him. "[A]t no time," she alleged, did these officials inform

her that "they were unwilling to investigate her case or to

give her information about her husband's situation. Instead,

a decision was made to neither share the information with

her, nor inform her of the existence of such information." Id.

at p 77.

Based on these factual allegations, Harbury pleaded 28

specific causes of action, including (1) claims against defen-

dants in their official capacities seeking a declaratory judg-

ment that their conduct was unconstitutional, as well as an

injunction preventing the CIA from extracting information

through torture and preventing the State Department and

NSC from concealing information about CIA torture victims;

(2) Bivens actions against defendants in their individual ca-

pacities seeking damages for their alleged constitutional viola-

tions; (3) common law tort claims against individual defen-

dants, including claims for intentional infliction of emotional

distress and wrongful death; and (4) claims against individual

defendants for violations of international law. Only Har-

bury's Bivens claims are directly at issue in this appeal.

These claims rest on three alleged constitutional violations:

(1) by contributing to Bamaca's torture, CIA defendants

violated his Fifth Amendment substantive due process rights;

(2) by participating in and concealing information about Ba-

maca's torture and murder, all defendants violated Harbury's

constitutional right to familial association; and (3) by conceal-

ing information and misleading her about her husband's fate,

NSC and State Department defendants violated her right of

access to courts.

The district court dismissed Harbury's Bivens claims, find-

ing with respect to each not only that she failed to allege a

deprivation of an actual constitutional right, but also that

even if she had, defendants were entitled to qualified immuni-

ty because the scope of the alleged right was not clearly

established. Pursuant to Federal Rule of Civil Procedure

54(b), the district court certified its dismissal of Harbury's

Bivens claims as final. We review de novo a dismissal for

failure to state a claim upon which relief can be granted,

accepting the facts as alleged in the complaint. See Moore,

65 F.3d at 192. "[A] complaint should not be dismissed for

failure to state a claim unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief." Conley v. Gibson, 355

U.S. 41, 45-46 (1957).

II

Harlow v. Fitzgerald holds that "government officials per-

forming discretionary functions, generally are shielded from

liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known." 457 U.S. 800,

818 (1982). Following Harlow and abiding by the familiar

practice of avoiding unnecessary adjudication of constitutional

questions, many courts faced with claims resting on constitu-

tional rights of uncertain scope have dismissed cases based on

qualified immunity alone. See, e.g., Childress v. Small Bus.

Admin., 825 F.2d 1550, 1552 (11th Cir. 1987). In other

words, "assum[ing], arguendo, without deciding" that a consti-

tutional right in fact exists, courts have asked whether the

right is clearly established. See id.

The Supreme Court cast doubt on this approach in Wilson

v. Layne: "A court evaluating a claim of qualified immunity

must first determine whether the plaintiff has alleged the

deprivation of an actual constitutional right at all, and if so,

proceed to determine whether that right was clearly estab-

lished at the time of the alleged violation." 526 U.S. 603, 609

(1999) (internal quotation omitted). As the Court had previ-

ously recognized, "if the policy of avoidance [of unnecessary

adjudication of constitutional issues] were always followed in

favor of ruling on qualified immunity whenever there was no

clearly settled constitutional rule of primary conduct, stan-

dards of official conduct would tend to remain uncertain, to

the detriment both of officials and individuals." County of

Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).

Notwithstanding Wilson, the Government urges us to dis-

pose of this case based on qualified immunity without reach-

ing the merits of Harbury's underlying claims. In support of

this argument, it cites our recent decision in Kalka v. Hawk,

215 F.3d 90 (D.C. Cir. 2000), where the district court had

dismissed a complaint brought by a federal prisoner claiming

that the Bureau of Prisons had denied him his First Amend-

ment right to practice secular humanism. Without reaching

the merits of Kalka's constitutional claim, we affirmed based

on qualified immunity alone. The Supreme Court's concern

that the scope of the underlying constitutional right would

never be adjudicated, we held, had "little force when injunc-

tive relief against the official's actions is potentially available."

Id. at 97. Although Kalka's own claim for injunctive relief

had become moot (he had been released from prison during

his appeal), "there is still the potential that other prisoners

who practice humanism may bring such suits and settle the

question whether humanism ... is a religion within the First

Amendment. This possibility of injunctive actions satisfies

the Court's desire for 'clarity in the legal standards for official

conduct.' " Id. (quoting Wilson, 526 U.S. at 609).

In certain respects, this case does resemble Kalka. Like

Kalka, Harbury alleges that the challenged government con-

duct is ongoing: in a part of her suit not before us, Harbury

claims that the government still extracts information through

torture and covers up information about the victims. Also

like Kalka, Harbury herself is no longer subject to the

challenged conduct: Bamaca's torture ended with his death,

and sufficient facts about U.S. involvement in his treatment

have come to light to enable Harbury to seek legal relief.

