The Volokh Conspiracy
[Orin Kerr, November 11, 2007 at 6:20pm] Trackbacks
Commentary on Higazy:
Over at Decision of the Day, "Robert Loblaw" offers some thoughts on the Higazy case. I tend to agree with Loblaw, at least based on what we know so far.
Jeff B. (mail):
Ah yes, always been a big fan of the Bob Loblaw Law Blog.
11.11.2007 6:10pm
myuninformedspeculation:
Maybe court decisions or filings that have been redacted or have had information considered under seal should state plainly that this has been done and why in a general sense. Also the public should be informed which side wanted the redaction and if the other side agreed or not.

This information can be used to monitor the frequency of non public information being used by the courts and increase the confidence of the public in the judicial system.

Not only would we not need to speculate as much on Higazy, but we wouldn't need to speculate on whether every other court decision has considered or redacted information that we are not aware of.
11.11.2007 7:02pm
cboldt (mail):
Aargh. I composed and "sent" a lengthy post at Loblaw, and it doesn't appear, didn't take, or is being moderated/reviewed.
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The docket sheet doesn't illuminate much, but the dates of the case have an odd relationship with the dates of various affidavits.
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1:02-cv-09802-NRB (this is the case that was appealed) was filed on Dec 12, 2002, but Higazy's affidavit is dated Sept 23, 2002, and Agent Templeton's affidavit is dated Oct 25, 2002.
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Anyway, outside of the Court venue, the fact that Higazy had been alleging a threat in the nature of "my family will be turned in to Egyptian authorities" was published in the New York Times in November 2002.
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Inquiry Clears F.B.I. Agents In Egyptian's False Confession - November 26, 2002

Mr. Higazy, 31, claimed he confessed only because the polygrapher had threatened his relatives in Egypt. The review by the Justice Department's Office of the Inspector General found no evidence to substantiate that claim and found that no further action was necessary.
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The reports also note that Mr. Higazy did not raise the issue of threats against his family until 10 days after the polygraph test on Dec. 27, 2001.


I have read a recent news report where a (named) clerk of the Second Circuit asserted that the Court took up the redaction at its own volition and initiative.
11.11.2007 8:19pm
cboldt (mail):
Records Show Judge's Qualms Over F.B.I. Acts - August 16, 2002

Newly released court documents show that a federal judge in Manhattan briefly considered appointing a special prosecutor to investigate how the F.B.I. had obtained a confession from an innocent Egyptian student detained in connection with the attack on the World Trade Center.

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The documents show Mr. Higazy complained to his lawyer, Robert S. Dunn, that the agent "threatened the safety and security of both his family in Egypt as well as his younger brother who was attending school upstate," and that he felt he had no choice but to make some kind of admission "to remove his family from harm's way." The agent denied making any such threats, the documents show. The New York Times and Mr. Dunn had asked the judge to unseal the documents.


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The excuses given by the Second Circuit don't pass the smell test. These details were made public five years ago, over government objection at the time.

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There's nothing new here. Just repetition of the same allegation made in the first place, along with the appeal turning on a legality other than the still to be litigated question of whether or not Templeton threatened Higazy via turning his family in to Egyptian authorities.
11.11.2007 8:53pm
Oren:

Perhaps the government does not want potential terrorists to know the sort of threats that agents routinely make during interrogations of foreigners. Makes sense to me.


Especially when those threats violate the 5A.
11.11.2007 10:22pm
BruceM (mail) (www):
Jeff B: at least I'm not the only fan of the late, great TV show Arrested Development.
11.12.2007 3:29am
cboldt (mail):
-- the public should be informed which side wanted the redaction and if the other side agreed or not. --

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I think we have that in this case. See Judge Rakoff's investigation of 2002 (SDNY Case: 01 MISC. 1750 (JSR)), and Higazy's express sentiment in his counsel's letter of July 18, 2002. All of this secrecy is at the government's behest, and Higazy vigorously disagreed with the secrecy.

I write to inform the Court of my view on the question of unsealing of the material relating to the above referenced matter. It is both my and Mr. Higazy's position, that the entire matter should be unsealed. Transparency of the judicial process should be the order of the day.
11.12.2007 8:31am
Thales (mail) (www):
Interestingly, Bob Loblaw may actually be this guy's name and he really does have a law blog, if it's the same lawyer I've read about. Caused some life imitates art jokes when Arrested Development was on the air.
11.12.2007 9:39am
Oren:
Thanks for putting that one to rest cboldt - I was quite sick of people blaming the victim here.
11.12.2007 9:59am
cboldt (mail):
-- Thanks for putting that one to rest --
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This is the internet. Nothing is ever put to rest. Many people will continue to "blame the victim," and will improperly shift the burden of production of evidence (and will elevate the burden of "proof to the contrary") in order to maintain that position for an indefinite period.
11.12.2007 10:08am

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