Remember the Higazy case, in which the Second Circuit tried to withdraw an opinion that mistakenly revealed material filed under seal — material embarrassing to the government, because it revealed that an FBI agent had threatened an innocent man’s family in Egypt?

Via cbolt in comments at Volokh comes evidence that the sealed material in the Higazy case was sealed at the request of the government, and not Higazy. It turns out Higazy’s lawyer wrote Judge Rakoff in 2002 and said:

Dear Judge Rakoff.

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.

This is a well established principle of our body politic and system of jurisprudence. It is only in exceptional instances which have been clearly identified and firnily rooted in our system of justice, that this rule does not apply. The government has failed to provide any authority to support continuing the shroud of secrecy currently blanketing the matter.

. . . .

[T]he events which have unfolded . . . are of great importance to the American public, as it concerns how our government has gone about its business investigating this case. I truly believe that there are valuable lessons to b[e] learned from an examination of the investigation herein and public discourse thereof.

Clearly, none of this can occur in a vacuum, therefore, it is imperative that the facts of this come to light. I trust this Court will do what is just and proper, and unseal the subject material herein.

Sincerely yours,

[Signature]

Robert S. Dunn

So, although the Second Circuit may have acted on its own in trying to withdraw the opinion that revealed the sealed material, it was obviously sealed to begin with at the request of the government.

Color me entirely unsurprised.

I agree with Jonathan Adler:

I agree that there are [often] 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.

Yup.