At this point, however, the similarities with Kalka end.

Harbury has been able to challenge the conduct of the

government only because its cover-up failed. If the cover-up

had succeeded, Harbury would have learned neither of CIA

involvement in her husband's torture nor of NSC and State

Department attempts to keep that involvement secret. Thus,

unlike in Kalka, where future secular humanist prisoners

could seek injunctive relief for denial of First Amendment

rights (so long as they remained incarcerated), the very

nature of the conduct Harbury challenges renders unlikely

the possibility of injunctive relief: another spouse in Har-

bury's position could challenge her husband's torture only if

she learned of the torture before it ended. In essence, the

Government asks us to defer adjudication of the constitution-

ality of its alleged conduct until it again fails in a cover-up,

this time before the victim dies. Nothing in Kalka requires

such a preposterous result.

Applying Wilson, then, we must address the validity of

Harbury's constitutional allegations before reaching the ques-

tion of qualified immunity. It is to that task that we now

turn.

Fifth Amendment

Government conduct that "shocks the conscience" violates

the Fifth Amendment guarantee against deprivation of "life,

liberty, or property, without due process of law." See Rochin

v. California, 342 U.S. 165, 172-73 (1952). No one doubts

that under Supreme Court precedent, interrogation by tor-

ture like that alleged by Harbury shocks the conscience. See

id. at 172 (interrogation methods were "too close to the rack

and the screw to permit of constitutional differentiation");

Palko v. Connecticut, 302 U.S. 319, 326 (1937), overruled on

other grounds by Benton v. Maryland, 395 U.S. 784 (1969)

(noting that the Due Process Clause must at least "give

protection against torture, physical or mental"). The difficult

question, and the one presented by this case, is whether the

Fifth Amendment prohibits torture of non-resident foreign

nationals living abroad. Before reaching that question, how-

ever, we must consider Harbury's claim that because many of

the CIA, NSC, and State Department officials who she says

conspired to torture her husband did so within the United

States, this case does not require extra-territorial application

of the Fifth Amendment.

In support of this argument, Harbury cites Cardenas v.

Smith, 733 F.2d 909 (D.C. Cir. 1984), which involved a

Colombian citizen whose Swiss bank accounts were seized by

Swiss authorities at the request of the U.S. Department of

Justice. Despite the fact that the seized accounts were

located in Switzerland, we suggested in dicta that the plaintiff

might be able to establish injury within the U.S. by showing

that her accounts were seized as a result of an unlawful

conspiracy within the Justice Department. Id. at 913. Har-

bury also cites Lamont v. Woods, 948 F.2d 825 (2d Cir. 1991),

which involved allegations that the U.S. Government violated

the Establishment Clause of the First Amendment by giving

grants to foreign religious schools. Even though the money

was delivered and spent abroad, the court held that the

alleged violation of the Establishment Clause was domestic

because it occurred when the federal agency allocated the

funds. Id. at 834.

Harbury fails to notice the relevance of United States v.

Verdugo-Urquidez, 494 U.S. 259 (1990), a case she cites later

in her brief, where the Supreme Court held that a warrant-

less search and seizure of an alien's property in Mexico did

not violate the Fourth Amendment. The search was con-

ceived, planned, and ordered in the United States, carried out

in part by agents of the United States Drug Enforcement

Agency, and conducted for the express purpose of obtaining

evidence for use in a United States trial. See id. at 262-63.

Still, the Court treated the alleged violation as having "oc-

curred solely in Mexico." Id. at 264. In reaching this

conclusion, the Court never mentioned that the search was

both planned and ordered from within the United States.

Instead, it focused on the location of the primary constitution-

ally significant conduct at issue: the search and seizure itself.

We think Verdugo controls this case. Like the warrantless

search there, the primary constitutionally relevant conduct at

issue here--Bamaca's torture--occurred outside the United

States. The same was not true in Lamont. And Cardenas,

on which Harbury also relies, was decided prior to Verdugo.

We thus turn to Harbury's primary claim--that Bamaca was

entitled to Fifth Amendment protection even though the

torture occurred in Guatamala.

Acknowledging that aliens are entitled to fewer constitu-

tional protections than citizens, see Matthew v. Diaz, 426 U.S.

