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More on Higazy:

I agree with Orin that there is much to comment in Rob Loblaw's post, but I disagree with the bottom line. If Higazy sought to have his allegations kept secret, I would agree that keeping such information under seal would not be particularly sinister or problematic. Yet that does not appear to be what happened in this case. To the contrary, as noted here, Higazy's lawyer opposed keeping the allegations under seal.

As I noted in my prior post on the matter, I agree that there are legitimate reasons for the government to file information under seal, and there are even legitimate reasons for the government to keep its interrogation protocols under wraps. In this case, however, what is at issue is not the government's standard interrogation methods or guidelines, but specific allegations of government misconduct in a specific interrogation. Such allegations, and the public's interest in allegations of government malfeasance, would seem to outweigh the government's interest in keeping its interrogation methods secret, particularly since such secrecy could be a means of preventing the disclosure of government malfeasance.

RL:
It's a bit misleading to treat as dispositive the position of a different attorney in a different context.

Robert Dunn (who has since passed away) took that position with respect to the inquiry ordered by the district judge in the criminal case in 2002. At the time, the civil suit was but a twinkle in Higazy's eye, so at the time, he would have had a personal interest in collecting as much information from the court-ordered inquiry as possible.

While I agree that cboldt's research adds more depth to the story, I disagree that it's conclusive evidence about what actually happened.

But I think we can all agree that the Higazy story raises important big-picture questions about whether and when courts should allow information to be filed under seal.
11.12.2007 1:38pm
OrinKerr:
Jon,

Can you be a bit more specific as to who you are criticizing? Is it Judge Rakoff? Judge Pooler?
11.12.2007 1:40pm
cboldt (mail):
RL's contention is that attorney Dunn's position, taken in July 2002, is not dispositive of Higazy's position in 2007.
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FWIW, Dunn's comments weren't in the context of the criminal prosecution of Higazy. Higazy was exonerated in January 2002, and took the "disclose all" position in July 2002. At that time, Judge Rakoff was studying the circumstances of a false confession being promulgated in his court.
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I'm waiting for the evidence that Higazy's position in 2007 is to make secret what he once wanted to make public.
11.12.2007 2:23pm
Jonathan H. Adler (mail) (www):
Orin --

I am more concerned by the behavior of the federal government than the judges. My bottom line is this: If the government sought to keep this information private by filing it under seal, that was wrong, as the government interests are outweighed by the potential misconduct. Similarly, the decision by whichever judge(s) to keep that information under seal also seems questionable to me, particularly if, as it appears, Higazy wanted disclosure, and the only reason for keeping things covered up was to prevent embarrassment to the feds. I also think it was wrong for the Second Circuit to ask Howard Bashman to remove the original opinion from his website after they had inadvertently posted it.

Are there specific aspects of this case that suggest I should feel otherwise?

JHA
11.12.2007 2:32pm
Jonathan H. Adler (mail) (www):
Orin --

Let me add an addendum. I realize that the Second Circuit clerk's office said that this was done on the court's own initiative to protect Higazy. This sounds like a poor post hoc rationalization, particularly because there is no evidence that Higazy wanted such information to be kept secret for his protection, and had previously wanted disclosure. Without evidence Higazy sought to have this information under seal, the Second Circuit had no reason to treat it in this fashion.

JHA
11.12.2007 2:38pm
OrinKerr:
Thanks, JHA.

To me, the Higazy case smells like a law clerk snafu. There were some things under seal from the district court record that weren't really at issue in the appellate opinion. Judge Pooler's chambers drafted the opinion, and it seems that they weren't particularly careful about making sure that nothing under seal made it into the factual description. So then the opinion is handed down, and someone who knows the record (like an attorney for the government) calls the CA2 clerk's office and says, "Um, like, isn't this part of the opinion under seal?" The CA2 clerk's office then tries to do damage control, but Bashman has his hands on a copy of the original and he posts it.

