UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HARBURY, JENNIFER K.

v.

DEUTCH, JOHN M.


99-5307a

D.C. Cir. 2000


*	*	*


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 on this claim. 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


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-


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


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


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 pp 35, 56-57. Yet State Department officials,


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 pp


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


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


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


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.


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


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


"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


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


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


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


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


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


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


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


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.


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


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


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


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.


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.