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

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]

Comments:

What do you know, we agree on something.

There is no basis to classify mere allegations of FBI threats during a civilian criminal investigation.

This is fundamentally different from classifying foreign intelligence gathering, where it is important the the enemy not be informed of the means and methods of the gathering, nor have the means and methods confirmed when the intelligence gathering is illegally disclosed in the press.

# posted by

Bart DePalma : 10:57 AM

I think there is but one precedent for this: Orwell, George, 1984 (1948). If we must actually do serious legal analysis here, how about this analogy? Grand jury testimony may not be disclosed. However, that rule applies to everyone BUT the individual who testifies. Nothing prevents that person from sharing with the media what he/she was asked -- even if doing so would reveal the govt's case. If a grand jury witness or target can blab about what happened in the grand jury room, doesn't it stand to reason that a torture victim can speak out about what happened to him?

# posted by

Unknown : 11:19 AM

There is no basis to classify mere allegations of FBI threats during a civilian criminal investigation.

No legal basis, perhaps. Of course, if those mere allegations are actually true, the effect of releasing that information would be identical to releasing information about the "means and methods" of foreign "intelligence gathering." Thus, it might be in the administration's interest (if "not informing the enemy" is indeed an overpowering national security concern) to make sure that information stays out of the public record.

I'm not sure if Fraud Guy is still out there to back me up, but this kind of preemptive reclassification strikes me as classic guilty behavior.

# posted by

PMS_CC : 11:45 AM

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?

Try 2001, and the infamous and unconstitutional PATRIOT Act "National Security Letters." I'm sure the readers of this blog are familiar with these much-maligned tools of illegal search and seizure. Higazy's case is essentially the same theory applied to a different practice: Daddy Government knows what's best for you. Shut up and stop asking questions. Shouldn't you be shopping? You only have 46 days left until Christmas.

# posted by

tekel : 12:12 PM

pms_chicago said...

BD: There is no basis to classify mere allegations of FBI threats during a civilian criminal investigation.

No legal basis, perhaps. Of course, if those mere allegations are actually true, the effect of releasing that information would be identical to releasing information about the "means and methods" of foreign "intelligence gathering."

How do you figure?

The result of disclosing the means and methods of intelligence gathering to an enemy is that the enemy will know how to avoid the intelligence gathering. For example, when some moron in the government leaked to the press the last bin Laden video which was intercepted off of an al Qaeda website which we had been monitoring, the website closed down within days.

In contrast, there are no intelligence gathering means and methods involved in the FBI allegedly threatening this suspect's family in exchange for a coerced confession to a crime.

# posted by

Bart DePalma : 12:43 PM

This story is remarkably similar to the novel The Zero.

Creepy.

# posted by

nicholas : 12:45 PM

The problem is that this Administration wants to torture while simultaneously, piously claiming that they do not.

The root of the problem is that they refuse to treat terrorism as a law enforcement problem.

Herr Busch simply feels he is above the law.

I don't understand why they just didn't waterboard the truth out him.

# posted by

Garth Sullivan : 1:15 PM

PMS_Chicago,

The reclassification syndrome would be a corollary to that classic method of explaining guilty behaviour.

With the classic story telling of a guilty person, they will attempt to change their tale, or their reasoning for their actions, in order to find a rationale acceptable to their questioner (even if it is themself). This is one of the reasons that detectives will question suspects multiple times, to find changes in stories that may indicate false information.

Reclassification like this is more of a preemptive version of the same, that I have seen working in compliance more than fraud. A marketing or sales person will repeatedly try out rationales to allow them to avoid a compliance effort that they feel may dampen their sales results (and bonus), for example:

"If we call this x, instead of y, then we don't have to do what is required by y."
My reply: "It's still y."
"But if we don't call it y..."
"It's still y."
"What if we change it to almost x, then it's not y?"
"It's still y."
"I want to run this by legal"
Legal: "It's y. Do what he said."
"What happens if we don't do the y requirement--what's the risk of getting caught? What's the cost?"
At which point I bring it to C-level to reign in the marketing crew (in a perfect world), but then I have to be very exact in my reasoning (and ROI) because I'm potentially cutting the bottom line.

The problem here is that it's the compliance guys (FBI, Justice Department) who are engaging in the guilt-avoidance behavior, and the C-level appears to be encouraging it.

Where's an engaged board of directors when you need them?

# posted by

Fraud Guy : 1:17 PM

There is no basis to classify mere allegations of FBI threats during a civilian criminal investigation.

This is fundamentally different from classifying foreign intelligence gathering, where it is important the the enemy not be informed of the means and methods of the gathering, nor have the means and methods confirmed when the intelligence gathering is illegally disclosed in the press.

