Some Thoughts on Higazy
Saturday, November 10th by Robert LoblawA few weeks ago, the Second Circuit issued an opinion in an important case involving an Egyptian national who was coerced into falsely confessing that he was the owner of an air-to-ground radio found near the World Trade Center on September 11. Within hours, the Court withdrew the opinion. The next day, it issued a revised opinion omitting the details of the confession. But in the meantime, one blogger had posted about the full opinion, while another had posted a copy on his website, which he kept despite the Second Circuit Clerk’s request that he remove it.
Since then, there has been an increasing amount of outcry in the blogosphere about why the Second redacted the details of the confession. Most commentators are assuming that there is something sinister afoot. That the government is using trumped up national security concerns to shield embarrassing information from the public eye.
So far, I’ve stayed out of the discussion, because I’m not quite sure what to think. It’s possible that the government is behaving underhandedly. But it’s equally possible that the government is using straightforward legal tools that are available to it. There’s also a third possibility that the plaintiff himself did not want the details of his confession - including his fear that his repressive government might harm his family - to get back to said repressive government.
Let’s start with the straightforward legal tools. First, any party to civil litigation can ask for a protective order to shield sensitive information from the public eye. The parties agree on the scope of the order, the district court signs off on it, and then the parties file under seal those materials that refer to the designated information. When deciding cases, courts try to avoid relying on sealed materials, but if necessary, courts will issue redacted orders and opinions. Occasionally, a court makes a mistake and includes sealed information in the public docket. The court scrambles to fix the mistake. This stuff happens all the time in civil litigation. Nothing sinister about it.
Second, the government is entitled to regulate the information that its employees disclose in litigation. This is accomplished via the Touhy rules (from the 1951 Supreme Court case that upheld their constitutionality), and every agency has them. The FBI’s disclosure rules, which apply to the Department of Justice as a whole, can be found at 28 C.F.R. §§ 16.23-28, and the restrictions on disclosure can be found at § 16.26(b). (You can learn more about the DOJ’s Touhy rules here and here.) One of the restrictions prevents disclosure of investigative techniques and procedures if it would impair future investigations. 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.
Now, in this case, the redacted information involves Higazy’s allegations, so his affidavit would not be subject to the Touhy rules. But if the FBI is not going to reveal the details of its interrogation techniques, the government may have asked the court to seal this portion of the record in order to avoid having just one side of the story out in the public eye. As a litigator, this also makes sense to me.
And finally, there is a real possibility that the plaintiff himself wanted to keep the details of his confession quiet. The Egyptian government is not known for its tolerance of dissent. Perhaps he felt that it was dangerous for his home country to know that he was bad-mouthing its security forces to the FBI. Or perhaps he felt that, as a young student hoping to return to Egypt to start his career, his prospects would be better if this information were not publicly available.
Or perhaps the blogging community is correct, and this was a botched attempt at unlawful government censorship.
My point is that we simply don’t know. But if some enterprising blogger were really interested in getting to the bottom of this, a Pacer account and a few dollars is all it would take to find out whether there is a protective order in this case, what its terms are, and which party asked that the details in Higazy’s affidavit be sealed. Or, if someone really want to take on the government, he could file a motion to unseal the record. Then we’d really find out who wants to hide what, and why.
But until someone gets to the bottom of this, it’s all just speculation at this point.
Update: Apparently it won’t be quite so easy to unravel the mysteries of Higazy-gate, as the key documents are apparently not yet available on Pacer. More cover-up? Or just more all-around ineptitude? Perhaps one of the NYC area bloggers could hop on over to 55 White Hall and take a peek at the docket for the rest of us. Those folks must have scads of free time now that Charney-gate is over.
November 11th, 2007 at 5:04 am
Odds and Ends (NY PDs)…
I realize that there are a lot of PD Blogs out there, which can provide you, dear reader, with the outrage necessary to meet with your whiny clients all day. But, since nothing is happening today, I figure I should…
November 11th, 2007 at 3:21 pm
Commentary on Higazy:…
Over at Decision of the Day, “Robert Loblaw” offers some thoughts on the Higazy case. I tend to agree with Loblaw……
November 11th, 2007 at 4:06 pm
The case documents are not available through Pacer.
November 11th, 2007 at 6:10 pm
Not only are the case documents unavailable, the timeline relationship between certain affidavits referenced in the Circuit Court opinion and the SDNY cases is disjointed.