67, 77-79 (1976), and that constitutional protections (even for

citizens) diminish outside the U.S., see Verdugo, 494 U.S. at

270, Harbury argues that the Constitution's most fundamen-

tal protections, like the Fifth Amendment prohibition of tor-

ture, apply even to foreign nationals located abroad. In

support of this claim, she cites three lines of cases holding

that non-citizens outside the United States enjoy constitution-

al rights. First, courts have held that inhabitants of non-

state territories controlled by the U.S.--such as unincorporat-

ed territories or occupation zones after war--are entitled to

certain "fundamental" constitutional rights. See Examining

Bd. of Eng'rs., Architects & Surveyors v. Otero, 426 U.S. 572,

599 n.30 (1976); Balzac v. Porto Rico, 258 U.S. 298, 312-13

(1922); United States v. Tiede, 86 F.R.D. 227, 242-44 (U.S.

Ct. Berlin 1979). Courts have also held that excludable

aliens--aliens apprehended outside the U.S. while attempting

to cross the border and held within the U.S. pending trial--

likewise enjoy basic due process rights against gross physical

abuse. See Amanullah v. Nelson, 811 F.2d 1, 9 (1st Cir.

1987); Lynch v. Cannatella, 810 F.2d 1363, 1374 (5th Cir.

1987). Finally, courts have suggested that non-resident

aliens abducted by the government for trial within the United

States have basic due process rights. See United States v.

Toscanino, 500 F.2d 267 (2d Cir. 1974); see also United

States v. Lambros, 65 F.3d 698, 701 (8th Cir. 1995).

Although these cases demonstrate that aliens abroad may

be entitled to certain constitutional protections against mis-

treatment by the U.S. Government, we do not agree that they

establish that Bamaca's torture ran afoul of the Fifth Amend-

ment. To begin with, in adjudicating the application of

constitutional rights to aliens, the Supreme Court has

looked--among other factors--to whether the aliens have

"come within the territory of the United States and developed

substantial connections with this country." See Verdugo, 494

U.S. at 271. In all three sets of cases Harbury cites, the

aliens had a substantially greater connection to the U.S. than

Bamaca. The excludable alien cases involved persons physi-

cally present in the U.S. The occupation zone cases involved

foreign nationals under de facto U.S. political control. And

although the alien in Toscanino had been tortured in a

foreign country, he was abducted to and tried in the United

States. In fact, the Second Circuit, treating the torture and

abduction as part of the pre-trial process, focused on the fact

that allowing the government to seize and torture defendants

before bringing them to trial would threaten the integrity of

the United States judicial process. See Toscanino, 500 F.2d

at 275-79. In contrast to the aliens involved in these cases,

Bamaca was not physically present in the United States, not

tortured in a country in which the United States exercised de

facto political control, and not abducted for trial in a United

States court.

Even if the cases Harbury cites were not so easily distin-

guishable, this issue would also be controlled by Verdugo.

Though that case involved extraterritorial application of the

Fourth Amendment, the Court also dealt with the extraterri-

torial application of the Fifth:

Indeed, we have rejected the claim that aliens are enti-

tled to Fifth Amendment rights outside the sovereign

territory of the United States. In Johnson v. Eisentrag-

er ... the Court held that enemy aliens arrested in

China and imprisoned in Germany after World War II

could not obtain writs of habeas corpus in our federal

courts on the ground that their convictions for war

crimes had violated the Fifth Amendment.... The Ei-

sentrager opinion acknowledged that in some cases con-

stitutional provisions extend beyond the citizenry; "the

alien ... has been accorded a generous and ascending

scale of rights as he increases his identity with our

society." But our rejection of the extraterritorial appli-

cation of the Fifth Amendment was emphatic:

"Such extraterritorial application of organic law would

have been so significant an innovation in the practice

of governments that, if intended or apprehended, it

could scarcely have failed to excite contemporary com-

ment. Not one word can be cited. No decision of this

Court supports such a view.... None of the learned

commentators on our Constitution has even hinted at

it. The practice of every modern government is op-

posed to it."

Id. at 269 (quoting Johnson v. Eisentrager, 339 U.S. 763, 770,

784-85 (1950)). To be sure, as Harbury points out, this

language is dicta. But it is firm and considered dicta that

binds this court. See, e.g., United States v. Oakar, 111 F.3d

146, 153 (D.C. Cir. 1997) ("[c]arefully considered language of

the Supreme Court, even if technically dictum, generally must

be treated as authoritative") (internal quotation omitted).

Harbury also correctly observes that Eisentrager--the case

relied on by Verdugo--concerned rights of enemy aliens

during wartime. But the Supreme Court's extended and

approving citation of Eisentrager suggests that its conclu-

sions regarding extraterritorial application of the Fifth

Amendment are not so limited. For these reasons, we agree

with the district court that Harbury failed to allege a valid

claim for deprivation of her husband's Fifth Amendment due

process rights.

