Patterico's Pontifications

10/21/2007

Was a Passage Omitted from a Recent Second Circuit Opinion for “Security” Reasons — Or to Cover Up Material Embarrassing to the FBI?

Filed under: Blogging Matters,Court Decisions,General,Terrorism — Patterico @ 1:29 pm

Did you ever wonder what our government wants to keep secret — and what courts allow them to keep secret?

You’ll get to see one such example in this post, courtesy of Howard Bashman, the legal blogger at How Appealing.

It ain’t pretty, folks.

On Thursday, Howard noticed that the Second Circuit had posted a decision online, and then removed it. The decision related to a lawsuit brought by an Egyptian student who claimed that he had been forced to give a false confession during an interrogation after the September 11 attacks. Howard asked his readers if any of them had a copy of the opinion. A reader sent Howard a copy, and he posted it at this link.

The clerk from the Second Circuit later called Howard to say that the opinion had been withdrawn because it “might disclose” information provided under seal. The clerk said that the Second Circuit intended to repost the decision, omitting the portion disclosing sealed information. She asked Bashman to take down the unredacted opinion with the sealed information.

He refused.

Howard gave his reasons in an e-mail reproduced here. Essentially, Howard argued that nobody had explained the specific security concern to him before he posted the decision, and that there was no putting the genie back in the bottle.

So what was so secret? An anonymous source, who I’m guessing is a government official, told the New York Sun that the omitted material might put people’s safety at risk:

A source close to the case said the opinion was withdrawn because of concerns that it disclosed information that was sealed by the district court on the grounds that it could jeopardize the safety of certain individuals.

Interesting. That makes Howard sound pretty irresponsible — if you believe it. But here’s the thing: you don’t have to take the source’s word for it. Because the unredacted opinion is still up on Howard’s site — and has been for days. (This also means that, regardless of whether you agree with Howard that the genie was out of the bottle when he first posted the decision, the genie is long gone by now.)

I have found, read, and excerpted below the portion that the Second Circuit tried to take back. My judgment is that the material was sealed, not to protect anyone from harm, but to protect the government from embarrassment.

First, let’s look at the passage as it reads in the Second Circuit’s amended opinion:

[Plaintiff] Higazy alleges that during the polygraph, [FBI Agent] Templeton told him that he should cooperate . . . .

This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy’s statements were coerced.

Higazy then gave Templeton a series of explanations as to how he obtained the radio.

Here is the full passage, including the redacted information. As you read it, ask yourself why it was submitted under seal:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.” Higazy later said, “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. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

Higazy explained why he feared for his family:

The Egyptian government has very little tolerance for anybody who is —they’re suspicious of being a terrorist. To give you an idea, Saddam’s security force—as they later on were called his henchmen—a lot of them learned their methods and techniques in Egypt; torture, rape, some stuff would be even too sick to . . . . My father is 67. My mother is 61. I have a brother who developed arthritis at 19. He still has it today. When the word ‘torture’ comes at least for my brother, I mean, all they have to do is really just press on one of these knuckles. I couldn’t imagine them doing anything to my sister.

And Higazy added:

[L]et’s just say a lot of people in Egypt would stay away from a family that they know or they believe or even rumored to have anything to do with terrorists and by the same token, some people who actually could be —might try to get to them and somebody might actually make a connection. I wasn’t going to risk that. I wasn’t going to risk that, so I thought to myself what could I say that he would believe. What could I say that’s convincing? And I said okay.

Higazy then gave Templeton a series of explanations as to how he obtained the radio.

Now, you can see two things from that passage.

First, it is true that, as the anonymous source told the New York Sun, there is information that “could jeopardize the safety of certain individuals” — namely, the ages of Higazy’s family members, and the fact that his brother has arthritis. But I don’t really think that this information is that significant — or that its omission would provide a significant roadblock to security officials determined to harm Higazy’s family members.

The other thing you notice is, I believe, far more significant — which is why I put it in bold type. Namely, you have an FBI agent who admits that he threatened to ensure that a suspect’s family would be tortured by a foreign government.

Somehow, I think that’s the reason the information was submitted under seal.

UPDATE: More from Tony Mauro, the Carnegie Legal Reporting Program, Carolyn Elefant, the CBS Public Eye blog, the Wait a Second! blog, Psychsound, and the ABA Journal.

Am I the only person surprised that this hasn’t gotten much, much wider attention than that?

UPDATE x2: A concurring opinion alludes, albeit with far less specificity than the language quoted above, to the concept that the coercion in question was the threatening of the plaintiff’s family. But if the court merely wished to redact information that might endanger the plaintiff’s family, why was so much information redacted? It seems to me that a far more focused redaction of a couple of sentences would have done the trick. Perhaps the Second Circuit overlooked the material in the concurrence?

