Marty Lederman on Higazy:
What was the justification for the court "sealing" Higazy's allegations in the first instance? I am aware of no doctrine in law, or other policy, that permits the FBI or any other law-enforcement or intelligence agency to prevent individuals from describing how they were treated by our government. The fact that the FBI's conduct here was plainly unlawful if Higazy's allegations are true only makes matters worse, since the government should not be able to classify its illegal conduct. But even if the threat had been a lawful interrogation technique, since when can the government insist that you must keep secret what they do to you?
A similar issue is now being litigated in the context of various recent laws that prohibit phone companies and other corporations from revealing that the government has served them with National Security letters requiring production of customer records. One district court recently declared such a gag order unconstitutional, in a case that bears watching.
This is, I think, an ominous development -- the increasingly common notion that the government can insist that no one be permitted to publicly disclose what they know about how the government itself investigates crimes and terrorism, and how it treats those suspected of wrongdoing. Am I missing something? Is there some important historical precedent for this?
Lord knows Marty and I have our disagreements on various issues, but I think this is a case in which we are on precisely the same page.
Related Posts (on one page):
- Khan Can't Say What We Did To Him:
- More on Higazy:
- Lederman on Higazy:
- Classification Pathologies:
During an on-going investigation, if the subject of the investigation finds out that the investigation exists, he will immediately change his pattern of behavior. If he's using a particular bank, and finds out that the government knows he's using that bank, then he's going to move his funds elsewhere, to a place where the government may not be able to find them. This feels a bit creepy to many people, I know, the idea that the government is getting your records without you knowing about it, but it's certainly uncontroversial to allow surreptitious government wiretapping, even planting bugs in restaurants and offices with appropriate judicial authorization, and that's, if anything, more creepy than obtaining bank records.
I agree this is an area for potential abuse, but it's hardly unprecedented or a new thing in the age of terrorism.
But what about the effect of torture on prosecuting suspected terrorists? This doesn’t usually get quite as much attention, but it appears prosecutors who want to put terrorists away find that it’s harder to make a case when the defendant has been abused by U.S. officials.
A House Judiciary subcommittee wanted to explore this in detail today, and was set to hear testimony from a former Guantanamo Bay prosecutor with first-hand experience with the issue. Then the Bush gang intervened.
That was before the Bush gang caught wind of Couch’s intention to inform lawmakers (who have oversight authority) about the problem. William J. Haynes, the Bush-appointed Pentagon general counsel, yesterday told Couch via email that “it is improper for you to testify about matters still pending in the military court system, and you are not to appear before the Committee to testify tomorrow.”
"Hey, Congress -- suck THIS!" in other words. Coming from Haynes especially, who will be in prison one day if there's any justice in the world, this is quite rich.
Congress *created* the military commissions. They are not Article III courts. If the Congress wants to hear about ongoing proceedings in those commissions, as part of its fact-finding into how they're doing, then what conceivable authority does the Executive have to tell Congress that it's not allowed to know what's going on in them?
Help me out here, folks.
Congress: we want such and such officer to testify before us.
Executive: no.
That is not how the government is supposed to work.
As I understand it, Congress asks for testimony when they subpoena the person. So far, Congress has not (as I understand it).
If he wants to testify, more power to him. But others have already pointed out that, as he is a member of the Executive, his bosses can always veto that decision.
Usually they just ask.
When the shift in this balance is to occur is the big question mark in my mind, making evaluating it in an Article III setting as very likely non justiciable.
However, could someone explain to me why the function of Inspector General has been so nonexistent? My understanding is Inspector Generals were designed in part to bring the light of day to issues not likely to make their way into a court room. Why has this internal check so miserably failed to shed light on bad practices? Are they to dependent on the branch? Does Congress just not care to listen (or for that matter act)? Have they been neutered by the agencies and not given access? What effect does classification have on the Inspector Generals role? Any ideas?
