The Abdallah Higazy farce

October 23, 2007

Yesterday, Kevin Drum asked a good question: “Is there really as little interest in the Higazy redaction story, from both left and right, as a quick search of Google Blog indicates? … [It] sure seems like a juicy story, but it’s not getting much play today.”

I read that and thought, “Now, which one was Higazy again?”

So, I did my homework and read up on the story. Kevin’s right; it’s a doozy. Indeed, it sounds like the plot of a thought-provoking movie that leaves people thinking, “This couldn’t really happen, could it?”

It’s a surprisingly straightforward fiasco. An Egpytian national, Abdallah Higazy, was in New York on Sept. 11, 2001, staying in a hotel. The morning of the attacks, the hotel was evacuated, and the staff later found a device that allows the user to communicate with airline pilots.

Higazy was taken into custody as a suspected terrorist, but denied having done anything wrong, and said he did not know anything about the airline device. U.S. officials gave him a choice: Higazy could confess to being a terrorist involved with the 9/11 plot, or his family would be taken into custody in Egypt, where they would be tortured. Left with no choice, Higazy said what the FBI told him to say.

Soon after, wouldn’t you know it, an airline pilot shows up at the same hotel and says, “Has anyone seen the radio I accidentally left in my room?” Higazy’s confession was, of course, coerced and bogus. After his release, he sued the FBI, and the 2nd Circuit Court of Appeals ruled that Higazy was entitled to damages.

And then the 2nd Circuit pulled the decision.

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, particularly 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 decision.

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.

The next day, the Court of Appeals reissued the Higazy opinion. With a redaction. The court simply omitted from the revised decision facts about how the FBI agent extracted the false confession from Higazy. For some reason, this information is classified.

There are a number of lessons to be learned here. First, don’t always assume those who confess are guilty. Second, as Matt Yglesias noted, the Bush administration’s ability to cover up its colossal screw-ups is almost as offensive as the screw-ups themselves.

The new rule of law — even when your banana republic antics get caught and exposed, you can use the cover of national security secrets to keep the facts obscured. Welcome to America.

Makes you proud, doesn’t it?

classified information. national security. what bullshit!

  • Another 9/11 lie. Pathetic.

    The Bush Laden Cabal has successfully used 9/11 as their primary instrument of Tyranny. And somehow, despite all of the lies, half-truths, deceit, and cover-ups of the First American Dictatorship, even here in the “Reality-Based” Community, a re-investigation of 9/11 is not merited?

    Also, pathetic.

  • I actually got out of serving on a Federal jury earlier this year by telling the Judge I wouldn’t believe anything or anyone presented by the government, since in 43 years (since August 2, 1964, at 0200 local) I no longer believed anything said by any representative of the American government.

    (not so) funny thing: in the 43 years since that date (for those of you who are history-challenged, it’s the date of the first engagement in what became known as “the Tonkin Gulf Incident,” an event I was a fly-on-the-wall at, and about which the real truth has yet to be told), I have yet to be disappointed by these pinstriped pimps.

    Sadly, this story would only surprise me if it had gone the other way.

  • U.S. officials gave him a choice: Higazy could confess to being a terrorist involved with the 9/11 plot, or his family would be taken into custody in Egypt, where they would be tortured. Left with no choice, Higazy said what the FBI told him to say.

    Just like the President certified. We do not torture people. We just threaten to have their families tortured. Produces surprisingly similar results, too, doesn’t it?

  • I have to admit, as cynical as I can be I am surprised if, as it appears, a Court of Appeals bent to a government request to hide the salient facts. FBI misconduct and gross error is simply not a matter of national security. How very disappointing – the underlying events, the way it appears to have been covered up, and the fact that this is not big media news.

  • Nice to see that chap didn’t fold when the terrorists told him to take his blog post down.
    Nice to know that a few American’s still stand tall against the torturers.

  • Given the media’s increasingly corporate/government collusion and their determination to focus on entertainment rather than news…why would they want to report on a convoluted story about the destruction of our government from within by their corporate buddies?

  • What would have been awesome is if the call went out around the blogosphere to go to the How Appealing blog and have thousands of folks download the unredacted opinion. It’d make it a “closing the barn doors … ” situation.

    I wonder if there’s still a chance?

  • I found the unredacted opinion at one of the psychsound.com links, but what I haven’t found is a digest of the redacted parts. I’m too lazy to compare the long documents myself, but someone has probably already done it. “So I don’t have to,” as we say around here.

    Does anyone have a link?

  • Power trumps Justice…er…sometimes. Our government agencies believe they can do whatever they want under this administration. Until republicans took over the government at least there were some checks and balances still in place but now “states secrets” are invoked to prevent justice and keep the public in the dark about our secret government.

    What happened to those who coerced the confession…were they disgraced and fired? Or was it “better luck next time”. It wasn’t the FBI but some people who work for the FBI and they should be made an example. What are their names? Why isn’t Malkin putting their addresses on the internet? Do they work part time for the telecoms and are seeking amnesty for their actions?

  • A minor point of clarification– the Second Circuit did not hold that Higazy is entitled to damages. It simply vacated the district court’s grant of summary judgment against Higazy on one of his constitutional claims, thereby permitting Higazy to take that claim to trial where he might or might not ultimately prevail. So what the court really held is that Higazy has stated a claim that a reasonable jury might find sufficient to entitle him to collect damages.

  • Redactions and classifications should be used to hide state secrets that protect us all not dirty little secrets that protects a few hooligans. How much worse will our faith in Republican-led government get by January 20, 2009?

  • James Dillon (#13) –

    That actually raises an interesting question. If the basic facts of the underlying harm was too sensitive to put in a circuit court opinion, how is it that it can be presented to 12 random laypersons?

    Any bets the Administration isn’t done screwing Higazy over yet?

  • Zeitgeist,

    First of all, it’s a little imprecise, based on my reading of the opinion, to say that the redacted portions are deemed “classified” by the government. What seems to have happened is that the details of Higazy’s interrogation were presented to the court in a sealed affidavit– meaning a document that isn’t available to the public but can be reviewed by the court. That’s a bit different from a claim that the information is classified, and while I’m not an expert on this issue, I don’t see any reason why Higazy wouldn’t be able to testify at trial as to what happened, unless of course the government were to assert the state secrets privilege, which prevented Khaled el-Masri from going forward with his lawsuit. The argument for that privilege is substantially weaker in this case, and the Second Circuit is probably less likely to be receptive to a broad invocation of the privilege than the Fourth Circuit was in el-Masri’s case.

    In any event, I would speculate that even if the trial court were to conclude that Higazy could not present the details of the interrogation to the jury (and, again, I doubt that would happen), it could do so on the condition, as appears to be the case already, that the parties stipulate that the confession was coerced. In other words, the government would essentially concede that point and the court would instruct the jury that they could use view that concession as evidence in their deliberations.

    • Comments are closed.