UPDATE x3: I know that defenders of the FBI might argue that the passage I have bolded above does not necessarily establish an admission by the FBI agent that he threatened the plaintiff — and indeed, the concurring opinion says that he denied it, at least at one point in time. But it seems clear to me from the bolded language in the opinion that the FBI agent knew exactly what he was doing when he talked about how the Egyptian security forces operate. And if he didn’t threaten the suspect, then why did this completely innocent plaintiff confess to owning a radio that we now know for a fact was not his?

UPDATE x4: This topic may get much wider attention now, thanks to an Instapundit link. Thanks to Prof. Reynolds. I see that Kevin Drum has taken up the thread here.

This is actually a fascinating story, not just because of the original government actions, but also because of Howard Bashman’s actions in posting the opinion — even in the face of efforts to spike it, from a representative of a court that Howard must practice in, from time to time, as an appellate lawyer. Obviously, given the nature of what the Second Circuit tried to squelch, I think Howard did the right thing here. But I can envision circumstances where it would be a much tougher ethical call. And I think that this call, as clear as it is on an ethical level, took quite a bit of courage on Howard’s part.

90 Responses to “Was a Passage Omitted from a Recent Second Circuit Opinion for “Security” Reasons — Or to Cover Up Material Embarrassing to the FBI?”

  1. Namely, you have an FBI agent who admits that he threatened to ensure that a suspect’s family would be tortured by a foreign government.

    Well, good for him!

    dave (0606c0)

  2. Here’s the story about the Higazy case, from start to finish:

    http://www.psychsound.com/2007/10/a_tale_of_two_decisions_or_how.html

    Steve (62d1ff)

  3. Your theory only works if the information was filed under seal at the direction of the FBI. If the plaintiff Higazy moved to file the document under seal, then I think that the safety concern could be valid.

    Patterico: do you know who moved to file the testimony at issue here under seal??

    Jon Mayer (e4a078)

  4. Jon Mayer,

    No, I don’t, and that’s a good point. At this point it’s an educated guess.

    Patterico (bad89b)

  5. dave, you’re disgusting. Patterico may chastise me or worse for this comment, but (I have no intention of doing this) with your attitude it would be just if someone hit you on the jaw several times smashing it and your teeth and the included nerves.

    That’s essentially what you are wishing for the man’s family.

    Christoph (92b8f7)

  6. I suspect that the depositions in which the information from the plaintiff and the agent came out, as well as any FBI 302s (memoranda of interviews) were sealed by order of court in the discovery process. The plaintiff then filed a motion for summary judgment, which seems to have been successful. The district court opinion probably cites to the information under seal, and the district court issued to forms of its decision granting summary judgment — a public document with redactions, and a sealed document with all the redacted material.

    The Second Circuit, in affirming the District Court probably mistakenly quoted from the sealed district court order granting the defendant’s motion.

    So, the source of the sealed information is probably discovey taken in the case, which, given the subject matter, was probably taken pursuant to a protective order.

    It may very well be that the plaintiff and the government agreed to the protective order for mutually beneficial reasons.

    And, keep in mind that from the facts it appears that this episode took place IMMEDIATELY afer 9/11. The facts are that the guy was in a hotel room in NY and in that room there was a device that allowed someone on the ground to speak with airline crews in flight.

    Can anyone here find the date of the FBI polygraph of this guy?

    wls (fb8809)

  7. Just so anyone is clear, my entirely over the top and evil comment is not my wish nor would I want it to happen… but it is, in graphic terms, just as horrific as the man’s voiced fears for his family members. And that you, dave, could write something to mean spirited and awful revolts me. So if for one tiny second the thought of real torture inflicted on you — something I hope never happens — caused you to feel a twinge of empathy (unlikely in your case, I know), good.

    Christoph (92b8f7)

  8. Well, that’s what I get for speculating before reading the opinion. The poly was administered in late December, and several other facts are cleared up. I’ll put up something more definitive later once I’ve had a chance to read through it carefully.

    wls (fb8809)

  9. Now on to the serious nature of this post. It sounds to me Patterico is right and this was redacted to protect the government from embarrassment. There are differences, but sounds a lot like the Arar case in Canada where our government deported an almost certainly innocent dual Canadian-Syrian citizen to the United States at your government’s insistence, knowing full well he would then be deported to Syria and tortured, which is what happened. This lead to a public inquiry and $10,000,000 CDN in compensation being paid, plus rehabilitation of Mr. Arar’s reputation.

    Where the similarities cease is this time the FBI is actually threatening someone’s family with violence, which would, technically, be meted out by another source.

    One question I have is could there have been any security concerns with the unredacted decision? Jon Mayer is getting at that in comment #4, but I’m not sure I understand his point and would welcome expansion and elucidation.

