ustxtxb_obs_2002_06_07_50_00020-00000_000.pdf

411174873 www . lazyoakbandb .com have prevented the Guatemalan military from executing her husband.” First Cordray and later Olson argued that a ruling in favor of Harbury would stifle communication between government officials and ordinary citizens, thousands of communications that take place every day. One of the most common forms of communication, as Olson described it, was the “equivocal and innocuous ‘I will get back to you.’ That, he insisted, was the essence of Harbury’s casea half-hearted promise on the part of Marilyn McAfee, the U.S. Ambassador to Guatemala and other State Department officials, to look into things; an innocuous, “I’ll get back to you,” should not result in a lawsuit. Furthermore, Olson maintained that the government had an inherent right to lie: “There are lots of different situations where the government quite “Ironically I note that today this case is in the highest Court of the land, but it is exactly 10 years and six days too late,” Harbury said, a reference to the first CIA memo about Everardo’s capture. Denial of access had proven fatal. legitimately may have reasons to give false information out.” And then it was time for Harbury. Until recently she had been represented by a team of pro bono lawyers, but when the Court agreed to review the case, she decided to argue it herself. Her decision sparked the interest of the press, which over the years seemed to have trouble grappling with the fact that it was possible to be a Harvardtrained lawyer, political activist, and.the widow of a Guatemalan guerrilla leader at the same time. Perhaps the justices who were not used to hearing directly from the parties before themwould be equally perplexed. She began by telling the Court that the case turned on “a very narrow question of law,” a long opening statement that ended with the words “secret cell,” “severely tortured,” and “imminent danger of imminent execution.” “Ironically I note that today this case is in the highest Court of the land,” she told the Court, “but it is exactly 10 years and six days too late,” a reference to the first CIA memo about Everardo’s capture. Denial of access had proven fatal. “Access to court to do what?” Justice Ruth Bader Ginsburg asked in a hesitant voice. “What claim could you state?” Harbury took that as her cue to argue her case within a case, to outline the kind of relief she would have asked for years ago if she had had the information she needed. She would have asked for an order prohibiting the CIA from requesting and paying for information obtained through torture, an order prohibiting the agency from failing to supervise its Guatemalan employees, prohibiting CIA officials from failing to disclose what they were required to disclose to Congress. “Any court faced with torture and the possibility that someone tomorrow may be literally thrown from a helicopter,” she told the Justices. “I do not believe that any court in this country could not have acted swiftly to redress that situation.” She fielded questions on a wide range of case law and procedure, but in contrast to the previous case, the response from the bench had slowed considerably. Scalia limited himself to a paltry few questions, as did Chief Justice Rehnquist. Justice Breyer asked a long and winding question that began with “obviously reading your story, one is immediately sympathetic,” and ended with a variation on the issue of executive branch responsibility for foreign affairs. “When there’s egregious behavior throughout the world,” he asked Harbury, “How can we distinguish this case from the general problem of foreign relations, from the general problem of the CIA, from things that courts by and large don’t get into?” This was not a case about sensitive, national security information, she told the Court. \(Indeed officials later indi continued on page 28 20 THE TEXAS OBSERVER 617/02