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Jennifer Harbury’s crusade to make the federal government answer for her husband’s death suffered a setback in the U.S. Supreme Court Thursday, but the Texas lawyer says she’ll fight on. The Court, in a 9-0 opinion, ruled that federal officials did not deny Harbury access to the courts by misleading her about her husband’s death. But the decision doesn’t impact the existing emotional distress and other claims Harbury has brought against the government. Harbury’s husband, Efrain Bamaca-Velasquez, was a Guatemalan rebel leader who was captured in 1992 by Guatemalan army forces, tortured, and eventually killed. Harbury, a human rights activist, embarked on a search for her husband, staging hunger strikes and continually pressing State Department officials and others for information. Harbury contends that U.S. government officials knew that her husband had been killed in 1993, but repeatedly assured her he was alive and that they were working to free him. In 1995, it was revealed that the Guatemalan colonel who had interrogated Bamaca and ordered his murder was a paid agent for the CIA. The following year, Harbury brought suit against then-Secretary of State Warren Christopher and other top-ranking officials of the Clinton administration in the U.S. District Court for the District of Columbia. The suit was thrown out by Judge Colleen Kollar-Kotelly, but was later partially reinstated by the U.S. Court of Appeals for the D.C. Circuit. Christopher, former National Security Adviser Anthony Lake, and other officials pushed for the Supreme Court to review that decision. Earlier this year, Harbury took the unusual step of arguing the case before the high court herself. The alleged deceptive conduct of those government officials provided the basis for Harbury’s claim she was denied access to the courts. She contended that had the State Department been more forthcoming about her husband’s status, she would have pursued legal remedies to try and save her husband’s life. The Supreme Court’s decision, written by Justice David Souter, took much of the heat out the emotional case, replacing it with the stolid vernacular of a debate over federal civil procedure. In her access to courts claim, Souter wrote, Harbury failed to describe with the requisite specificity which claim she would have pursued had she been given the proper information. While the Court could not “read the complaint without appreciating Harbury’s anguish,” Souter wrote, Harbury’s complaint “did not even come close to stating a constitutional claim for denial of access upon which relief could be granted.” Richard Cordray, a Grove City, Ohio, lawyer who represented the accused former government officials, said the Court “reached the right result.” As a result of this decision, Cordray said, pleading an access to court claim “must be much more careful and highly focused.” Harbury, contacted at her Texas home following Thursday’s ruling, said that parts of the decision were actually encouraging. She feared the Supreme Court would give weight to the government’s contention that it sometimes has a “right to lie.” In an argument that has increased relevance in the post-Sept. 11 world of heightened national security, Solicitor General Theodore Olson contended in court papers that “the issuance of incomplete information and even misinformation by government may sometimes be perceived as necessary to protect vital interests.” That language, however, did not find its way into Souter’s opinion, something that cheered Harbury. “I’m very relieved to see that the extremist position taken by John Ashcroft and George Bush on human rights and civil rights is not part of the Court’s decision,” Harbury said. “There is no green light for torture. There is no green light to deceive the public.” Olson’s argument found one ally in Justice Clarence Thomas. In a concurrence, Thomas wrote that he believes a constitutional right of access to the courts does not force the government to disclose information vital to national security. Harbury will now return to federal court in Washington to pursue her emotional distress claims and other tort claims, based on common law and international law, against the government. “We’re very much alive,” she said. Jim Oliphant is a senior reporter at Legal Times.

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