Familial Association

The Constitution protects familial relationships from un-

warranted government interference in at least two circum-

stances. First, parents have a right to maintain their rela-

tionship with their children. See, e.g., Santosky v. Kramer,

455 U.S. 745 (1982) (holding that a state must support allega-

tions of parental neglect with at least clear and convincing

evidence before terminating the rights of parents in their

natural child); Stanley v. Illinois, 405 U.S. 645 (1972) (strik-

ing down a law automatically making children of unwed

fathers wards of the State upon the death of their mother).

Second, family members have a constitutional right to make

certain private decisions regarding family affairs, such as

whether to procreate, see Roe v. Wade, 410 U.S. 113 (1972)

(abortion), Griswold v. Connecticut, 381 U.S. 479 (1965) (con-

traception), or whether to send children to public school, see

Pierce v. Soc'y of Sisters, 268 U.S. 510 (1925). Harbury's

claims rest on both categories of rights.

Relying on the first category, Harbury argues that by

murdering Bamaca, CIA defendants unconstitutionally de-

prived her of her right to continuing association with her

husband. The district court dismissed this claim because

Harbury failed to allege that the defendants murdered Bama-

ca for the purpose of ending her marriage. Urging us to

reverse, Harbury argues that the district court's purpose

requirement conflicts with Supreme Court cases finding due

process violations in circumstances involving far less serious

interference with familial relationships--such as laws requir-

ing children to attend public schools--and no direct purpose-

ful interference with the family. To be sure, these cases

involve the second category of rights--the right to make

private familial decisions--but Harbury argues that there is

no principled reason to impose a purpose requirement in the

first category and not the second. Harbury also argues that

since officials will likely never kill anyone for the purpose of

terminating a marriage, a purpose requirement effectively

eviscerates familial association claims based on wrongful kill-

ings.

Our sister circuits have split on whether familial association

claims require allegations of purposeful interference. Some

circuits have held that the Due Process Clause only protects

against direct, intentional interference with familial relation-

ships. In Ortiz v. Burgos, for example, the First Circuit held

that the stepfather and siblings of a prisoner beaten to death

by guards had no independent cause of action for loss of

familial association because the beating was not specifically

intended to deprive them of their association with the dece-

dent. See 807 F.2d 6, 8 (1st Cir. 1986); see also Shaw v.

Stroud, 13 F.3d 791, 804-05 (4th Cir. 1994); Harpole v.

Arkansas Dep't of Human Servs., 820 F.2d 923, 927-28 (8th

Cir. 1987); Trujillo v. Bd. of County Comm'rs., 768 F.2d

1186, 1189-90 (10th Cir. 1985). But other circuits have held

in cases of wrongful killings of children that the surviving

parent had an independent due process claim, even though

the killing was not specifically intended to disrupt the parent-

child relationship. In one such case, Bell v. City of Milwau-

kee, the Seventh Circuit held that the father (but not the

siblings) of a decedent wrongfully killed by the police had a

constitutional claim for loss of association with his son even

though the killing was motivated by racism, not intent to

deprive him of his son's companionship. See 746 F.2d 1205,

1242-48 (7th Cir. 1984); see also Smith v. City of Fontana,

818 F.2d 1411, 1417-20 (9th Cir. 1987); Estate of Bailey v.

County of York, 768 F.2d 503, 509 n.7 (3d Cir. 1985).

In considering Harbury's claim, we are mindful of the

caution we must exercise in expanding the liberty interests

protected by substantive due process. "As a general matter,"

the Supreme Court said in Collins v. Harker Heights, "[we

have] always been reluctant to expand the concept of substan-

tive due process because guideposts for responsible decision-

making in this unchartered area are scarce and open-ended.

The doctrine of judicial self-restraint requires us to exercise

the utmost care whenever we are asked to break new ground

in this field." 503 U.S. 115, 125 (1992) (citation omitted).

Bearing this caution in mind, as well as the obvious propo-

sition that it operates with even greater force on the lower

federal courts, we think that two features of Supreme Court

precedent bar us from accepting Harbury's claim. First,

although the Court has never directly addressed the issue in

the context of a wrongful killing, it has found a constitutional

right to continuing association with family members only in

cases involving direct, purposeful interference with familial

relationships. See, e.g., Stanley, 405 U.S. 645; Santosky, 455

U.S. 745. As the First Circuit observed, the Court has

"never held that governmental action that affects the parental

relationship only incidentally ... is susceptible to challenge

for a violation of due process." Ortiz, 807 F.2d at 8. Equally

significant, the Supreme Court has recognized a right to

continuing familial association only in cases involving parent-

child relationships. In doing so, the Court has emphasized

the importance of the parent-child bond. See, e.g., Stanley,

405 U.S. at 651 (noting that the Court had previously deemed

the rights to conceive and raise one's children as "essential,"

"basic," and "far more precious ... than property rights");

Santosky, 455 U.S. at 753 (referring to the "fundamental

liberty interest of natural parents in the care, custody, and

management of their child," and to parents' "vital interest in

preventing the irretrievable destruction of their family life").