.
USA v. Higazy - 1:02-mj-00053 and 1:02-mj-00053-UA-1 - Filed 1/11/2002, Closed 1/16/2002
Higazy v. Millenium Hotel, et al (the case that is appealed) - 1:02-cv-09802-NRB - Complaint filed 12/12/2002
.
But at page 42 of the Second Circuit’s opinion (Chief Judge Jacobs concurring), we read of a Higazy affidavit (which does allege a threat being lodged against his family) dated Sept 23, 2002; and at page 43, the opinion quotes from Agent Templeton’s affidavit dated October 25, 2002.
.
I have no idea what case was underway, if any, at the time those affidavits were drawn up and sworn. I also don’t know if those affidavits are in the public realm, as in “available at the courthouse for public review.”
.
As to the SDNY Higazy v. Millenium Hotel (and FBI Agent Templeton) case, the docket sheet indicates a number of rulings that reflect the possibility of objection to disclosure under the Privacy Act (Any objection to the production and use of such documents and information on the ground that they are protected by the Privacy Act of 1974, 5 USC 552a, is overruled.)
.
The nature of the confidentiality orders is completely opaque. The docket sheet says, “regarding procedures that will govern the handling of confidential material during the course of these proceedings.” and no more.
.
07/18/2003 31 PRIVACY ACT ORDER
09/04/2003 32 CONFIDENTIALITY ORDER
.
01/28/2004 39 PRIVACY ACT ORDER
01/28/2004 40 CONFIDENTIALITY ORDER
.
Docs 39 and 40 may be Court responses to Doc 38, a 01/21/2004 ENDORSED LETTER from AUSA Sean Lane dated 1/9/04 re: granting counsel for the government’s request that dft Templeton’s summary judgment motion would be filed by 2/20/04 ….
.
Agent Templeton’s argument on the MSJ was that, assuming arguendo without admitting it as true, he had threatened Higazy as Higazy alleges, Templeton should not have liability either because Tempelton wasn’t coercing the confession for the purpose of bringing a criminal case, or because Higazy’s attorney (for failure to assert the confession was coerced) and the judge who gave the detaining order should have prevented the detention. In his October 25, 2002 affidavit, he stated that when confronted by Higazy and his attorney (before Higazy’s January 11, 2002 bail hearing), Templeton denied making the threat. Read carefully, as this this is not the same as swearing he didn’t make the threat, it is swearing that he denied it to Higazy in the presence of Higazy’s lawyer.
.
My intuitive sense is that Higazy was telling anybody who would listen, that he had been threatened by Agent Templeton.
.
News stories of the era might shed some light on whether or not Higazy was making the details of his accusations public.
.
Egyptian Student Sues Over Arrest - December 13, 2002
Inquiry Clears F.B.I. Agents In Egyptian’s False Confession - November 26, 2002
From the Nov 26, 2002 article, it appears Mr. Higazy very publicly let the cat out of the bag in 2002.
That still leaves unanswered, who or what was the force behind redacting the Opinion of the Second Circuit Court of Appeals. There are current news accounts citing a named clerk as the redaction being undertaken at the Appellate Court’s initiative.
November 11th, 2007 at 6:38 pm
– And finally, there is a real possibility that the plaintiff himself wanted to keep the details of his confession quiet. –
.
The contemporaneous news accounts, circa September, December 2002, militate rather strongly against this option.
.
Federal Report On Confession From Egyptian Is in Dispute - October 29, 2002
.
That news account paints the government as most eager to keep the splash of the story to a bare minimum. The dispute was between the government, who wanted the issue to go away, and Judge Rakoff, who wanted a written report from the government as to the allegation of threatening Higazy with “turning in your family to the Egyptians.”
.
Records Show Judge’s Qualms Over F.B.I. Acts - August 16, 2002
November 11th, 2007 at 7:04 pm
Cboldt,
Are you referring to the WaPo article quoting Second Circuit Clerk Catherine O’Hagan Wolfe?
http://www.washingtonpost.com/wp-dyn/content/article/2007/10/24/AR2007102402639_2.html
Here’s what it says:
Catherine O’Hagan Wolfe, clerk for the appellate court, said the original Higazy ruling was withdrawn to remove information that should have been sealed. She said that the court made the decision and that it was not done at the request of the Justice Department or the FBI.