    Christoph (92b8f7)

  10. *Jon Mayer, comment #3

    Christoph (92b8f7)

  11. Funny, dave’s view was pretty much Patterico Commenter Standard (minus me and alphie) on the waterboarding thread—

    Andrew J. Lazarus (5fbe38)

  12. There is a reference in a dissent concurrence to the threat of the family being tortured — but the reference has the FBI agent denying it . . .

    Patterico (bad89b)

  13. Andrew J. Lazarus, if you cannot see the difference between using a coercive interrogation technique thousands of U.S. service members endure as part of their training, applied only to the worst of the worst of suspected terrorists themselves in order to extract needed life saving intelligence, and threatening to send a suspect’s family to actual torture, then you are an idiot or a lowlife ass — or both. I suspect both.

    So your attack on Patterico et al. is B.S. and you should be ashamed of your rotten mind.

    Christoph (92b8f7)

  14. The big difference between this case and that of waterboarding Khalid Sheikh Mohammed is in the nature of the information being sought.

    In the case of KSM, the interrogators were not looking for a confession – they knew beyond a shadow of doubt that they had the right guy, that he was indeed a terrorist, and that he was very likely to have operationally useful information; they were after that information, and they were right to use whatever means were available to get it. That would have included threats of the sort described here, if that would work. They didn’t tell him what to say, because they didn’t know what they wanted to hear. They wanted whatever happened to be true, and they couldn’t prompt him with that because they didn’t know it.

    In this case the FBI had a suspect (who turned out to be innocent), and were trying to determine whether or not he was guilty of the crime he was suspected of. They didn’t already know that. They knew what they wanted him to say, and they told him exactly what to say: that the radio was his. When you make it clear to the suspect that only one answer is acceptable, of course he’s going to say what you’ve told him to say, whether it’s true or not. Nor is a confession, even a true one, operationally useful – its only value is as evidence against the accused, and for that purpose it’s unreliable.

    Milhouse (f10fb3)

  15. Damn, Milhouse, do you swallow Ginkgo biloba and fish oil capsules all day?

    Christoph (92b8f7)

  16. See http://westernstandard.blogs.com/ for some conservative posters who think Arar is not a good guy, who think we Canadians got hustled out of $10M by a Arar who sure seems to be a con man and may even be a terrorist.

    It seems to me our Canadian drama has small bearing on this post by Patterico.

    As for “dave”, he’s just a smart-mouth looking for a reaction and probably already regrets it. Right, dave?

    As for AJ Lazarus, did lots of the conservative commenters here suggest waterboarding someone’s family? Got some cites for that theory?

    BlacquesJacquesShellacques (febd1d)

  17. The pro-Bush and pro-torture commenters (largely the same people, I deem) have one big, big problem with this case. If it weren’t for a total coincidence, Mr. Higazy would be classified as one of the worst of the worst, an active confederate of the 9/11 terrorists, on the basis of his false confession. So whatever treatment is appropriate for the worst of the worst is appropriate for him.

    So let’s ask some hard questions.

    Do you think that Higazy would repeat (perhaps even embellish) his confession with a little waterboarding?

    What do you think would happen (or indeed did happen) when KSM was asked under waterboarding “Tell us about your lookout Higazy?” You don’t think that KSM would confabulate some story implicating Higazy to get the coercion to end? And why would the interrogators ask about Higazy? Why, because they already had Higazy’s confession in hand. Torture creates its own justification.

    The people who should be ashamed are the war criminals who instituted torture as SOP in our interrogations, and the fools who concoct inconsistent excuses for them. Torture produces false positives. You can embrace that, or you can wander through pathways of illogic trying to understand why Higazy shouldn’t be treated as the terrorist he confessed he was.

    Andrew J. Lazarus (4bc9b4)

  18. “Ve know you haff family in der old country.”

    nk (da3e6b)

  19. And, keep in mind that from the facts it appears that this episode took place IMMEDIATELY afer 9/11. The facts are that the guy was in a hotel room in NY and in that room there was a device that allowed someone on the ground to speak with airline crews in flight.

    Well, that’s no so much a “fact” as the false claim by the hotel employee, who ultimately pleaded guilty to lying about the radio. (The FBI agent didn’t know that at the time, of course.)

    David Nieporent (3c6bd4)

  20. Amusingly, for those who want to support their exaggerations about torture with this case, the reality is that by the facts recited by the Second Circuit, Hizgazy made his “confession” under the same general kind of verbal pressure made by police officers daily in the United States. The implication of unpleasant consequences in the absence of cooperation. The only difference here was that the FBI agent threatened to have Hizgazy sent to Egypt rather than implying that a defendant’s criminal associates might learn of the defendant or a gang member might be exposed to danger from other gang members.

    There was no actual physical abuse of any kind much less actual torture.

    This is how far the BDS sufferers have gone to poison the well with fraudulent arguments.

