The Higazy case has been diaried here, and blogged here, and even described in the Washington Post, but a critical aspect has been inadequately studied: Why is the Second Circuit Court of Appeals trying to suppress a story embarrassing to the Bush administration, and by what authority?
I will argue that neither national security nor the "sealing" of the case can explain or justify what the Second Circuit did.
The facts are simple: the FBI allegedly coerced a confession from an innocent Egyptian student by threatening to have the student's family tortured. But the Second Circuit Court of Appeals, after recognizing that the student had asserted a valid 5th Amendment claim, withdrew its opinion and substituted a new version that did not describe what the FBI actually did...
Thanks to the Internet, we can compare the original opinion with the redacted version.
A brief summary:
Higazy was an Egyptian student staying at the Millenium Hotel near the World Trade Center on September 11, 2001. Hotel security claimed they found an aviation radio in Higazy's room. The FBI questioned Higazy, guessing he might somehow have been communicating with or aiding the 9/11 pilots. Higazy denied he owned the radio.
The FBI wanted Higazy detained as a material witness, but the federal judge allowed only a 10-day detention, because the evidence suggesting Higazy's involvement in 9/11 was not very strong. On the 9th day, an FBI agent conducted a polygraph test during which, according to Higazy, the agent told Higazy that unless Higazy confessed to owning the radio, they would "make sure that Egyptian security (gave) his family Hell," which both parties understood to include torture. Higazy confessed to owning the radio. A criminal complaint was then filed against Higazy, and he was detained without bail.
Approximately three weeks later, the airline pilot who actually owned the radio returned to the Millenium Hotel to reclaim his property, which he had left at the hotel. Two days later, Higazy was released after spending a total of 34 days in custody.
Or so said the Second Circuit's original opinion. But then the Court withdrew its original opinion and issued a new version omitting only the account of how the FBI allegedly coerced Higazy's confession (by threatening his family).
According to the Court, the underlying facts of the case had been placed under seal, and therefore could not be disclosed. This begs the question of why the facts were sealed, and whether they should have remained under seal.
We are used to hearing from the Bush administration that interrogation techniques must remain secret, so that their effectiveness not be impaired. However, in this case, it is clear that threatening to have a suspect's family tortured is neither an interrogation method worthy of keeping secret, nor one that might be impaired by disclosure. More obviously, the facts reflect an embarrassing abuse of authority by an administration under fire for such abuses.
And yet, not only were these facts (and presumably others) placed under seal originally, but the Court specifically reaffirmed the secrecy of these particular facts by issuing the redacted opinion.
It is therefore important to understand when a Court is authorized to seal the proceedings before it, and when such sealing constitutes an abuse of discretion.
I searched the Federal Rules in vain for guidance as to when or how Courts may issue an order to seal its proceedings. Then I found this commentary posted on the federal judiciary's website:
Judges have broad discretion under the Federal Rules to issue orders that protect case-related information from unauthorized disclosure. See Fed. R. Civ. P. 26(c) (protective orders). The Federal Rules, however, do not articulate standards for deciding motions to seal or unseal case file documents. [emphasis added]
In other words, the federal court that sealed and refuses to unseal these proceedings is not compelled by any rule or statute. Instead, the court is moved by its belief that the public should not be allowed to know how the FBI has been operating.
There is actually no resisting the conclusion that the Court is acting of its own volition. The Washington Post:
According to Catherine O'Hagan Wolfe, clerk for the appellate court, 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.
What does the Court say it is protecting?
Wolfe said the redacted information was originally sealed for the safety of Higazy and his family.
That is highly implausible. Higazy's interest would be advanced by getting his story out, and there is no indication that he requested the seal. In fact, Higazy seems to have been interviewed on CBS' 60 Minutes, where he told the whole story.
For the same reason, national security can't be the issue: the transcript of Higazy's 60 Minutes account includes the relevant details and more, and has been posted on the Internet for more than three years.
It is hard to accept any argument based on national security, protecting the parties, or protecting the proceedings -- instead, the inevitable conclusion is that the federal court is protecting the executive branch from political embarrassment. Certainly the recently diaried developments in efforts to improve judicial accountability are not encouraging.
If any attorneys or law students know of any case law governing the standards by which sealing or refusing to unseal a court proceeding may be an abuse of discretion, please share that in the comments.