Wolfe said the redacted information was originally sealed for the safety of Higazy and his family. The passage that was removed is about a page long and centers on Higazy’s allegations of Templeton’s threats and his fears of Egyptian security services.
This is consistent with my explanation that the Second screwed up and included material from the sealed portion of the docket, and then scrambled to fix the mistake.
Looking at the news accounts you cited, I see a significant difference between them and the unredacted opinion in the level of detail about Higazy’s fears, and specifically who he was afraid of (his own government) and why (because they were capable of torturing innocents). So I think that the explanation that Higazy’s security was at risk is not far-fetched.
As far as the date of Higazy’s affidavit, a good plaintiff’s attorney will make his client sign an affidavit with all of the key allegations before filing the case. It’s a CYA thing. So it is not unusual that one of the affidavits used at summary judgment was dated before the case was filed.
As for Templeton’s affidavit, one of the New York Times articles you cited refers to an internal inquiry at the FBI conducted in fall 2002. Templeton probably signed his Oct. 2002 affidavit as part of that inquiry.
I’d bet those affidavits are sealed, but a journalist/blogger could file a motion to unseal them and see who opposes it and why.
November 11th, 2007 at 7:11 pm
Yes, that’s the article about the clerk that I had in mind.
.
Higazy’s affidavit was part of an investigation ordered by Judge Rakoff. One of the links I provided above is to a series of NYT articles. Higazy’s attorney asked for, and obtained an unsealing of the documents. They were unsealed in 2002.
.
I agree that the level of detail is different. In the 2002 news accounts, Templeton is cited as making a direct threat against Higazy’s family in Egypt. The public affidavit contains the delineation of threat of use of the Egyptian government to carry out the threat. Interesting that Higazy’s father was an Egyptian diplomat.
.
And it is entirely possible that the Second Circuit redacted the opinion of its own volition.
November 11th, 2007 at 7:30 pm
So after the opinion is published on the Second’s website, the panel decides - sua sponte - that the opinion needs to be redacted to avoid undue embarrassment to the Bush administration?
I agree that this is a possibility. But it is so incredibly inept that I have a hard time accepting it as a likely scenario.
November 11th, 2007 at 7:36 pm
Oops, I spoke too soon that the detail of “Egyptian authorities” was unavailable in 2002. Here’s a 2002 news account that recites that the alleged threat involved use of Egyptian authorities.
.
November 11th, 2007 at 7:38 pm
So after the opinion is published on the Second’s website, the panel decides - sua sponte - that the opinion needs to be redacted to avoid undue embarrassment to the Bush administration?
More plausibly, the FBI or Justice squawked to the Court.
Compare Howard Bashman:
There has been much speculation that it was the FBI or the federal government that caused the 2nd Circuit to withdraw the original opinion, to avoid being cast in a bad light by the opinion’s description of Higazy’s interrogation, which some have described as amounting to torture.
I have no doubt that the original version of the 2nd Circuit’s ruling in the Higazy case was the version that the three-judge 2nd Circuit panel intended to make public. If the details of the interrogation were irrelevant, the original version of the decision would not have provided them. And if the judges thought that those details should have remained private, the original version of the opinion would not have described them.
November 11th, 2007 at 7:48 pm
– So after the opinion is published on the Second’s website, the panel decides - sua sponte - that the opinion needs to be redacted to avoid undue embarrassment to the Bush administration? –
.
Without assigning a reason for the redaction, it is undisputed that the Second Circuit preferred that the unredacted version never have made its way to the public. And one can read the account of Second Circuit Clerk Catherine O’Hagan Wolfe for the proposition that “nobody outside the Court asked the Court to redact.” Ergo, if I believe the clerk, I conclude the Court redacted of its own volition, for reasons unstated.
.
I just assumed that the “redaction” decision was made before the opinion was published the first time, and that publishing the unredacted version was a simple mistake, communication lapse or similar. But two hours is sufficient time to get a call from an angry “customer” too.
.
Given the history of the case, I don’t believe that Higazy or his counsel requested the Second Circuit to redact its opinion.
November 11th, 2007 at 8:03 pm
This is my favorite part of Howard Bashman’s article:
“I decided to read closely through the Higazy decision to see whether anything in the decision seemed so inflammatory that I should join the 2nd Circuit in taking the decision off-line. However, I did not find anything that resembled an important government secret or information that would prove harmful to anyone.”