    SPQR (6c18fd)

  21. It seems to me our Canadian drama has small bearing on this post by Patterico.

    There are more differences than I noted, as I noted, but the similarity is the government using threats of — or in Canada’s case, the reality of — torture against persons. This is different than waterboarding, which is not torture. Would I submit to being in a Syrian prison tortured by them? No. Would I submit to my family being tortured by Egytpian security officers? No. Would I submit to waterboarding for training purposes? Yes.

    Christoph (92b8f7)

  22. Amusingly, for those who want to support their exaggerations about torture with this case, the reality is that by the facts recited by the Second Circuit, Hizgazy made his “confession” under the same general kind of verbal pressure made by police officers daily in the United States. The implication of unpleasant consequences in the absence of cooperation.

    Threatening to subject family members to harm is not a tactic you would typically expect to see in an interrogation.

    Patterico (bad89b)

  23. That’s why the FBI agent can be sued: because the other players in the system would assume that the coercion had not been coerced.

    Patterico (bad89b)

  24. Patterico, and yet implying that such a consequence could arise from a lack of cooperation happens frequently.

    SPQR (6c18fd)

  25. What’s your evidence of that?

    Patterico (bad89b)

  26. I’ve heard cops saying: “If you lie, you’re done” and “Juries hate lies” and the like.

    That’s not the same thing.

    Patterico (bad89b)

  27. Just so anyone is clear . . .

    Oh, can it, you canadian gasbag! You’re well known for your empty threats indicative of men who have small wieners.

    dave (0606c0)

  28. It is less than an empty threat because it isn’t even a threat. I would not want this to happen to you. I would probably, depending on the tactical situation, engage someone who maliciously attempted to do that to you were I there at the time.

    What it is is pointing out just how awful is your statement. These are the man’s parents and sister and you can write such a hateful thing. The hateful thing — and I pointed out while writing it it is not sincere — I wrote was by way of example. Was it the best way of making the point? I doubt it, but it was one of them.

    Christoph (92b8f7)

  29. Patterico, I’ve myself seen one case with an investigator clearly implying to a suspect that family members would be in danger from the suspect’s associates in the absence of cooperation.

    Here the FBI agent’s threat of harm as a direct consequence of the agent’s action is especially egregious. But my point is that in the law enforcement context, an officer’s verbal threats of consequences have resulted in “false” confessions before and will again. While this is example of FBI thuggery, it is not relevant to an argument about torture, or the falsely equated “waterboarding” or even the lesser tactics of uncomfortable accomodations, lighting etc.

    SPQR (6c18fd)

  30. Gasbag: Not a day goes by where you don’t physically threaten someone you disagree with — give it a rest. And again, we had just lost almost 3000 American lives. I don’t give a crap that he felt his family was threatened. Let him take it up with his own government.

    dave (0606c0)

  31. I think Milhouse #14 nailed it. There’s a big difference between trying to obtain information which will be useful in the war and trying to coerce a confession to be used as evidence in a criminal case. Viewed most charitably, this FBI agent was a waste of the taxpayers’ money.

    nk (da3e6b)

  32. Well, dave, you are definitely showing that you are an evil asshole… since you don’t care if a man’s elderly parents and sisters be tortured.

    While I do not wish it would happen to you, the torture you wish upon them would be just if applied to you.

    Christoph (92b8f7)

  33. From my perspective, Milhouse nailed it.

    My personal thoughts lead me to think the FBI agent got way ahead of himself.
    The agent needed to verify a lot of details before coming up with that kind of threat.
    It would have been another thing entirely if the agent had found conclusive evidence (cell phone records, photos of subject and other known terrorists) and the subject was shown to be lying about an event where hundreds of lives were threatened.
    So at that point I’d have been OK if the agent would have gone up the ladder to bring in a team with the authority and evidence to say “fine, talk to me or I send you home to your family in Egypt and let your home country deal with you”. This wasn’t the case and the agent got way way ahead of himself.
    Same would go for waterboarding.
    No point in waterboarding some random Egyptian guy without tons of evidence that shows that he is a major player in an urgent event.

    There would be at least two reason at least why I am against premature application of coericive techniques.
    Number one would be because it is wrong to do those kinds of things to an innocent (not always in the American court of law sense) person, so some pretty serious standards of corroboration need to apply here.
    Number 2. Mistakes hurt the overall public good, not just the individual and take away what should be a very little used but pinpoint tool.

    I think the same standards are required in spying. If I call my sister in India on her new cell number that coincidently was previously used by a terrorist and I say some trigger phrase… I do expect the agents that start to look at me would maybe check into the rest of my life first and get some sense of context into who I am and what my sister is actually doing in India (working for a faith based NGO providing services to the poorest of the poor) before threatening to have the Indians hook her up to a car battery unless I “talk”.
    I’m not big on bring lawsuits, but I’d sue for sure.

