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The clerk from the Second Circuit later called Howard to say that the opinion had been withdrawn because it “might disclose” information provided under seal.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A source close to the case said the opinion was withdrawn because of concerns that it disclosed information that was sealed by the district court on the grounds that it could jeopardize the safety of certain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.
