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A guy is in Manhattan in a hotel next to the World Trade Center on September 11, 2001. The hotel is evacuated and he’s not able to take all of his belongings with him. Later he tries to claim his belongings from the hotel – a passport, a religious book, and other items. Somehow the FBI is apprised of the situation – the claim is made that a radio transceiver was found with those belongings. The FBI interviews the guy. The guy says “that’s not my radio.” The FBI continues, more or less saying, “‘fess up, or we’ll turn your family over to people who’ll make their life miserable.” He confesses, out of fear for his family, in a confused sort of way. Later, an airline pilot shows up to recover his belongings and tells the hotel, “Where’s my radio?” There’s no connection between the two individuals.

Oopsie.

Title 18, Part I, Chapter 113C, Section 2340. (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from – (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and (3) “United States” includes all areas under the jurisdiction of the United States including any of the places described in sections 5 and 7 of this title and section 46501(2) of title 49.

It gets worse.

October 21, 2007

A tale of two decisions (or, how the FBI gets you to confess)

….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, particular[l]y 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 decis[i]on.

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….

Here’s the reissued decision:

05-4148-cv
Higazy v. Millenium Hotel and Resorts

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
__________________________
August Term, 2005
(Argued: June 23, 2006 Decided: October 19, 2007)

….[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 that Higazy’s statements were coerced….

When will people learn that once you hit “enter” on your keyboard it’s out on the Internets forever? I believe the legal turn of phrase is “you can’t unring the bell.”

Here’s what was reportedly in the original  on October 18, 2007 [posted at How Appealing] with the REDACTED section indicated:

…The government expressed its doubt that a polygraph of Higazy would be useful and opposed Higazy’s request to take one. They explained that if Higazy was a member of al Qaeda, he could pass it. Nevertheless, on December 27, Templeton-who up until this point was not involved in the investigation-conducted a polygraph examination of Higazy. Templeton began the test by asking Higazy background questions on subjects such as Higazy’s scholarship, homeland, family in Egypt, brother in upstate New York, and girlfriend. He also asked Higazy whether he had anything to do with the attacks of September 11, 2001. The first round of testing allegedly suggested that Higazy’s answers to the questions relating to the September 11 attacks were deceptive. As the second series of questioning was ending, Higazy requested that Templeton stop. He testified that he began “feeling intense pain in my arm. I remember hearing my heartbeat in my head and I just couldn’t breathe. I said, ‘Sir, sir, please, stop. It hurts. Please stop. Please take it off.'” Templeton unhooked the polygraph, and according to Higazy, called Higazy a baby and told him that a nine-year-old could tolerate this pain. Templeton left the room to get Higazy water, and upon his return, Higazy asked whether anybody else had ever suffered physical pain during the polygraph, to which Templeton replied: “[i]t never happened to anyone who told the truth.”

Higazy alleges that during the polygraph, Templeton told him that he should cooperate [REDACTED TEXT BEGINS], 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.”

Higazy explained why he feared for his family:

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.

And Higazy added:

[L]et’s just say a lot of people in Egypt would stay away from a family that they know or they believe or even rumored to have anything to do with terrorists and by the same token, some people who actually could be -might try to get to them and somebody might actually make a connection. I wasn’t going to risk that. I wasn’t going to risk that, so I thought to myself what could I say that he would believe. What could I say that’s convincing? And I said okay.
[REDACTED TEXT ENDS]

Higazy then gave Templeton a series of explanations as to how he obtained the radio. First, he admitted that he stole the radio from J&R, an electronics store. Then he recanted this story, and explained that he found it near J&R. Higazy next denied ever seeing or possessing the radio. Templeton allegedly banged on the table and screamed at Higazy: “You lied to me again! This is what? How many lies?” Higazy then lied again, this time telling Templeton that he found the radio on the other side of the Brooklyn Bridge. Higazy recalled that Templeton “turned so red I thought he was going to hit me.” Templeton accused Higazy of being a liar, and said that he would “tell Agent Sullivan in my expert opinion you are a terrorist.” Finally, Higazy told Templeton that he had stolen the radio from the Egyptian military and had used it to eavesdrop on telephone conversations.

Templeton then wrote out a statement providing that Higazy had stolen the radio from the Egyptian military, which he asked Higazy to sign. Higazy remembered that his attorney was outside, and asked to see his attorney. At first, Higazy’s attorney was angry with Higazy, thinking Higazy had lied to him, but when Higazy told his attorney that he had not lied to him, the attorney advised Higazy not to sign the statement.

The parties appeared the following day, December 28, 2001, for the previously scheduled hearing before Judge Rakoff. At the hearing, the government proffered its “new evidence,” apparently the information gained during the polygraph interview: “[Higazy] has admitted it is his radio, and he has provided I believe about three different versions of where it came from.” Judge Rakoff commented, “it no longer strikes me as even an arguably close call whether to detain him, given the apparent unreliability or inconsistency between what was previously represented and what I am now being advised is the situation.” The parties agreed to adjourn the bail hearing; Higazy’s attorney did not object to the government’s request that bail be denied and Higazy be further detained. Judge Rakoff ordered Higazy detained and instructed the parties to appear before him on January 14, 2002.

On January 11, 2002, Agent Bruno filed a criminal complaint against Higazy for making false statements, in violation of 18 U.S.C. §1001(a). Higazy was brought before the United States District Court for the Southern District of New York (Maas, M.J.), where the government implied that Higazy’s false statements were somehow connected to the investigation of the September 11 terrorist attacks: “[t]he crime that was being investigated when these false statements were repeatedly made I think can fairly be characterized as perhaps the most serious in our country’s history.” In its bail argument, the government alluded to Higazy’s “three different versions of how he had come into possession of the radio,” and concluded that Higazy “is not somebody who can be deemed trustworthy.” Magistrate Judge Maas ordered Higazy to be detained and held without bail.

Three days later, on January 14, 2002, an airline pilot, who had been staying on the 50th floor of the Millenium Hotel returned to the hotel to reclaim his property. After inspecting his items, the pilot informed the hotel staff that his transceiver was missing. Millenium immediately contacted the FBI, which then verified that what was thought to be Higazy’s transceiver was in fact the pilot’s and that the pilot had not had any interaction with Higazy. The FBI reinterviewed Ferry, who revised his original account, this time explaining that the radio was found on a table in Higazy’s room and not in the safe. The government withdrew its complaint against Higazy, who was released on January 16, 2002, after thirty-four days in custody….

We used to have a Constitution with a Bill of Rights.

Patterico, October 21, 2007:

…My judgment is that the material was sealed, not to protect anyone from harm, but to protect the government from embarrassment…..

….Namely, you have an FBI agent who admits that he threatened to ensure that a suspect’s family would be tortured by a foreign government.

Somehow, I think that’s the reason the information was submitted under seal….

Uh, you think?

If this was a one time incident do you think anyone would have bothered acting to suppress information about it in this fashion?