    SteveG (4e16fc)

  34. I agree that Milhouse nailed it.

    Christoph (92b8f7)

  35. Patterico, I’ve myself seen one case with an investigator clearly implying to a suspect that family members would be in danger from the suspect’s associates in the absence of cooperation.

    How does that show it happens frequently?

    Patterico (bad89b)

  36. The telling point about this story is that the asshole FBI agent took the true-blue American hotel employee’s lie as gospel and disbelieved the swarthy mud-person. Maybe the TSA is right to strip-search Norwegian nuns.

    nk (da3e6b)

  37. This was right after 9/11, NK. I bet they jumped at everything.

    DRJ (35ac59)

  38. Hi, DRJ. I’m in the anti-authoritarian swing of my cycle. ;) I believe you linked an article recently where an FBI agent was quoted: “The biggest problem with police officers is that we have to choose them from the human race.”

    nk (da3e6b)

  39. Moi? I didn’t notice that quote if I did. I’m more of a local government, states’ rights-type person. Anyway, aren’t all good defense counsel zealously anti-authoritarian?

    DRJ (35ac59)

  40. Are you kidding me again?

    DRJ (35ac59)

  41. No. I believe it was in your post about the Wisconsin deputy shooting. I’ll try to find it. Sorry if I misattributed it.

    Err … what do you mean by “Are you kidding me again”?

    nk (da3e6b)

  42. “Did you ever wonder what our government wants to keep secret…”

    Yes, Patrick, I have. Many times.

    I wondered, for instance, immediately upon first hearing about the Kathryn Johnston matter.

    Billy Beck (88ce8a)

  43. Ah, Billy Beck’s back. The hero who told the truth about Kathryn Johnston and was instrumental about putting those crooked cops in jail? Nope. It was police and prosecutors who did that. Billy just likes to go around telling people they were wrong in their first impression.

    nk (da3e6b)

  44. NK #41:

    Err … what do you mean by “Are you kidding me again”?

    You are adept at clever and well-timed sarcasm, but sometimes it sails right past me when I’m online.

    DRJ (35ac59)

  45. But even I caught it in your #45. Touche.

    DRJ (35ac59)

  46. Threatening to subject family members to harm is not a tactic you would typically expect to see in an interrogation.

    It’s perhaps not typical, but I would not be surprized at it in the USA.

    For those of you offended at that statement, well, tough; it has gone around, you didn’t stop it, and now your non-acceptance falls on somewhat deaf ears. It’s not illegal, and there are prosecutors who don’t consider it to be immoral. I don’t know what those prosecutors writing here think or feel about such legally allowed threats. (Patterico seems to think that it should not be concealed in the fashion that it was.)

    htom (412a17)

  47. (Patterico seems to think that it should not be concealed in the fashion that it was.)

    There’s no question I feel that way. Under the facts of this case, an FBI agent allegedly coerced a confession from a suspect, and the confession (and various contradictory statements also elicited by coercion) were presented to the court as a justification for holding the suspect in custody. If the court had known the true circumstances of the confession — assuming that it was indeed obtained by coercion, something that the opinion assumes to be true without deciding, and something that I believe to be actually true based on all the circumstances — then the court might have come to a different conclusion on holding the suspect. In essence, a fraud was perpetrated on the court, and you bet it should not have been concealed.

    Patterico (bad89b)

  48. It’s perhaps not typical, but I would not be surprized at it in the USA.

    What country would you be surprised at it?

    nk (da3e6b)

  49. “Ah, Billy Beck’s back. The hero who told the truth about Kathryn Johnston and was instrumental about putting those crooked cops in jail? Nope. It was police and prosecutors who did that.”

    It was the informant who did that.

    You can sit down and be quiet, now.

    Billy Beck (88ce8a)

  50. Allowing comments on your blog yet, Billy?

    nk (da3e6b)

  51. You can sit down and be quiet, now.

    Heh. Billy Beck is trying to give orders to other commenters.

    nk, you can STAND UP AND BE HEARD, BABY!

    Patterico (bad89b)

  52. Nice to see the Constitution put in an appearance.

    alphie (99bc18)

  53. Nice to see the Constitution put in an appearance.

    And you never pass up a chance to employ your First Amendment right to demonstrate your lack of any logic, facts, reason or ethics.

    Paul (d71395)

  54. Patterico has a hard time defining trolls but I believe Billy qualifies.

    nk (da3e6b)

  55. Belguim?

    Ryan Waxx (fdc68d)

  56. Patterico has a hard time defining trolls but I believe Billy qualifies.

    Billy fancies himself a tough guy . . . on the Internet.

    Patterico (bad89b)

  57. Billy fancies himself a tough guy . . . on the Internet.

    Yep, it’s easy to be mighty brave in cyberspace.