"A language or a system of a given structure can be somewhat altered from within, but cannot be revised structurally without going outside the former system. For instance, all the attempts to revise the structure of the euclidean and newtonian systems from within were ineffective. Those who revised these systems structurally had to go outside the systems first to produce different new systems." -- "Science and Sanity: An Introduction to Non-Aristotelian Systems", by Alfred Korzybski
Government is not an honest broker. We need to thoroughly see all that it is up to, and NOW.
Huh? Is this a Lewinsky thing or something?
Perhaps you'd like to see my blog comments on the Saturday Night Massacre, or the Tet Offensive, or FDR's court-packing scheme?
Next up: "Anderson says he's appalled by torture, but what did he post about when the sack of Magdeburg was going on? eh?"
I'm trying to erase a mental picture of Justice Ginsberg from my mind.
So then why assume that was the target of the redaction?
Keep in mind as well that the redacted opinion was a ruling on a motion for summary judgment where the plaintiff's allegations were accepted as fact. The FBI agent denies making the threats, but disregarded that denial for purposes of the motion.
Along similar lines, when an alien is deported, Homeland Security is not allowed to reveal to their home country that they requested asylum. If DHS screws up - which it does - the alien has a new basis for claiming asylum.
So I don't think it's out of the question that Higazy would want to keep his fear of the Egyptian security forces under wraps.
Of course, it is. The right's favorite retort to everything: Clinton did it!
Or more to the point: We're going to assume that anyone who criticizes Bush for anything did not criticize Clinton for doing something vaguely similar 15 years ago, regardless of whether anyone knew what Clinton was doing, and regardless of whether the Bush critic in question was ten years old at the time Clinton was allegedly doing it.
Yes, if you criticized/defended Clinton for doing/not doing the same thing Bush did/did not do, but do not similarly criticize/defend Bush, you are a hack. Like John Yoo. And, of course, the "women's lib" groups who defended Clinton-the-rapist/serial sexual harasser but sought to lynch Clarence Thomas. And, of course, the people who attacked the Duke lacrosse players but defend the Jena 6. (The comedy there is that the Jena 6 kids are actual criminals who are being overcharged rather than falsely charged. Yet those six criminals are being hailed as civil rights heros. Weird.) There's plenty of hackery on both sides.
Most people are hacks, so you have the company of many bedfellows. In fact, if you are a hack, you will be invited to more cocktail parties.
So differences in magnitude/quantity don't matter? If you abstract something enough then you can easily find something remotely similar that someone else did previously. but we're not talking in the abstract...we're talking about the specific actions of this administration in relation to specific actions of previous administrations.
99% of the time "but clinton did it" is an argument of last resort used by someone who has run out of arguments and it is rarely persuasive. just because someone does something wrong doesn't suddenly make it right when people do it afterwards.
and to further underscore the ridiculousness of the "but clinton did it" argument, how many conservatives defended bill clinton by saying "but jefferson did it"?
No. Lynching Clarence Thomas would mean seizing him and hanging him from a tall object, typically after torturing him first. As happened to a great many black Americans.
What next? A Jewish nominee gets criticized, fairly or not, and declares that it's a "pogrom" against him? if not a "Holocaust"?
All the while, cheapening the language and making light of the real victims.
Man, I feel a lot of heat from your comments. Sometimes your words jump from my computer screen. It's a good thing I have my flame-resistant suit on.
Chow.
I could never figure out what a high-tech lynching would be. Synthetic rope, maybe?
The Democratic Party is less like a regiment and more like Washington Square Park, with a fair number of Democrats sleeping on benches, haranguing passersby, etc.
FWIW, Peretz has pretty much checked out himself. Sharpton's an embarrassment; possibly when the Democrats get more respectable black leadership, such as Obama, they'll have the backbone to call out the Sharptons. But the vertebrate Democrat is as fugitive as the ivory-billed woodpecker ....
I don't recall that Higazy was a dissident in any manner - and his confession was proven false.