Oh, how so? Don't both inevitably involve "means and methods" of investigations of arguable relevance to national security matters (I'd note that Higazy was being investigated as part of the 9/11 investigations). When the rationale of the "classification" is that the "enemy" will know our methods, don't both revelations do similar damage in terms of assisting any "enemies" as to what they might face (comparing the Higazy case to the maladministration's reticence in divulging their torture methods, supposedly on "national security" grounds).

I'd note that the gummint doesn't agree with "Bart" here (and apparently "see" my point above); they insist that Higazy's allegations should be similarly kept under wraps.

Cheers,

# posted by

Arne Langsetmo : 1:52 PM

PMS_Chicago:

I'm not sure if Fraud Guy is still out there to back me up, but this kind of preemptive reclassification strikes me as classic guilty behavior.

How dare you impugn the gummint's statements? We need to take their word at face value, as we know nothing of the actual circumstances and "overall" picture (until such time as it is propitious [if absurd and obviously false] for us to pretend we do when arguing in favour of the efficacy of a particular disputed procedure or method).

Cheers,

# posted by

Arne Langsetmo : 1:56 PM

The result of disclosing the means and methods of intelligence gathering to an enemy is that the enemy will know how to avoid the intelligence gathering.

And telling them that their relatives might be threatened with retaliation if they do not co-operate in interrogations lets them know to squirrel their relaitves away in safer places in advance....

C'mon, "Bart", show at least a smidgen of thought.....

Cheers,

# posted by

Arne Langsetmo : 1:59 PM

garth sullivan:

The problem is that this Administration wants to torture while simultaneously, piously claiming that they do not.

Actually, no. The stated rationale for neither confirming or denying things is to leave it (at least "officially") up in the air, so as to leave uncertainty (and not "reveal our methods"). But as I've previously argued, one could make the claim that deliberate misinformation (telling them you don't, when you in fact do, or telling them that you use one method and then using another, or just tellng them that you will in fact be the "biggest and baddest a$$ on the block") may serve these purposes just as well.

The reluctance to "divulge", I think, stems more from a desire to avoid legal consequences of an official admission, and that effect is purely within the realm of a courtroom; others (such as the "enemy") are free to draw their own conclusions as to what's happening, and do.

The same goes for any admission of torture; the impact comes from the effect of this in courts, in international relations, and in public opinion. While marginaly related to "security" issues, the primary motive here is political (see, e.g., Reynolds).

Cheers,

# posted by

Arne Langsetmo : 2:07 PM

Well, Prof. Lederman has asked us many times to stay on topic, not respond to provocation, not feed trolls, etc, so I shouldn't be saying this at all but . . .

It is interesting that Bart constantly argues that terrorist are not criminals at all but "unlawful enemy combatants" who have none of the rights of criminal suspects. But once a 9-11 suspect is cleared of involvement, suddenly it all becomes a criminal matter after all.

# posted by

Essayist-Laywer : 2:12 PM

enlightened layperson said...

It is interesting that Bart constantly argues that terrorist are not criminals at all but "unlawful enemy combatants" who have none of the rights of criminal suspects. But once a 9-11 suspect is cleared of involvement, suddenly it all becomes a criminal matter after all.

Marty raised the issue of when it is and is not proper to classify government activities, not what constitutional rights if any Higazy enjoys.

The FBI was in fact performing a criminal investigation and not intelligence gathering, so I see no grounds to classify their investigation.

Whether or not the FBI should have treated this as civilian criminal investigation rather than intelligence gathering is a completely different subject.

# posted by

Bart DePalma : 4:00 PM

"Bart" DePalma, schizophrenic "split personality":

The FBI was in fact performing a criminal investigation and not intelligence gathering, so I see no grounds to classify their investigation.

What difference does that make as to whether the methods should be "classified" (under the rubric of "don't let the Satanic Islamofascist Enemy know your methods because then they'll know how to counter them")?

And I'd note that your favourite case (when you have other 'rhetorical purposes' in mind), In re: Sealed Case, had a bit to say about this distinction you've suddenly discovered. What did they say, "Bart"?

Cheers,

# posted by

Arne Langsetmo : 5:23 PM

Indeed, whether the super scawy iswamofascists are even human and, thus, protected by our Constitution is an open question.

# posted by

Bart Depalma Jr. : 5:40 PM

On a related topic, what about DoD commands that prevent military personnel from testifying at congressional hearing in their individual capacities? This apparently happened today (http://www.tpmmuckraker.com/archives/004667.php#more). Why isn't this a violation of the Military Whistleblower Protection Act? 10 U.S.C. S 1034(a)(1) ("No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General."). If we suspect that the FBI can't control the release of a suspect's personal experiences in the absence of a statute, then why can the military control the release of a servicemember's personal experience in a manner that's explicitly permitted by statute?

