Individuals' Allegations of What Our Government Did to Them Are Not "Classified" Information

Marty Lederman

Or they shouldn't be, anyway.

I've written about this twice before, in connection with the Majid Khan case. But I've been slow to connect the story to the fascinating and disturbing events involving the Second Circuit's attempt to suppress allegations of governmental misconduct in the Abdallah Higazy affair. (Thanks to Jonathan Adler for prompting me.) The story has been recounted at length on several other blogs, especially on Howard Bashman's How Appealing. The short version of the story is this, derived from the summary provided by Steve Bergstein:

An Egpytian national, Abdallah Higazy, sued an FBI agent for having violated his Fifth Amendment right against self-incrimination. The district court dismissed the claims, and the U.S. Court of Appeals for the Second Circuit reversed, in part, thereby reinstating the suit.

Higazy was staying in a hotel in New York City on September 11, 2001, and the FBI came to suspect (mistakenly) that Higazy had something to do with the attacks of that day. Higazi alleges that the FBI coerced him into falsely confessing to a role in the attacks. What was the nature of the coercion?: Higazy claims that the FBI agent "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.'" This was a serious threat, because Higazy well knew that the Egyptian authorities regularly engage in torture and other horrible acts. As Higazy explained: "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."

Faced with this threat of harm to his family, Higazy confessed, even though in fact he had no connection to 9/11.

How do we know all of this? Because it was in the court of appeals' opinion, posted by Howard Bashman the day it was issued. Apparently, however, the government had persuaded the court to seal Higazy's allegations of the FBI's threats. And so the court quickly pulled its original opinion, replaced it with a redacted version that omits the described threats ("This opinion has been redacted because portions of the record are under seal."), and asked Bashman to take down from his site the earlier version of the opinion. To his credit, Howard refused, in part because the court failed to provide him with any explanation of why the publication of the opinion is a threat to national security.

The story about the publication, redaction, and attempted suppression, of the court opinion is, of course, very interesting and important in and of itself.

But let's not lose sight of the more fundamental problem: What was the justification for the court "sealing" Higazy's allegations in the first instance? I am aware of no doctrine in law, or other policy, that permits the FBI or any other law-enforcement or intelligence agency to prevent individuals from describing how they were treated by our government. [UPDATE: I am grateful to those who have brought to my attention the fact that we do not know for certain whether the FBI insisted on the sealing of Higazy's allegations. I am informed (although I have not confirmed) that the sealing order, whatever its scope, was effected with the consent of all parties.] The fact that the FBI's conduct here was plainly unlawful if Higazy's allegations are true only makes matters worse, since the government should not be able to classify its illegal conduct. But even if the threat had been a lawful interrogation technique, since when can the government insist that you must keep secret what they do to you?

A similar issue is now being litigated in the context of various recent laws that prohibit phone companies and other corporations from revealing that the government has served them with National Security letters requiring production of customer records. One district court recently declared such a gag order unconstitutional, in a case that bears watching.

This is, I think, an ominous development -- the increasingly common notion that the government can insist that no one be permitted to publicly disclose what they know about how the government itself investigates crimes and terrorism, and how it treats those suspected of wrongdoing. Am I missing something? Is there some important historical precedent for this?
Posted 7:59 AM by Marty Lederman [link]