Even circuit court cases that have expanded the right to

include indirect deprivations of association involve only par-

ent-child relationships, see Bell, 746 F.2d at 1242-48; Smith,

818 F.2d at 1417-20; Estate of Bailey, 768 F.2d at 509 n.7.

And in one such case, Bell, the court expressly declined to

broaden the right to include the decedent's surviving siblings.

See 746 F.2d at 1245-48.

Harbury's claim thus lies beyond Supreme Court precedent

in not one but two respects: it concerns neither a parent-child

relationship nor purposeful interference with a familial rela-

tionship. On the facts of this case, therefore, we need not

decide whether the constitutional right to continuing familial

association requires allegations of purpose to interfere with

the right, nor whether the constitutional right to familial

association extends to the marriage relationship. We hold

only that in view of Supreme Court precedent and in light of

the Court's admonition in Collins, we cannot extend a consti-

tutional right to familial association to cases where, as here,

the government has indirectly interfered with a spousal rela-

tionship. The First Circuit, declining to extend due process

protection to incidental deprivations of familial association,

used language we think particularly compelling:

Although we recognize and deplore the egregious nature

of the alleged government action in this case, we hesitate,

in the rather novel context of this case, to erect a new

substantive right upon the rare and relatively uncharted

terrain of substantive due process when case law, logic

and equity do not command us to do so. It does not

necessarily follow that the incidental deprivation of even

a natural parent's parental rights is actionable simply

because the relevant deprivation of life is shocking. In

addition, a conclusion that governmentally caused termi-

nation of, or encroachment on, the parental interest in

the continued relationship with a child always is action-

able would constitutionalize adjudication in a myriad of

situations we think inappropriate for due process scruti-

ny, including the alleged wrongful prosecution and incar-

ceration of a child or the alleged wrongful discharge of a

child from a state job, forcing the child to seek employ-

ment in another part of the country. Moreover, the

problem of giving definition and limits to a liberty inter-

est in this vast area seems not only exceedingly difficult

but to a considerable extent duplicative of the wide-

spread existence of state causes of action, as in this case,

which provide some compensation to grieving relatives.

Ortiz, 807 F.2d at 9. Emphasizing that it sought "neither to

minimize the loss of a family member nor to denigrate the

fundamental liberty interest in matters of family life that has

long been a part of our constitutional fabric," the First Circuit

concluded: "even an interest of great importance may not

always be entitled to constitutional protection.... Our con-

clusion is simply that, in light of the limited nature of the

Supreme Court precedent in this area, it would be inappropri-

ate to extend recognition of an individual's liberty interest in

his or her family or parental relationship to the facts of this

case." Id. at 9-10 (citations omitted). For essentially similar

reasons, we are doubly reluctant to make the even broader

expansion of the right to familial association sought by Har-

bury.

Harbury's second familial association claim, this one

brought against State Department and NSC defendants,

charges that their failure to disclose information about Bama-

ca violated her right to make intimate personal decisions

about her marriage. To support this claim, she cites Planned

Parenthood v. Casey, where the Supreme Court stated that

decisions within the "private realm of family life" are among

"the most intimate and personal choices a person may make

in a lifetime," and are "central to the liberty protected by the

Fourteenth Amendment." 505 U.S. 833, 851 (1992). Relying

on this broad language, Harbury asserts that she had a due

process right to decide how best to save her husband from

torture and to retrieve his remains and bury him after he

died. Defendants, she urges, prevented her from making

these decisions by concealing information about his torture

and death.

We agree with the district court that Harbury's claim lacks

foundation in constitutional jurisprudence. The broad gener-

al principle Harbury cites appears never to have been applied

to a situation even remotely like hers. Nor does she explain

why it should be. We therefore decline to extend the right in

the manner she proposes.

III

This brings us to our only area of disagreement with the

district court: Harbury's access to courts claim. "[T]he right

to sue and defend in the courts," the Supreme Court long ago

said, "is the alternative of force. In an organized society it is

the right conservative of all other rights, and lies at the

foundation of orderly government. It is one of the highest

and most essential privileges of citizenship." Chambers v.

Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907). The right

not only protects the ability to get into court, see, e.g., Ex

parte Hull, 312 U.S. 546 (1941) (striking down a prison

regulation prohibiting prisoners from filing petitions for habe-

as corpus unless they are found "properly drawn" by a state

official), but also ensures that such access be "adequate,

effective, and meaningful." Bounds v. Smith, 430 U.S. 817,

822 (1977).

Applying this standard, several of our sister circuits have

found that government cover-ups can infringe the right of

access to courts. In Bell, 746 F.2d 1205, for example, city

police officers planted evidence and contrived a false story to

make their killing of an unarmed man whom they shot in the

back seem an act of self-defense. The victim's father filed a

wrongful death action against both the officer and the city,

but the case settled for an amount so small that the father

never cashed the check. When the true facts of the killing

emerged twenty years later, the victim's survivors sued the

police, alleging that the conspiracy to conceal the facts had

interfered with their ability to seek legal redress. Sustaining

a jury verdict for plaintiffs, the Seventh Circuit found that

"[t]hough [Bell's father] filed a wrongful death claim in state

court soon after the killing, the cover-up and resistance of the

investigating police officers rendered hollow his right to seek

redress...." Id. at 1261.

The Fifth Circuit reached a similar result in Ryland v.

Shapiro, 708 F.2d 967 (5th Cir. 1983), recognizing a potential

denial of the right of access when an alleged cover-up delayed

release of the facts of a murder for eleven months. Noting

that "[d]elay haunts the administration of justice," the court

held that the victim's parents could state a denial of access

claim since "[t]he defendants' actions could have prejudiced

[their] chances of recovery in state court because the result-

ing delay would cause stale evidence and the fading of

material facts in the minds of potential witnesses." Id. at

974, 975; see also Swekel v. City of River Rouge, 119 F.3d

1259, 1263-64 (6th Cir. 1997) (plaintiff must "[show] that the

defendants' actions foreclosed her from filing suit in state

court or rendered ineffective any state court remedy she

previously may have had"); Delew v. Wagner, 143 F.3d 1219,

1222 (9th Cir. 1998) (same); Vasquez v. Hernandez, 60 F.3d

325, 329 (7th Cir. 1995) (plaintiffs must allege either that they

have "been prevented from pursuing a tort action in state

court or that the value of such an action has been reduced by

the cover-up"); cf. Barrett v. United States, 798 F.2d 565, 575

(2d Cir. 1986) ("Unconstitutional deprivation of a cause of

action occurs when government officials thwart vindication of

a claim by violating basic principles that enable civil claimants

to assert their rights effectively.").

Citing Bell, Ryland, and other similar cases, Harbury

argues that NSC and State Department defendants, by giving

her "false and deceptive information related to her husband

and otherwise concealing whether he was alive, ... deprived

Plaintiff of her right ... to adequate, effective, and meaning-

ful access to the courts." See Complaint p 174. The Govern-

ment responds that Harbury "failed to identify a ... constitu-

tional right to have federal officials report on what they knew

about a foreign revolutionary leader captured by a foreign

government on the field of battle." See Appellee's Br. at 14.

According to the Government, this failure distinguishes Har-

bury's case from Bell and other cases where police officers

charged with investigating a crime destroy, conceal, or manu-

facture evidence in violation of statutory duties.

We think the Government misreads Harbury's complaint.

She never alleges that defendants breached a duty to disclose

information to her. Rather, she alleges that they affirmative-

ly deceived her into believing that they were actively seeking

information about her husband. Instead of saying (as they

could have) that they were unable to discuss Bamaca's situa-

tion, they sought to lull her into believing that they were

working on her behalf, intending to prevent her from suspect-

ing that the U.S. Government was actually involved in Bama-

ca's torture. One of their express objectives, Harbury alleg-

es, was to prevent her from suing them. Viewed this way,

and regardless of whether Defense and NSC officials had an

affirmative duty to provide information to Harbury in the

first place, the complaint states a clear case of denial of

access to courts. Cf. Barrett, 798 F.2d 565 at 575 (though

defendant government officials "were not under any duty to

volunteer to the estate information that would alert it to the

existence of a claim against the federal government and

certain of its officials ... government officials were not free

to arbitrarily interfere with the estate's vindication of its

claims").

The district court, though agreeing that Harbury might be

able to base an access to courts claim on the alleged cover-up,

nevertheless dismissed her claim because she had not yet

finished prosecuting the tort claims also pleaded in her

complaint. In reaching this conclusion, the district court

relied on Swekel, where the Sixth Circuit rejected an access

to courts claim because the plaintiff had not yet filed suit in

state court: "Before filing an 'access to courts' claim, a

plaintiff must make some attempt to gain access to the courts;

otherwise, how is this court to assess whether such access

was in fact 'effective' and 'meaningful'?" 119 F.3d at 1264.