# posted by

dm : 5:43 PM

dm:

LTC Couch served as the military prosecutor in the war crimes case against Mohamedou Ould Slahi. Couch declined to prosecute the case because he believed that he could not prove the case without relying upon inadmissible evidence gained through alleged torture and blackmail.

LTC Couch is currently serving as a military judge.

The Pentagon ordered LTC Couch not to testify before Congress because the issues about which he will testify are currently before the military judicial system and Couch could be asked to rule on them in the future.

This is similar to hauling a sitting judge to answer questions on issues which may come before him.

If Congress wants to review the facts of the Slahi case, the Intelligence Committee should have the Recorder who gathered the evidence in the case testify in closed session.

If Congress wants to review the law applying to the Slahi case, they should call witnesses who are not going to be asked to rule on the law in the future.

# posted by

Bart DePalma : 6:06 PM

Bart,
I disagree with three elements of your analysis:
1. It looks to me like he was not going to mention an opinion on pending issues, rather he was just going to provide a factual account of his activities as a military prosecutor. Surely even an Art. III judge who was previously a prosecutor could do this.
2. The MWPA protects all communications that are sent from a servicemember to a member of congress and that are not "unlawful". What law prohibits a military judge from talking about matters upon which he might rule?
3. "No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case." 10 U.S.C. S806(c). Although I'm no expert, the cases applying this statute suggest that Couch is precluded from acting as judge on a case that he once prosecuted. That seems to indicate that he'll never rule on the issues about which he would have testified.

# posted by

dm : 6:40 PM

There is an interesting question asked by the article, whether the threats to the prisoner were precedent setting. I think a lot of hard working, good people have occupations in the risky business of law enforcement, but excesses happen when checks and balances thin. This is the unseemly side of partial martial law, which, to me, is a substrate in the administration's diverse strategies to repel the asymmetrical opposition which international organized terrorism represents in its standoff with democracies. Probably we find far less information about terrorism in nations which have authoritarian governance because many exercises of a bill of rights are absent in those countries. I am glad to see Bashman receive well deserved credit for his open concept of a law blog. Evidently his host law dot com also decided his work is first rate in 2006 when they invited him to locate on their site.

# posted by

JohnLopresti : 6:59 PM

dm said...

Bart, I disagree with three elements of your analysis:

1. It looks to me like he was not going to mention an opinion on pending issues, rather he was just going to provide a factual account of his activities as a military prosecutor. Surely even an Art. III judge who was previously a prosecutor could do this.

The Dems are hardly going to focus themselves purely to the facts of the case or they would have simply avoided potential conflicts and brought in the Recorder who gathered the evidence.

The subject matter is going to be policy with the ongoing purpose to find a dissenting official to embarrass the President.

2. The MWPA protects all communications that are sent from a servicemember to a member of congress and that are not "unlawful". What law prohibits a military judge from talking about matters upon which he might rule?

It is a basic tenant of the judiciary that judges will not discuss how they will rule on future cases. We go through this with every judicial nominee.

3. "No person who has acted as member, military judge, trial counsel, assistant trial counsel, defense counsel, assistant defense counsel, or investigating officer in any case may later act as a staff judge advocate or legal officer to any reviewing authority upon the same case." 10 U.S.C. S806(c). Although I'm no expert, the cases applying this statute suggest that Couch is precluded from acting as judge on a case that he once prosecuted. That seems to indicate that he'll never rule on the issues about which he would have testified.

We are talking about the same issues, not the same case.

# posted by

Bart DePalma : 8:08 PM

"Bart" DePalma:

LTC Couch served as the military prosecutor in the war crimes case against Mohamedou Ould Slahi. Couch declined to prosecute the case because he believed that he could not prove the case without relying upon inadmissible evidence gained through alleged torture and blackmail.

LTC Couch is currently serving as a military judge.

The Pentagon ordered LTC Couch not to testify before Congress because the issues about which he will testify are currently before the military judicial system and Couch could be asked to rule on them in the future.

This is similar to hauling a sitting judge to answer questions on issues which may come before him.

Ummm, no. A judge may decide to refuse to answer certain questions, and may cite for that refusal his/her concern for perhaps prejudging a case, in particular one that is currently pending before him/her or making its way up on appeal. But there is no requirement that the judge do so, and they may decide that the questions asked are sufficiently off-topic or general so as to not give any appearance of prejudgement or lack of partiality. Should any such answers, even inadvertently, subsequently cast doubt on the judge's impartiality, they can (and perhaps are ethically required to) recuse themselves.

But that's not at all like the maladministration ordering someone not to testify at all, much as "Bart" would like to pretend so, to protect his beloved maladministration.

Cheers,

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