No, it may be that the disclosed facts shouldn't have been under seal in the first place. But my recollection (not having read the case since it came down) is that those facts weren't actually in dispute, weren't needed to resolve the legal issue, and that whether they were properly under seal wasn't before the court. Or am I wrong about that? I am the first to say that I haven't followed the case closely, so maybe I'm wrong.
11.12.2007 3:04pm
c.l.ball:
If the seal was designed to prevent classified information from being disclosed, there is a real problem with the classification. Even as an innocent person, Higazy is not cleared to receive classified information and no government official is authorized to disclose such information to him without a presidential order. In other words, the interrogation dialog should not be considered 'classified' because Higazy does not have a security clearance.

This is different from classifying interrogation methods, e.g., a manual on how to interrogate or an officer describing the interrogation strategies.
11.12.2007 4:04pm
GV_:
c.l.ball. -- Higazy needs a security clearance from the U.S. Government to tell the world that the U.S. Government tortured him? What?
11.12.2007 4:14pm
Oren:
clb, there is no legal bar to people publishing classified information so long as they have not priorly agreed to clear their works with the gov't. This is why, if you pick up Valerie Plame's book, there is an addendum filling in all the redacted portions, written of course, by a journalist and not by Ms. Plame herself.
11.12.2007 4:48pm
Anderson (mail):
The point I think is WHY was it "under seal" that an FBI agent threatened a suspect with the torture of his family?
11.12.2007 4:54pm
cboldt (mail):
-- The point I think is WHY was it "under seal" that an FBI agent threatened a suspect with the torture of his family? --

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Higazy's allegation of his family being threatened was never under seal. The FBI denies the allegation. They stop short of saying Higazy is lying when he says Agent Templeton threatened to call the Egyptian security forces out against Higazy's family.

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The details that were redacted were roughly:
- Higazy's statement that he found Templeton's threat frightening because the Egyptian security forces use rape and torture
- Higazy's statement that Saddam Hussein's security forces were trained by Egyptian security forces
- Templeton's statement that he believes the Egyptian security forces use torture

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The redacted portion below appears in very similar, but not identical form, in news reports (CBS &/or CNN) from 2004. The fact that it is in the public domain does not preclude it from also being filed under seal.

"I knew that I couldn't prove my innocence, and I knew that my family was in danger." He explained that "[t]he only thing that went through my head was oh, my God, I am screwed and my family's in danger. If I say this device is mine, I'm screwed and my family is going to be safe. If I say this device is not mine, I'm screwed and my family's in danger.
11.12.2007 7:49pm
cboldt (mail):
Here is the 2004 material that resembles the above-cited passage (that was redacted from the 2nd Circuit's Opinion):



Interrogation Techniques May Lead To False Confessions
(CBS) - Feb. 29, 2004
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All I said was, I'm just gonna say the truth. And this [polygraph] device is gonna show him that I am saying the truth. Unfortunately, the agent threatened me, says Higazy. He said it like this: If you do not cooperate, the FBI will make your brother upstate live in scrutiny. And we'll make sure Egyptian security gives your family hell. That's exactly how he said it.
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The FBI would not discuss the case. An internal investigation into Higazy's allegations concluded there was no evidence the agent had acted improperly.
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As the polygraph continued, Higazy says, he began to panic: I just couldn't breathe. I could hear my heart beat in my head. I started saying, OK, the options are if I say I don't know anything about this device, I'm screwed and so is my family. If I say I know something about the device, it'll be I lied, I'm screwed, but at least my family will be safe. And I said, OK, the device is mine."
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In November 2002, the government filed its report but asked the judge to seal it and not disclose it either to the public or to Mr. Higazy. The NYCLU then entered the matter as counsel for Mr. Higazy and filed an extensive letter brief opposing the sealing request on November 13. On November 21, the government changed its position and agreed to release the report.


In my previous post, I failed to note some redacted details that I've not been able to find in earlier public records:

- The ages of some of Higazy's family members
- That Higazy's brother in upstate NY has arthritis

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I don't disagree that the publication may have been an inadvertent clerical mixup (or it may have been deliberate), but that just highlights the fact that, since the actual owner of the radio came forward, the government has attempted to argue its side of the case in secret, even where its side of the case involves statements made by Higazy, and even where some of those statements already obtained wide public dissemination.
11.13.2007 8:16am