How much does Bashman know about free speech in Egypt? Even if there were just a 1% chance that the information in the unredacted opinion could come back to hurt Higazy and his family, it is irresponsible to publish it.
November 11th, 2007 at 8:43 pm
– Even if there were just a 1% chance that the information in the unredacted opinion could come back to hurt Higazy and his family, it is irresponsible to publish it. –
.
I haven’t read the complaint yet, but it’s possible that all of Higazy’s allegations and reactions are pretty well fleshed out there. The “new” public information (at least from news accounts), in 2007 compared with 2002, is Higazy’s statement to the effect that the Egyptian government uses torture, rape and other techniques on people that it suspects as being terrorist. Also that the general population of Egypt will shun suspected terrorists, and actual terrorists may try to associate with suspected terrorists. If Higazy is to be believed, all that added up to big trouble for his family, in his mind.
.
There’s an aspect to the unredacted opinion that the government may hold as “embarrassing,” that being a sentence or two of Agent Templeton’s statement.
.
November 12th, 2007 at 5:46 am
Still poking around the internet for details (looking for the civil complaint in particular), and found a collection by Cryptome of some of the documents surrounding Judge Rakoff’s investigation into the circumstances surrounding Higazy’s detention. link - Case 01 MISC. 1750 (JSR)
.
Higazy’s counsel’s position with regard to secrecy is clearly stated in a one page letter dated July 18, 2002.
The government’s response was a 10 page legal memorandum advocating the entirety of the proceedings be and remain sealed.
.
At this point, I’m operating on a presumption that none of the verbatim material that was “mistakenly published” by the 2nd Circuit in October 2007 appears in previously public portions of the record. That is, that the material mistakenly published was under seal, and was intended, at least by the government, to remain under seal, and was never unsealed. But the gist of that material, except for Templeton’s admission that he thought the Egyptian government uses torture, COULD have been public, i.e., Higazy seems willing to fully and publicly explain and express what he thought of the Egyptian government’s approach to terrorism.
.
I’m positively convinced that the secrecy is solely at the government’s behest. An angry DOJ/FBI might point out to the Second Circuit that “lines such and so in the opinion are, as you know, part of material that the government provided under seal.” This does not amount to expressly asking for a retraction/redaction. Or, the Second Circuit may have noticed this on its own.
.
One might note that Judge Rakoff did not accept the government’s arguments for secrecy. The case reads to me as borderline bad faith on the part of the government, to get to the bottom of it, and take steps to prevent future occurrences. Rather, the pattern is to demand secrecy, and within that cloak, use the energy to deny any and all wrongdoing.
November 12th, 2007 at 5:55 am
Without impugning the clerk, I can certainly see that if (say) the FBI *did* ask her to redact and keep that request secret, she might feel bound to say otherwise.
November 12th, 2007 at 5:58 am
– perhaps the blogging community is correct, and this was a botched attempt at unlawful government censorship. –
.
There remain questions about whether the publication was a botch by the 2nd Circuit, or if the FBI/DOJ called the Court to complain about sealed material appearing verbatim in a published opinion.
.
I don’t think there is any question about the legality of the secrecy. The government argues strenuously (and successfully, see published opinion at the 2nd Circuit website) that the redacted material is properly redacted. Ergo, it’s not “unlawful censorship.” It’s completely within the law.
.
And it stands as yet another example of lip service to transparency. In that regard, the job was botched back in 2002 when Judge Rackoff forced an internal investigation. What’s new today, at most, is evidence of government determination to protect its “good reputation” at the expense of coming clean.
November 12th, 2007 at 6:22 am
– Without impugning the clerk, I can certainly see that if (say) the FBI *did* ask her to redact and keep that request secret, she might feel bound to say otherwise. –
.
I seriously doubt any attorney at DOJ or FBI would make that express request. It’s much better to leave the Court the option of honesty and fully truthfully stating that it was not [expressly] asked to redact. Simply pointing out and reminding the Court that certain passages come from sealed material would be sufficient, and leaves both the DOJ/FBI and the Court with room to “save face.” At least, “save face” to the extent that it’s not perfectly clear to the public that the DOJ/FBI noticed and objected to the publication, nor that the Court was pushed around by by the DOJ/FBI.
.
