Drum wonders why the Higazy opinion story hasn’t got more play in the liberal blogosphere. I hereby respond to his call.
You may remember the story of Abdallah Higazy, an Egyptian national who was arrested after 9/11 because investigators found a pilot radio in his hotel room. He confessed that the radio was his, but later an airline pilot showed up at the hotel to ask for the radio back—it was the pilot’s radio, and Higazy’s confession was false.
Higazy has sued the hotel and FBI agent for coercing his confession. The agent threatened that if he did not confess, his family back in Egypt would be tortured. The Court of Appeals just ruled that Higazy’s suit may proceed.
Here’s the Orwellian part: The opinion that was originally posted on the web described how FBI agent Templeton [allegedly] coerced a confession by threatening to have Higazy’s family tortured. That opinion was was later taken down; the Court of Appeals attempted to get Howard Bashman to take down a copy of the opinion that he had posted (he rightly refused); and a new opinion was put up with that passage redacted because it was classified.
But this is exactly the sort of material that should be open to the public: The FBI [allegedly] obtains coerced confessions from terrorist suspects by threatening to have their families tortured, a practice that not only shocks the conscience, violates international (and I believe U.S.) law, and gums up the legal process, but also makes us less safe because the confessions obtained are as likely to be false and true. As Higazy’s case shows, faced with torture or proxy torture, an innocent person will confess as quickly as a guilty one.
[UPDATE: It is still in dispute whether Templeton coerced the confession; the motion was on a summary judgment to dismiss the case, and for those purposes the defendant has to concede the plaintiff’s facts for the sake of argument. The question is whether there’s any legal case if everything happened the way Higazy says it did. But I still don’t see the case for classification; if Higazy’s allegations are false, then the opinion doesn’t disclose interrogation methods, and if they’re true, then that’s the sort of thing we need to know about. In any case, there was obviously a screwup—the investigators got a false confession—which seems like the sort of thing that calls for more oversight, not less. Patterico (neither a liberal nor a scourge of law enforcement) does excellent work in the comments to the linked post.]
The only problem I have with Bergstein’s post is his conclusion:
And punishment in a place like Egypt is not like punishment here. Punishment here consists of solitary confinement and a very long prison term. Punishment over there is torture.
As we’ve seen, punishment over hear (especially but not exclusively for foreign nationals) can also consist of torture.
More from appellate law and practice.
…and, a more trivial and pretty much unrelated case, what the hell is up with this story? You have a report in which Congressional staff say Blackwater was negligent in the Fallujah deaths and in which Blackwater screams “Not Me!” like the kids in the family circus. Why the hell do Richard Lardner and the AP headline writer lead with Blackwater’s view? Even if you don’t think the investigation’s findings are the news, surely the story should be about the debate rather than Blackwater’s denial.
….OK, reading further, the Congressional report had probably come out already, so Blackwater’s denial is the news story. Still, Blackwater’s denial needs more context; Lardner should be attempting to determine whether they have any credibility. The article has a scant four paragraphs on what the Congressional staff says, and the rest reads like a Blackwater press release.