The district court also cited Delew, 143 F.3d 1219, where the

Ninth Circuit dismissed an access to courts claim even though

the plaintiff, unlike the plaintiff in Swekel, had actually filed a

wrongful death action based on the same set of facts. Stating

that "because the [plaintiffs'] wrongful death action remains

pending in state court, it is impossible to determine" whether

"the defendants' cover-up violated [the plaintiffs'] right of

access to the courts by rendering 'any available state court

remedy ineffective,' " the court gave plaintiffs leave to re-file

"if in fact the defendants' alleged cover-up actually rendered

all state court remedies ineffective." Id. at 1222-23.

In some ways this case does resemble Swekel and Delew.

Like plaintiffs in those cases, Harbury alleges that due to the

cover-up, "key witnesses ... may now be dead or missing ...

crucial evidence may have been destroyed, and ... memories

may have faded." Harbury v. Deutch, No.

96-00438 (D.D.C. filed Mar. 23, 1999) at 18. If her complaint

rested solely on such allegations, we might agree with the

district court. But Harbury's complaint goes further: not

limited to wrongful death and intentional infliction of emotion-

al injury, it alleges that but for the cover-up, she might have

been able to save her husband's life. "As a result of the

fraudulent statements and intentional omissions made by the

Department of State and the [NSC] defendants ... Plaintiff

was unable to take appropriate actions to save her husband's

life. Specifically, Plaintiff was foreclosed from effectively

seeking adequate legal redress, petitioning the appropriate

government authorities, and seeking to publicize her hus-

band's true plight through the media." Complaint p 98. Am-

plifying this point at oral argument, Harbury's counsel ex-

plained that if defendants had disclosed the information they

possessed about Bamaca, Harbury could have sought an

emergency injunction based on an underlying tort claim for

intentional infliction of emotional distress. Even if the NSC

and State Department officials had simply said they could not

discuss Bamaca's situation, counsel explained, Harbury would

have filed her FOIA requests immediately, thus perhaps

obtaining the information necessary to seek an injunction in

time to save her husband's life. Instead, believing defen-

dants' reassurances, Harbury waited for the State Depart-

ment and NSC officials to complete their "investigation."

If Harbury's allegations are true, then defendants' reassur-

ances and deceptive statements effectively prevented her

from seeking emergency injunctive relief in time to save her

husband's life. Because his death completely foreclosed this

avenue of relief, nothing would be gained by requiring Har-

bury to postpone this aspect of her access to courts cause of

action until she finishes prosecuting her tort claims.

The Government offers another reason for affirming the

district court. Relying on Swekel, it argues that since Har-

bury "always had the option to file suit with or without

information from any defendant," her claim should be dis-

missed based on her failure to file such a suit. See Appellee's

Br. at 15 n.5 and accompanying text. But again, Swekel is

very different from this case. There, police allegedly con-

cealed the identity of a potential defendant involved in a fatal

accident until after the statute of limitations had run. When

the victim's spouse filed a deprivation of access to courts

claim, the Sixth Circuit dismissed, observing that "[no] evi-

dence ... establishes that [plaintiff] even attempted to go to

the state court in the first instance." Swekel, 119 F.3d at

1264. The trial court, moreover, had found that the plaintiff

had been aware of all essential facts of the accident except

the defendant's identity, and thus could have filed a "John

Doe" suit despite the cover-up. See id. at 1261. Harbury, in

contrast, asserts that she "had no idea that the United States

Government was aware of, much less involved in, her hus-

band's detention and torture." Thus "unaware that there was

a potential claim of any kind against any U.S. officials,"

Harbury had "no reason to believe that she could state a

claim in United States courts." Appellant's Reply Br. at 14.

Unlike in Swekel, therefore, not only did defendants allegedly

deprive Harbury of any opportunity to seek relief in the

courts, but they effectively concealed most of the "essential

facts" of the case, including U.S. Government involvement,

until after emergency injunctive relief would have been futile.

Cf. Swekel, 119 F.3d at 1264 n.2 (recognizing that plaintiff

need not file a prior suit if "it would be completely futile for a

plaintiff to attempt to access the state court system").

Concluding that Harbury has pleaded an access to courts

claim, however, does not end our task, for the district court

also found that even if Harbury could bring such a claim,

defendants would be entitled to qualified immunity. For

purposes of qualified immunity, it is not enough for a plaintiff

to allege that a defendant's conduct violated a right that is

clearly established in general terms. Instead, "the right the

official is alleged to have violated must have been 'clearly

established' in a more particularized ... sense: The contours

of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that

right. This is not to say that an official action is protected by

qualified immunity unless the very action in question has

previously been held unlawful ... but it is to say that in the

light of pre-existing law the unlawfulness must be apparent."

Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations

omitted).

Applying this standard, the district court dismissed Har-

bury's access to courts claim because it includes no allegation

of "nefarious conduct," such as manufacturing false evidence

or destroying or refusing to collect evidence. See Harbury,

No. 96-00438 at 19-20. Harbury claims only that defendants

denied knowledge of Bamaca's torture and made "allegedly

disingenuous overtures to assist her." See id. at 20. Because

of this, and because State Department and NSC defendants

did not conceal details about "local crimes" they were charged

with investigating, but rather information about a "high-

ranking commander of the Guatemalan National Revolution-

ary Union resistance forces" who had been captured during

an armed conflict with the Guatemalan army, the district

court ruled that it "[could not] hold that Ambassador McAfee,

NSA Lake, or the unnamed State Department and NSC

defendants would have reasonably known that they [had to]

be forthcoming in discussing the intelligence that they had

received about Bamaca." Id. at 20-21.

We read Harbury's complaint quite differently. For one

thing, as we have already shown, Harbury alleges not that

defendants violated an affirmative duty to provide informa-

tion, but that they affirmatively misled her. See supra at 20.

Furthermore, defendants misled her, she alleges, precisely

because they feared that if they gave her accurate informa-

tion about Bamaca's fate, she might sue them. The relevant

inquiry in Harbury's case, then, is this: would an objectively

reasonable official have thought it clearly unconstitutional to

affirmatively mislead Harbury for the express purpose of

preventing her from filing a lawsuit? See Crawford-El v.

Britton, 951 F.2d 1314, 1317 (D.C. Cir. 1992).

Before answering this question, we must dispose of the

Government's argument that under Harlow, any inquiry into

defendants' purpose in misleading Harbury is irrelevant to

their qualified immunity defense. It is true that Harlow

holds that an official's "subjective good faith" is irrelevant to

evaluating a claim of qualified immunity. See Harlow, 457

U.S. at 815-19. But we have understood Harlow principally

to prevent inquiry into officials' knowledge or beliefs about

the legality of their conduct. Except in national security

cases--and the Government has not yet raised a national

security defense in this case--we have not read Harlow to

prohibit inquiry into an official's motives unrelated to knowl-

edge of the law, when "a bad [motive] could transform an

official's otherwise reasonable conduct into a constitutional

tort." See Crawford-El, 951 F.2d at 1317; see also Halperin

v. Kissinger, 807 F.2d 180, 186 (D.C. Cir. 1986) ("No court, as

far as we are aware, has extended Harlow's proscription of

subjective inquiry beyond the issue of knowledge of the law

and intent related to knowledge of the law, except in a

national security context."). The Supreme Court, moreover,

has not only confirmed that Harlow allows inquiry into intent

unrelated to knowledge of the law, but also held that plaintiffs

making constitutional claims based on improper motive need

not meet any special heightened pleading standard. See

Crawford-El v. Britton, 523 U.S. 574 (1998).

Returning to the question before us--Should it have been

clear to an objectively reasonable official that affirmatively

misleading Harbury for the purpose of preventing her from

filing a lawsuit would violate her constitutional rights?--we

think the answer is plainly yes. Not only have five of our

sister circuits held that cover-ups that conceal the existence

of a cause of action (or make it difficult to prosecute one)

infringe the constitutional right of access to courts, and not

only are we unaware of any contrary decision, but we think it

should be obvious to public officials that they may not affir-

matively mislead citizens for the purpose of protecting them-

selves from suit. Harlow developed qualified immunity to

protect public officials from "insubstantial lawsuits" that

threatened to "[divert] official energy from pressing public

issues" and "[deter] able citizens from acceptance of public

office," as well as to ensure that these officials could exercise

their discretion without fear of suit. See Harlow, 457 U.S. at

814. Qualified immunity was never intended to protect public

officials who affirmatively mislead citizens for the purpose of

protecting themselves from being held accountable in a court

of law. Joining our sister circuits, we therefore hold that

when public officials affirmatively mislead citizens in order to

prevent them from filing suit, they violate clearly established

constitutional rights and thus enjoy no qualified immunity.

IV

In conclusion, we reiterate what we said at the outset:

because the district court dismissed Harbury's complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6), our task

is to assess neither the strength nor plausibility of Harbury's

allegations, but to determine whether, assuming the truth of

her allegations, "[she] can prove [any] set of facts in support

of [her] claim which would entitle [her] to relief." Conley,

355 U.S. at 45-46. Applying that standard, we reverse the

district court's dismissal of Harbury's access to courts claim

and remand for further proceedings. In all other respects we

affirm.

So ordered.