    Paul (d71395)

  58. We’ll match him with some Canadian. ;)

    nk (da3e6b)

  59. “Namely, you have an FBI agent who admits that he threatened to ensure that a suspect’s family would be tortured by a foreign government.”

    I think that is an exaggeration.

    edh (aaa9b1)

  60. “Allowing comments on your blog yet, Billy?”

    Absolutely not. Never, ever. Not from day-one, just exactly like I said when I launched the thing five years ago. What’s your point?

    “Billy fancies himself a tough guy . . . on the Internet.”

    {snicker} Yeah, not like you, Patrick. I don’t have that patented prosecutor’s swagger at, say, sneering at an innocent old woman defending her home from animals.

    That’s pretty “tough”, and it’s the damned truth: I can’t match that.

    Billy Beck (88ce8a)

  61. Absolutely not. Never, ever. Not from day-one, just exactly like I said when I launched the thing five years ago. What’s your point?

    That you’re gutless?

    Patterico (bad89b)

  62. You know I think all this points out why confessions are so pernicious.

    Or why “we can give you a misdemeanor if you tell us who really committed the felony”.

    Forensic evidence. Only. Testimony only considered valid if it leads to forensic evidence.

    FWIW Jewish law does not allow confession alone as valid for punishment. “I was selling kilos” should only be good if there is forensic evidence of such sales. Video tape. Caught with kilos. etc.

    Other wise police will try to close a case the easy way. Get a confession. Case closed.

    As some one pointed out: it happens every day in America. Is such SOP really a good thing?

    We do actually have enough police to do things right. It is just that they are so busy enforcing prohibition that there is no time to collect evidence. When was the last time police dusted for prints in a burglary?

    BTW illegal drugs fill the same brain receptors as legal drugs. The only difference: the impramateur of the medical cartel.

    Class War

    M. Simon (d55893)

  63. As I recall, the basics of this story were widely reported at the time. Hotel room with Egyptian and radio; Arrest and interrogation; Pilot coming forward and saying the radio was his. Release of Egyptian.

    Since there was no harm, no foul, I’d cut the FBI some slack here, if the interrogation was on 10/12/01 or thereabouts.

    If it occurred around 12/10/01 or afterward, when the 9/11 upset had subsided a bit, I might be more critical of the Feebs.

    No need to re-write history.

    DonnieR (90a264)

  64. What do you think would happen (or indeed did happen) when KSM was asked under waterboarding “Tell us about your lookout Higazy?” You don’t think that KSM would confabulate some story implicating Higazy to get the coercion to end?

    How would he know who the hell Higazy was? Higazy was innocent, remember. He might spin some random tale about someone called Higazy, but it wouldn’t bear any relationship to the person himself.In any case, you would never ask that kind of question; you might say “tell us about your lookout at the hotel”, and wait for him to give Higazy’s name without being prompted. Or you might say “tell us about the Egyptian” without giving him any clue who that was or what he was suspected of, and see whether he gave a sensible story that fit with the other evidence.

    Milhouse (f10fb3)

  65. Well, it wasn’t a very good comment thread to start with, and then… Billy Beck cited another example of what our government, (including our outstanding justus system), attempts to keep secret; Their agents evil doings.

    Then the cackling hens started up, apparently in an attempt to prove they are the “real” tough guys and not just “gutless” turd lickers. Keep up the effort.

    Yawn (3f44e3)

  66. Did that make any sense to anyone?

    Take it to Billy Beck’s comment section.

    Oh, that’s right. You can’t.

    Patterico (bad89b)

  67. Christoph, Dave approved of the FBI agent threatening a suspect and you accused him of approving of the actual torture of the suspect’s family. It sure is easy to win arguments when you can make up the most heinous positions for the other side, isn’t it? With your fondness for making up straw men to argue against, you really ought to be a leftist.

    And you ought to be glad that threats are actually not as bad as the deed, or you would be a murderer.

    I’m with Dave. I don’t have a big problem with FBI agents making veiled threats against a terror suspect’s family. The threat harms no one except the suspect himself and that harm is fleeting. Of course I wouldn’t want the courts to accept a confession that was coerced by specific and believable threats against the suspect’s family, but that’s another issue. During the investigation of an act of war, when Americans are still potentially in grave danger, a bit of license is acceptable if it is only used to catch other bad guys and not used to convict the suspect.

    Doc Rampage (ebfd7a)

  68. This is a great find by Patterico. The next step is to discuss in a broader sense, the specific and serious problem that we as a nation have with classification and secrecy, and the government’s power to classify and redact on a whim for reasons that are obviously not always related to protecting assets.

    I mean, seriously. Is anyone here capable of even coming up with something plausible about how this classification is meant to protect a source? There’s no source here! Just an illegal, immoral false confession.

