When I started The Ethical Spectacle in 1995, I intended one of the meanings of the ezine's title to be that it would cover, with detached irony, the ethical spectacles--scandals, imbroglios, and lesser comic interludes--of our time.
If there ever was an ethical spectacle, one occurred before the Supreme Court on March 18, when Jennifer Harbury argued her own case before the justices. I don't feel at all ironic or detached about this one, though. Harbury, a lawyer, married Efrain Bamaca-Velasquez, a Guatemalan rebel leader. In the early 1990's, he was captured and secretly held by the Guatemalan military, which tortured him to death. Rather predictably, the man doing the torturing was a paid CIA intelligence asset. When Harbury asked our government what it knew about the whereabouts of her husband, she was told he was dead, at a time, she says, when he was still alive. Harbury's legal claim is that the government wilfully denied her the information necessary for her to exercise a legal right--had she known her husband was alive in the custody of a CIA informant, she would have sued to cut off payments to the torturer, possibly saving Efrain's life. The case was dismissed prior to trial by a federal appeals court on the grounds that it did not state a legally cognizable cause of action.
My source is an article by Linda Greenhouse on page A19 of the New York Times for March 19, 2002. The Supreme Court justices very rarely hear argument from litigants appearing on their own behalf. Greenhouse says they "appeared uneasy" and did not seem to want to question Harbury when she paused in her arguments.
I am glad Harbury argued her own case. Appellate judges usually have the comfort of dealing with real life issues through cerebral proxies, lawyers who drily argue case law. When these judges kill a case or otherwise reject an appeal, they are usually doing so at a distance, where it is easy for them to forget that human hopes are being dashed. I think it was healthy for them to have the wife of a murder victim--a woman who will never forget her husband or forgive our government for its role--standing before them.
What made the scene really remarkable, though, was the presence in the courtroom of the spouse of another murder victim--solicitor general Ted Olson, whose wife Barbara died on flight 77 which hit the Pentagon on September 11. You will remember Barbara Olson as the CNN commentator and author who had the presence of mind to call her husband after the hijacking. He told her that planes had already hit the World Trade Center and that the hijackers were undoubtedly planning to crash hers too. "What shall I tell the captain?" she asked.
Olson, of course, was there to defend the government's position that it had no duty to tell Harbury the truth. In doing so, he made a statement that really deserves to be long analyzed and remembered:
There are lots of different situations when the government has legitimate reasons to give out false information.
It makes you wonder whether Olson is so emotionally dead to begin with, or so deadened by working in government, that he felt no shame, no compassion for Harbury, as he said these words. Olson at least knew what had happened to Barbara immediately. Did he stop to imagine what he would have felt like if it had taken him years to get the truth about her death, because our government (shielding an ally) had chosen to mislead him?
While everyone knows that the government lies with abandon--lies like a rug--is in fact a lying sack of government--it is rather novel for a high legal official of the government to stand up and say that this is normal and acceptable and standard operating procedure. And it is very hard to see how government lies fit into any standard theory of democracy, where voters, analyzing truthful information, can make honest decisions about the people they want governing them. It seems to me to be a very iumportant fact to possess, when I go to the polls, that the people in office are paying and shielding Guatemalan murderers.
Which leads also to the conclusion that Harbury's battle, regrettably, is being fought in the wrong arena. The Supreme Court is very likely to find that government had no legal obligation to tell Harbury the truth. No-one is speaking right now, loudly and persuasively, about the morality, quite separate from legality, of the government's behavior in this case. We all ought to be rising up in distress, and voting our consciences, about our government's support of murderers and torturers around the world. In Latin America for generations we trained them at the School of the Americas, funded them, turned a blind eye to the killing by them of priests and the rape-murder of nuns in El Salvador, the rape camps in Chile, the "disappeared" being dropped from helicopters in Argentina while their babies were given to military officers for adoption. At times it seems like the major difference between the "evil-doers" we fight and the ones we fund is that the former don't commit sex crimes.
Because Harbury has not seen a groundswell of sympathetic indignation, she is left with little alternative than to fight for a novel and narrow legal right. But the real issue here is much more fundamental: what kind of people do we want to be. You know a nation by its friends.