In light of the investigation details published back in 2002, I don’t see the 2007 2nd Circuit publication/take-back as providing much in the way of a “new” revelation of Templeton’s interrogation tactics. I’d concede that Templeton’s express verbatim beliefs are a new revelation, but the nature of his threat and the underlying beliefs that support it (Egypt is no-nonsense with terrorism suspects) are clearly between the lines in the 2002 court papers and news accounts.
November 12th, 2007 at 6:50 am
cboldt,
It’s important to note that the comments from Higazy’s lawyer about secrecy are in the context of the criminal case against him. It makes sense that a criminal defense attorney would push for transparency, especially given the possibility that the government would drop charges rather than disclose protected information.
It’s also worth noting that Higazy has a new team of lawyers on his civil case, since Dunn passed away two years ago.
November 12th, 2007 at 7:13 am
– It’s important to note that the comments from Higazy’s lawyer about secrecy are in the context of the criminal case against him. –
.
The comments were in the context of Judge Rakoff’s investigation into how a false confession came into his courtroom. Case 01 MISC. 1750 (JSR). The redacted affidavits come from a timeframe that fits within that investigation, and outside the timeframe of Higazy’s criminal and civil cases.
.
While it’s imaginable that Higazy’s new team, the one on the civil claims and cross claims, may hold a different point of view, and it’s imaginable that Higazy had a change of mind and would rather not have the world know the details of his belief that the Egyptian government is tough on suspected terrorists, the evidence of “who wants the secrecy” points only toward the government.
November 12th, 2007 at 7:30 am
What’s the effect on Higazy’s case if he says something that implies “no unfair treatment ever occurs under Egyptian authorities?” It completely undermines his contention that a threat to turn his family in to Egyptian authorities was a concern. If the Egyptian authorities are “benign,” then the threat of turnover would have no force.
.
His very allegation and case depend on his belief that Egypt is “sometimes too tough” on suspects, and that it doesn’t necessarily undertake a careful verification regarding US government direction as to who should be targeted. Otherwise, why would he cave in to Templeton’s threat?
.
It doesn’t make sense that Higazy would shy away from stating that he was afraid for his family, because of what he thought the Egyptian authorities might do to them. And the redacted material from the 2nd Circuit that describes his belief about Egyptian security practices is approximately the same as Templeton’s, to wit, the Egyptians use torture and rape.
November 12th, 2007 at 8:42 am
More on Higazy:…
I agree with Orin that there is much to comment in Rob Lobla……
November 13th, 2007 at 4:28 am
“Even if there were just a 1% chance that the information in the unredacted opinion could come back to hurt Higazy and his family, it is irresponsible to publish it.”
I am going to say that this is NOT a reason to redact something? Why? We are letting Egyptians tell us the contours of our First Amendment. Is this really what you are arguing? That there mere threat by an oppressive regime that they might be provoked into hurting people should make us redefine our 1st amendment jurisprudence regarding access to court documents. It isn’t even as if the Egyptian government submitted an amicus brief saying, “We would torture him based on what he said.” Nevermind the fact that a 1% chance isn’t a 50% chance.
But, if things were really so dangerous, other parts of the opinion – i.e. the dude’s name – could have been redacted. I would have far less trouble with a “Mohammad Doe” opinion being release, because Americans have less of an interest in knowing which Mohammad was abused by our government, then we do in what our shenanigans government is up to.
Look at the irony. People have seized upon 9/11 to say that the constitution somehow changed. It did not. But it is invoked all the time to say that we should somehow accept the fact that because some Arabs committed a criminal act, some government employees (some lawyers, some not, many with low levels of education as compared to me) will be prying into our lives. Now, you are saying that because some foreign government can’t understand the concept of not torturing people based on their political beliefs, we should again change the constitution.
Why can’t we just amend the constitution. At least countries like Venezuela and Pakistan are intellectually honest enough to suspend theirs. Do we really have to concoct some elaborate system wherein Arabs and Egyptians get to overrule prior precedent?
November 13th, 2007 at 4:38 am
There is a comment on VC, which notes that the Higazy’s counseled argued for NO SEALING:
http://volokh.com/posts/1194823252.shtml#290510
November 13th, 2007 at 6:56 am
– There is a comment on VC, which notes that the Higazy’s counseled argued for NO SEALING: –
.
I posted the entire letter here, before posting the single paragraph at Volokh. See above comment in this thread.
November 16th, 2007 at 11:58 am
[…] in response to the recent firestorm over sealed documents in the Higazy case, the Ninth reassures us that it is not sealing public […]