    This country needs some kind of check and balance – like a federal judiciary branch, appointed for life, to approve classification of *everything*. – and reject it when it’s frivolous.

    Although, given the 2′nd circuit’s actions here, that may not be good enough either.

    glasnost (7349ee)

  69. It’s too far into the thread to matter much, but I’d like to try a different line of analysis. I agree with Patterico (if we have the facts right) that the opinions should have been published with the facts as they were. But I think the FBI agent may not have been so totally in the wrong.

    First thought experiment: Suppose that the agent had never mentioned the possibility of sending Higazy (or their suspicions about him) to Egypt, but Higazy had realized it himself. It was a real possibility, right? I think in that case the confession would have been just as much coerced, and the court would have been right to disallow it, but we would not be blaming the FBI.

    Now, was the agent so wrong to warn Higazy of the hazard? After all, passing the info to Egypt without warning might have been even nastier. From the sound of it, the agent was way too threatening, but that would be a matter of style and bad practice, not a top-level offense. By this analysis, the coercion comes from the actual awfulness of the Egyptian security force, not the agent’s reference to it.

    There is the possibility that we (the US) should avoid ever sharing suspicions with Egypt, and make a public point of it, and emphasize the policy to Higazy in order to remove that source of coercion. Perhaps Higazy should have been given assurances in this instance. But that can’t always be a good policy, can it? Egypt isn’t the heart of darkness, it’s just a third-world country with some seriously lower standards. We need to cooperate with them all the time over ordinary crime as well as terrorism. When we have evidence that one of their nationals (was he?) has committed a serious crime with international implications and appears not to be cooperating with police, one of our options has to be to share our information with Egyptian security. Unless we forswear that option in all cases, someone like Higazy will worry about it and be coerced, and a court will have to rule a confession inadmissable.

    The root cause of Higazy’s difficulty was that, however innocent he was, unlucky circumstances made him appear to be guilty. The FBI might have been smart enough to recognize the truth, but this time they weren’t. Egypt’s bad practices made the result worse, and so did the agent by using them as a threat. And so did Higazy by not sticking with the truth. But most of the damage was fairly attributable to misfortune and mistake, not scandal.

    Walter S. (f484aa)

  70. Well then, I guess the national police force of the United States should just be allowed to threaten families of suspects with torture at the hands of others. What was I thinking? It’s all good.

    Christoph (92b8f7)

  71. Texas should move to make this opinion part of the record in the Medellin case in support of the proposition that consular notification is not always a good thing.

    nk (da3e6b)

  72. Thank you for the post Patterico. Not only torture itself, but the mere threat of torture can generate false confessions.

    Psyberian (9a155b)

  73. Well, dave, you are definitely showing that you are an evil asshole… since you don’t care if a man’s elderly parents and sisters be tortured.

    Oh, give it up already. And seek psych help. You’re manic posting and constant physical threats and insults are signs that something is not right with you.

    dave (0606c0)

  74. I just thought it might be helpful to point out the horror-story association: Stephen King’s Firestarter, page 387. (Search for “relatives in the old country”).

    Tom Myers (4c5e15)

  75. I saw it in a pre-Pearl Harbor Stalinist propaganda movie (may have been by Otto Preminger) when Hollywood was trying to incite America to go to war against Germany in defense of the Soviet Union.

    nk (da3e6b)

  76. Good on you, Patterico. But your rep is in jeopardy, cuz Greenwald just approvingly linked to you.

    Mona (cb6823)

  77. Patterico,
    There is nothing wrong with threatening a suspects family. And yes, it is done all the time. Sometimes the threat is simply “We’ll go after your brother for tax fraud.” That is how they got Tom Campano to cooperate.

    Now, actual confession obtained this way are meaningless however if verifiable information is obtained, that should be useful in a court of law.

    Lefty (e487fb)

  78. Well, Lefty, the point here is that confessions obtained by coercion cannot be used against the suspect in a court of law, as you concede — yet here, one was . . . without the court’s knowing it was coerced.

    Patterico (1f3cc9)

  79. Apples and oranges, Lefty. That’s how the government got the Fastows to cooperate in the Enron prosecutions. It offered them the choice to leave their children parentless for a few years or to cooperate and get staggered sentences. You may agree with me that that’s a little bit of “dirty cricket” but it was all open and well-known and any judge could have nixed it at any time. Here, we have a judge saying he was lied to and misled into depriving a man of his freedom.

    nk (da3e6b)

  80. Patterico,
    You have a good point there, and unfortunately I believe that it happens much to often.

    And yes, nk, it becomes a big problem when a prosecutor or FBI agent lies to a judge.

    Lefty (e487fb)

  81. re: “There are differences, but sounds a lot like the Arar case in Canada where our government deported an almost certainly innocent dual Canadian-Syrian citizen to the United States at your government’s insistence, knowing full well he would then be deported to Syria and tortured, which is what happened.”

