And that is why civil liberties are so utterly vital.

Does anyone remember the anthrax attacks that happened in the weeks following the  attacks of September 11, 2001?  I sure as hell do, because literally everyone in my line of work (clinical laboratory sciences) got looked at very closely. We will not soon be forgetting how quickly we became suspect after our decades of service to the public and, in many, many cases, service in the military in the Medical Officer Corps.  

The government really dropped the ball on that one and still haven’t caught the culprit(s).  They did manage to ruin the life and career of one academic, though.    Now they have settled with him, to the tune of $5.8 million dollars.

From MSNBC:

The Justice Department on Friday agreed to pay more than $5.8 million to Steven Hatfill, the former government scientist once branded by the Justice Department a person of interest in the deadly anthrax attacks of 2001. The legal settlement to Hatfill, in cash and an annual payments, signals the end of a civil lawsuit Hatfill brought against the Justice Department and FBI, accusing them of violating his privacy rights by improperly leaking sensitive information about the anthrax investigation to reporters.

“I think it’s a gratifying end to a very sad chapter in [Hatfill’s] life and that of the FBI and DOJ,” said Hatfill’s lawyer, Thomas Connolly, of the Harris, Wiltshire & Grannis law firm in Washington, D.C. “I’m hopeful that the settlement is punitive enough that they will learn their lesson” regarding the treatment of future suspects in high-profile criminal cases, he told NBC News.

The settlement language tries to give the government a figleaf by stating that it “should not be construed as an admission of liability or fault on the part of  the FBI or Justice Department” but only an idiot will believe it.  Lots of us remember the attorney general naming former Army scientist Steven Hatfill as a “person of interest” in the anthrax attacks, we remember that the FBI agents and Justice Department officials leaked key details about the case to willing reporters, according to depositions provided in Hatfill’s civil suit. The FBI kept the pressure on Hatfill by conspicuously tailing him in public, with one agent in an unmarked car once running over his foot.  We also remember the resulting media trial as the first anniversary of September 11 drew near.    

Hatfill deserves at least as much compensation as he received.  And the government officials who leaked the information should face federal civil rights charges.  And I would be saying that even if I didn’t take Mr. Hatfill’s experience so very personally on so very many levels.

And the fact that the government, spurred on by a 24-hour news cycle that encourages speculation and false accusations, gets it so spectacularly wrong so freakin’ often (Richard Jewell, anyone?) is exactly why it is so important to jealously safeguard our remaining liberties.  

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?

Title 18, Part I, Chapter 67, § 1385

§1385. Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

I seem to remember a recent Attorney General saying that certain norms of behavior were “quaint.” That seems to be standard operating procedure with this administration.

The American Civil Liberties Union has done a little asking about “quaint” things. You know, search warrants and the like. National Security Letters.

….In October 2007, the ACLU received documents from the Department of Defense that reveal that DoD has secretly issued hundreds of NSLs to obtain private and sensitive records of people within the United States without court approval. A comprehensive analysis of 455 NSLs issued after 9/11 shows that the Defense Department seems to have collaborated with the FBI to circumvent the law, may have overstepped its legal authority to obtain financial and credit records, provided misleading information to Congress, and silenced NSL recipients from speaking out about the records requests….

There’s been a little erosion of Posse comitatus since 1878 but, “…it remains a deterrent to prevent the unauthorized deployment of troops at the local level in response to what is purely a civilian law enforcement matter…”

First, a little background:
November 6, 2005

….The FBI now issues more than 30,000 national security letters a year, according to government sources, a hundredfold increase over historic norms. The letters — one of which can be used to sweep up the records of many people — are extending the bureau’s reach as never before into the telephone calls, correspondence and financial lives of ordinary Americans.

Issued by FBI field supervisors, national security letters do not need the imprimatur of a prosecutor, grand jury or judge. They receive no review after the fact by the Justice Department or Congress. The executive branch maintains only statistics, which are incomplete and confined to classified reports. The Bush administration defeated legislation and a lawsuit to require a public accounting, and has offered no example in which the use of a national security letter helped disrupt a terrorist plot.

The burgeoning use of national security letters coincides with an unannounced decision to deposit all the information they yield into government data banks — and to share those private records widely, in the federal government and beyond. In late 2003, the Bush administration reversed a long-standing policy requiring agents to destroy their files on innocent American citizens, companies and residents when investigations closed. Late last month, President Bush signed Executive Order 13388, expanding access to those files for “state, local and tribal” governments and for “appropriate private sector entities,” which are not defined….

