Tuesday, October 23, 2007

Judicial Opinions and National Security

Tomorrow I am going to hear oral argument in the Second Circuit in the Cablevision case. The argument is at 4;15 pm, in the 9th floor ceremonial courtroom in Foley Square. The panel consists of Circuit Judges Walker, Sack, and Livingston; each side has 12 minutes. I have been in that courtroom many times; the setting is one of ceremonial grandeur, intended to impress one with the majesty of the law. The courtroom is open to all and the court's opinions are open to all to read. Such openness fosters respect, hopefully, but true respect comes from the caliber of the judges and their reasoning. The court's questioning at argument can give a clue about where they are going or not; we have to wait for the opinion to see.

I mention these trite points because of an extraordinary series of events involving a Second Circuit opinion that was recently released and then redacted. The events and some of the history of the court's actions are told here in the Psychsound blog. Here is a summary from that blog:

Egpytian national, Abdallah Higazy, was staying in a hotel in New York City on September 11 and the hotel emptied out when the planes hit the towers. The hotel later found in the closet of his room a device that allows you to communicate with airline pilots. Investigators thought this guy had something to do with 9/11 so they questioned him. According to Higazi, the investigators coerced him into confessing to a role in 9/11. Higazi first adamantly denied any involvement with 9/11 and could not believe what was happening to him. Then, he says, the investigator said his family would go through hell in Egypt, where they torture people like Saddam Hussein. Higazy then realized he had a choice: he could continue denying the radio was his and his family suffers ungodly torture in Egypt or he confesses and his family is spared. Of course, by confessing, Higazy's life is worth garbage at that point, but ... well, that's why coerced confessions are outlawed in the United States. So Higazy "confesses" and he's processed by the criminal justice system. His future is quite bleak. Meanwhile, an airline pilot later shows up at the hotel and asks for his radio back. This is like something out of the movies. The radio belonged to the pilot, not Higazy, and Higazy was free to go, the victim of horrible timing. Higazi was innocent! He next sued the hotel and the FBI agent for coercing his confession. The bottom line in the Court of Appeals: Higazy has a case and may recover damages for this injustice.

I well remember this story when it happened, along with the one about the guys pulled off a train because they had box car cutters and their bodies were shaved. There was hysteria in NYC and the country at the time, and I won't second guess what the FBI agents did. But we might second guess what the Second Circuit just did in its opinion in Mr. Higazy's case. Here is where the story picks up again from the Psychsound blog:

As I read the opinion I realized it was a 44 page epic, too long for me to print out. I blogged about the opinion while I read it online and then posted the blog as I ate lunch. Then something strange happened: a few minutes after I posted the blog, the opinion vanished from the Court of Appeals website! I had never seen this before, and what made all the more strange was that it involved a coerced confession over 9/11. What the hell was going on? I let some other legal bloggers know about this, particulary the How Appealing blog and Appellate Law and Practice. They both ran a commentary on the missing opinion. Then someone sent How Appealing a PDF of the decision (probably very few of them were floating around since the opinion was posted for a brief period of time) and How Appealing posted the decison. Then things got even stranger. The Court of Appeals actually phoned How Appealing to request that he remove the opinion from his website since it contained classified information. The Court said that a revised opinion would come out the next day without the classified information. How Appealing actually refused to remove the opinion. Through it all, hundreds of people came to my legal blog to see my summary of the opinion. It was either my blog or printing out and reading a 44 page epic. The next day, the Court of Appeals reissued the Higazy opinion. With a redaction. The court simply omitted from the revised decision facts about how the FBI agent extracted the false confession from Higazy. For some reason, this information is classified. Just as the opinion gets interesting, when we are about to learn how an FBI agent named Templeton squeezed the "truth" out of Higazy, the opinion reads at page 7: "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.
The Patterico blog, has helpfully done a side by side:

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.”

Mr. Patterico and others have concluded that the redaction was done not to prevent the disclose of confidential information, but to avoid the government from embarrassment. Readers will decide for themselves. Some readers may not fault the Second Circuit for not second guessing the government about what is confidential, while others may conclude that the courts, as allegedly an independent, co-equal branch of government, have to exercise their own judgment about the law, in order that be majestic and not just have the trappings of majesty.

1 comment:

aj said...

The means of coercion is so central to the story that this redaction is unconscionable. I have to wonder if the court who hears the coming trial will follow this court's lead, as the means will certainly be the main course in that action. I have a hard time separating threats to effect foreign torture of a suspects family from threats to perform the acts oneself, as the power to affect implies complicity. This is wrong on several levels. Thanks for bringing this up despite it being an outlier to the usual subject matter.

btw, slight typo: in order that be majestic and not just have the trappings of majesty.