Bloggers Reveal Redacted Second Circuit Opinion Contained Allegations of Coercion That Occurred During an FBI Interrogation Related to 9/11
The Second Circuit opinion, in Higazy v. Millennium Hotel and Resorts, concerned an Egyptian graduate student who was studying in New York on 9/11 when he was falsely accused of communicating with the hijackers through a radio found in a hotel room safe. Higazy professed his innocence, took a polygraph test, but confessed during an interrogation with the FBI after allegedly being threatened by an agent.
He was held for 34 days as a material witness, and was released only after the radio was claimed by an airplane pilot who had no connection to Higazy; the radio had been linked to Higazy by a former police officer working at the hotel who later pled guilty to lying to the FBI about the radio. Higazy sued an FBI agent, Templeton, for coercing a confession, according to the New York Sun. The Second Circuit opinion originally detailed Higazy's claims regarding the interrogation:
Higazy alleges that during the polygraph, Templeton told him that he should cooperate, 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.”
Steve Bergstein wrote about the Court's opinion on his blog Wait a Second!, went to lunch, and then noticed the opinion had been taken down from the Court of Appeals website, according to an account he published on his personal blog, Psychsound. Bergstein then notified other bloggers, including Howard Bashman at How Appealing, who published a request for the missing opinion, and then posted the missing opinion after it was sent to him in an email. Bashman also noted the Court posted an announcement that the opinion was withdrawn, although that link no longer works.
A clerk from the Second Circuit then contacted Bashman, who declined to take down the opinion, according to an interview with Bashman published on the ABA Journal. Bashman wrote on his blog:
Catherine O'Hagan Wolfe, the Clerk of Court of the U.S. Court of Appeals for the Second Circuit, has telephoned to advise that the opinion was withdrawn out of a concern that it might disclose information contained in a portion of the appendix on appeal that was submitted under seal. The Second Circuit plans to reissue the decision, as revised to omit any disclosure of information filed under seal, tomorrow morning. The purpose of Ms. Wolfe's telephone call was to ask me to take down this blog's posting of the decision to the internet.
The Court then republished the opinion, but with redactions, including a note on page 7 that reads: "this opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton [the FBI Agent] did not contest that Higazy's statements were coerced." In his interview with the ABA Journal, Bashman said:
No one from the Second Circuit has attempted to explain to me the so-called security concerns—which as far as I can tell based on my own analysis apparently arise from certain statements attributed to Mr. Higazy in the opinion's factual recitation—that led the Second Circuit to remove the opinion from its Web site after the opinion had been posted there for all to see and access.
As for the Second Circuit's decision, Bergstein recapitulates it as follows:
The Court of Appeals agreed that Higazy has a claim under the Constitution for the coerced confession and that Templeton [the FBI Agent] is not entitled to qualified immunity. . . . While government defendants are entitled to qualified immunity (and can't be sued) if the law was unclear at the time of the incident, the Court of Appeals reasoned, "On January 11, 2002, it was clearly established that the FBI could not coerce a confession and later use that confession in a criminal case, including in a proceeding before a judge after criminal charges had been filed, to impose the penalty of continued detention. . . ."
Wrapping up, the Second Circuit also rejected Templeton's other qualified immunity argument that it was objectively reasonable for him to act as he did under the circumstances. "When the facts are cast in the light most favorable to Higazy, an officer in Templeton’s shoes would have understood that the confession he allegedly coerced from Higazy would have been used in a criminal case against Higazy and that his actions therefore violated Higazy’s constitutional right to be free from compelled self-incrimination."