Executive Order 13388

Look what’s changed in a few years:

…A March 2007 report from the Justice Department’s Inspector General (IG) estimated that the FBI issued over 143,000 NSLs between 2003 and 2005, an astronomical increase from previous years….

There’s a math thing going on here.

Okay, so let’s take a look at some of those Freedom of Information Act documents obtained by the ACLU:

….12736
Ser 21/U0010
26 Jan 06
[redacted]

Dear [redacted]

I am a supervisory official designated by the General Counsel of the Department of the Navy to make the certification necessary under 15 U.S.C. § 1681v to compel disclosure of requested information and provide your agency with safe harbor.

In accordance with 15 U.S.C. § 1681v, I hereby certify that the information requested is necessary for an investigation of and/or analysis related to international terrorism.

Therefore, pursuant to Executive Order 12333 and Title 15 U.S.C. § 1681v of the Fair Credit Reporting Act you are directed to provide the Naval Criminal Investigative Service (NCIS) with a consumer report and all other information you possess in your files for the below listed consumer:

Consumer Name: [redacted]

Date of Birth: [redacted]

Social Security Number: [redacted]

Please be advised that 15 U.S.C. § 1681v prohibits [original underlined] any consumer reporting agency or officer, employee or agent of such agency from disclosing to any person that the NCIS has sought or obtained access to information or records under these provisions. Furthermore, any consumer reporting agency, or officer, employee or agent of such agency, is prohibited [original underlined] from including in any consumer report any information that would indicate or disclose that the NCIS has sought or obtained such information.

As a result of the sensitive nature of this request, please contact NCIS Special Agent [redacted] telephone [redacted] to make arrangements to provide the records. Your cooperation in this matter is greatly appreciated.

Sincerely,
[redacted]

Executive Order 12333

Executive Order 13355 [amends 12333]

Hmmm. Let’s check out that part of the code:

Title 15, Chapter 41, Subchapter III, § 1681v

§ 1681v. Disclosures to governmental agencies for counterterrorism purposes

(a) Disclosure
Notwithstanding section 1681b of this title or any other provision of this subchapter, a consumer reporting agency shall furnish a consumer report of a consumer and all other information in a consumer’s file to a government agency authorized to conduct investigations of, or intelligence or counterintelligence activities or analysis related to, international terrorism when presented with a written certification by such government agency that such information is necessary for the agency’s conduct or such investigation, activity or analysis.
(b) Form of certification
The certification described in subsection (a) of this section shall be signed by a supervisory official designated by the head of a Federal agency or an officer of a Federal agency whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate.

(c) Confidentiality
No consumer reporting agency, or officer, employee, or agent of such consumer reporting agency, shall disclose to any person, or specify in any consumer report, that a government agency has sought or obtained access to information under subsection (a) of this section.
(d) Rule of construction
Nothing in section 1681u of this title shall be construed to limit the authority of the Director of the Federal Bureau of Investigation under this section.
(e) Safe harbor
Notwithstanding any other provision of this subchapter, any consumer reporting agency or agent or employee thereof making disclosure of consumer reports or other information pursuant to this section in good-faith reliance upon a certification of a government agency pursuant to the provisions of this section shall not be liable to any person for such disclosure under this subchapter, the constitution of any State, or any law or regulation of any State or any political subdivision of any State.

What does the ACLU say about this?:

….Documents show the Defense Department may be flouting the law and, by simply asking the FBI to issue the NSLs on their behalf, accessing documents it is not entitled to receive. There is no evidence that the FBI has ever turned down such a request….

The Defense Department told Congress that it seeks NSL assistance from the FBI only in joint investigations, but an internal program review shows that the military asks the FBI to issue NSLs in strictly Defense Department investigations….

….Although compliance with Defense Department-issued NSLs is voluntary, the coercive language found in these letters would lead a reader to believe compliance was mandatory. For example, one NSL was stamped multiple times with the words “subpoena” and “non-disclosure obligation” to intimidate its recipients with authority the Defense Department does not have. According to Navy records, no credit agency has ever refused to comply with the military’s requests, and only two financial institutions have refused to comply….

….The Defense Department appears to “gag” all NSL recipients as a matter of course, and, despite recent changes to the law, the NSLs issued by the Defense Department do not inform recipients of their new right to challenge the request and gag order in court…

Would it be that difficult to go through the FBI and ask a court for a warrant? What, the paperwork is too onerous?