    Arar was not deported from Canada. He was snatched at JFK airport on a trip from Egypt to Canada. The RCMP/CSIS gave erroneous evidence that he *was* a terrorist, so the FBI deported him, NOT to the country of his citizenship and residence, Canada, but to Syria. He had been held for 2 weeks and denied legal assistance. Notwithstanding a complete lack of evidence of meaningful links to terrorists and statements by Canada and Syria, he is still watchlisted by the US. He is sueing the US for that and other damages.
    I think that the award made to him to settle the lawsuit against Canada was rather high, but then I have never been tortured for a year as a result of some nameless functionary’s negligence and indifference. Had it happended to me, I might want more than $10Mill…maybe someones balls for my cufflinks…

    nebury (9dfcf1)

  82. “That you’re gutless?”

    I’m not the one dodging the principles in this, Patrick. Play it anyway you want to — to include your moaning about my blog — but that’s not going away, and there are people watching this who have enough of a brain in their heads to grasp the big picture.

    Billy Beck (88ce8a)

  83. There’s one hole in Milhouse’s analysis.

    Under coercion, detainees will say anything to make the coercion stop.

    A question like “How would KSM know to finger Higazy when he didn’t know Higazy’s name” is ridiculous as can be seen from the facts of this case. How did Higazy know to confess to having a radio in his room when he didn’t? (The radio was in another room.) He picked up from the interrogator what he was supposed to confess to. And remember, this is not a story about natural checks and balances. This is a story where a miscarriage of justice (imprisonment, rendition and torture, etc.) was avoided mostly by luck.

    Likewise, KSM under waterboarding would pick up the clues about what he was supposed to confess to, just like innumerable victims of torture (excuse ne, coercion) all over the world. The pro-torture narrative incorporates some easily falsified assumptions: first, that even conceding that KSM was absolutely known to be a bad guy, interrogators will be able to distinguish when, under “coercion”, he exhausts the true information he knows and starts confabulating, guessing what the interrogators want to here. The second is that the interrogators even care about whether the information they are getting from the detainee is correct. The Higazy case makes clear that the answer is “Not so much”. Why would that be? Well, if the detainee is guilty, then the interrogators are hidden heroes, doing the secret dirty work necessary to save all the wussies who would condemn them if only they knew…. If the detainee is innocent, then the interrogators are just a bunch of government-paid criminals. Which way do you think the investigation will unfold? You don’t have to guess the (easy) answer to this question because the Higazy case gives you the answer.

    Andrew J. Lazarus (7d46f9)

  84. AJL’s psycho sexual fantasies are alive and kicking again today folks:

    “The second is that the interrogators even care about whether the information they are getting from the detainee is correct.”

    All our interrogators just want to inflict physical and mental anguish for sheer pleasure according to AJL’s theory or the talking points he’s read.

    In his intellectual dishonesty he also conveniently ignores that false positives are also generated in noncoerced interrogations. Spin, Andrew, spin.

    daleyrocks (906622)

  85. Quiz for daleyrocks: did the FBI care about whether the confession they coerced from Higazy was true?

    I don’t think so. Unless and until daleyrocks can argue otherwise, his sarcastic remarks founder on the facts at hand.

    Andrew J. Lazarus (7d46f9)

  86. AJL – Don’t you have to ask the FBI your sarcastic question rather than me?

    Aren’t you embarrassed to buy into the John Kerry school of the military being a bunch of sadistic dumb killbots stereotype that has branded the left in this country, Andrew?

    daleyrocks (906622)

  87. I don’t have a big problem with FBI agents making veiled threats against a terror suspect’s family. The threat harms no one except the suspect himself and that harm is fleeting

    It might be argued that when someone is harmed, coerced let’s say (who but he would be hurt if let’s say his pinky was broken? you know, even if he worked with his hands, it would heal pretty fast, and he was in custody for awhile anyway), others are harmed. Do we have such rights only for the self-benefit of the person targeted or to secure against gov’t overreaching generally?

    Likewise, if you are told that your family is in danger, how exactly is the harm “fleeting?” The prevalance of rendition and the like suggests (surely as to reasonable assumption) the U.S. could do somethng like that. An innocent person was seized here after all. The net result will be long lasting mental anguish, the person never totally being secure.

    “Fleeting” huh? Don’t think so. Good find P. btw. I actually read the redacted opinion and recall the reference and finding out the redacted portion is interesting.

    joe (c36902)

  88. Walter S.: But I think the FBI agent may not have been so totally in the wrong.

    However, the security agent who redacted the opinion evidently did think that the FBI agent was in the wrong. Otherwise, if the censor thought that the part about the coercive threats against Higazy’s family was acceptable, why would he have blacked out that particular section of the opinion?

    W. Kiernan (313cab)


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