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Lederman on Higazy:

Marty Lederman on Higazy:

What was the justification for the court "sealing" Higazy's allegations in the first instance? I am aware of no doctrine in law, or other policy, that permits the FBI or any other law-enforcement or intelligence agency to prevent individuals from describing how they were treated by our government. The fact that the FBI's conduct here was plainly unlawful if Higazy's allegations are true only makes matters worse, since the government should not be able to classify its illegal conduct. But even if the threat had been a lawful interrogation technique, since when can the government insist that you must keep secret what they do to you?

A similar issue is now being litigated in the context of various recent laws that prohibit phone companies and other corporations from revealing that the government has served them with National Security letters requiring production of customer records. One district court recently declared such a gag order unconstitutional, in a case that bears watching.

This is, I think, an ominous development -- the increasingly common notion that the government can insist that no one be permitted to publicly disclose what they know about how the government itself investigates crimes and terrorism, and how it treats those suspected of wrongdoing. Am I missing something? Is there some important historical precedent for this?

Lord knows Marty and I have our disagreements on various issues, but I think this is a case in which we are on precisely the same page.

PatHMV (mail) (www):
In the particular instance of Higazy, I might well agree with Lederman. However, on a broader point, particularly regarding secrecy of National Security letters, I think there is a very legitimate reason for such a rule.

During an on-going investigation, if the subject of the investigation finds out that the investigation exists, he will immediately change his pattern of behavior. If he's using a particular bank, and finds out that the government knows he's using that bank, then he's going to move his funds elsewhere, to a place where the government may not be able to find them. This feels a bit creepy to many people, I know, the idea that the government is getting your records without you knowing about it, but it's certainly uncontroversial to allow surreptitious government wiretapping, even planting bugs in restaurants and offices with appropriate judicial authorization, and that's, if anything, more creepy than obtaining bank records.

I agree this is an area for potential abuse, but it's hardly unprecedented or a new thing in the age of terrorism.
11.8.2007 11:16am
markm (mail):
Pat, that's a reason for a limited-time gag order. I don't believe the gag orders in National Security Letters are limited in time.
11.8.2007 11:33am
Anderson (mail):
It just gets better and better, people. Steve Benen:

But what about the effect of torture on prosecuting suspected terrorists? This doesn't usually get quite as much attention, but it appears prosecutors who want to put terrorists away find that it's harder to make a case when the defendant has been abused by U.S. officials.

A House Judiciary subcommittee wanted to explore this in detail today, and was set to hear testimony from a former Guantanamo Bay prosecutor with first-hand experience with the issue. Then the Bush gang intervened.

The Bush administration blocked a Marine Corps lawyer from testifying before Congress today that severe techniques employed by U.S. interrogators derailed his prosecution of a suspected al Qaeda terrorist.

…Lt. Col. V. Stuart Couch, a former Guantanamo Bay prosecutor, was set to testify regarding another concern that has long troubled uniformed lawyers: Regardless of their accuracy, statements obtained under torture or certain other forms of duress are inadmissible in legal proceedings. Because most evidence against Guantanamo prisoners comes from detainee statements, convictions hinge on whether they can be used in court.

Asked last week to appear before the panel, Col. Couch says he informed his superiors and that none had any objection.
That was before the Bush gang caught wind of Couch's intention to inform lawmakers (who have oversight authority) about the problem. William J. Haynes, the Bush-appointed Pentagon general counsel, yesterday told Couch via email that "it is improper for you to testify about matters still pending in the military court system, and you are not to appear before the Committee to testify tomorrow."


"Hey, Congress -- suck THIS!" in other words. Coming from Haynes especially, who will be in prison one day if there's any justice in the world, this is quite rich.

Congress *created* the military commissions. They are not Article III courts. If the Congress wants to hear about ongoing proceedings in those commissions, as part of its fact-finding into how they're doing, then what conceivable authority does the Executive have to tell Congress that it's not allowed to know what's going on in them?

Help me out here, folks.
11.8.2007 11:35am
PatHMV (mail) (www):
MarkM, I agree with that. I've got no problem imposing a time limit (perhaps a renewable time limit, as with wiretaps).
11.8.2007 11:43am
Cornellian (mail):
To quote a very good British TV series, the Official Secrets Act isn't there to protect secrets, it's there to protect officials.
11.8.2007 11:44am
CDU (mail):
The individual in question is a serving military officer, so the executive branch can order him to do (or not do) pretty much anything they want. It sounds like Couch was to testify voluntarily, rather than being subpoenaed, so at this point there's no legal conflict between congress and the executive. If the committee really wants to hear what he has to say, they can always subpoena him.
11.8.2007 11:47am
Anderson (mail):
Sure, a subpoena would be nice, and will hopefully issue, but regardless of legal compulsion, I continue to be flabbergasted.

Congress: we want such and such officer to testify before us.

Executive: no.

That is not how the government is supposed to work.
11.8.2007 11:50am
wm13:
Gosh, Anderson, I'm trying to remember your voluble comments about how when the courts (the federal courts!) want the Secret Service to testify, of course the Secret Service complies, rather than raising a lot of specious objections and litigating all the way to the Supreme Court.
11.8.2007 12:05pm
CDU (mail):
Honestly, I don't understand why you are so flabbergasted. The officer in question was set to testify about a highly classified program that has been a bone of contention between the administration and the current congress. Of course there's going to be dispute over who testifies about it and under what circumstances.
11.8.2007 12:09pm
Falafalafocus (mail):

Sure, a subpoena would be nice, and will hopefully issue, but regardless of legal compulsion, I continue to be flabbergasted.

Congress: we want such and such officer to testify before us.

Executive: no.

That is not how the government is supposed to work.

As I understand it, Congress asks for testimony when they subpoena the person. So far, Congress has not (as I understand it).

If he wants to testify, more power to him. But others have already pointed out that, as he is a member of the Executive, his bosses can always veto that decision.
11.8.2007 12:59pm
Oren (mail):

As I understand it, Congress asks for testimony when they subpoena the person.


Usually they just ask.
11.8.2007 1:28pm
NatSecLawGuy (mail):
I agree with the limited timed-gag orders. The argument by the administration is that enhanced interrogation techniques are needed because there is timely information within the individuals possession. Accepting that information is indeed timely as true, then it means, like bread in a warm humid room, it goes stale quickly as well. In other words, at some point the information loses its intelligence utility and gains its litigation (or more generally its ex post) utility for any wrongdoing - clearly the latter would be inappropriately classified.

When the shift in this balance is to occur is the big question mark in my mind, making evaluating it in an Article III setting as very likely non justiciable.

However, could someone explain to me why the function of Inspector General has been so nonexistent? My understanding is Inspector Generals were designed in part to bring the light of day to issues not likely to make their way into a court room. Why has this internal check so miserably failed to shed light on bad practices? Are they to dependent on the branch? Does Congress just not care to listen (or for that matter act)? Have they been neutered by the agencies and not given access? What effect does classification have on the Inspector Generals role? Any ideas?
11.8.2007 1:37pm
methodact:
Government has rigged the system. It does this in nearly every area it can. National Security is a convenient one-size-fits-all, trump card. Child porn laws are another example: By not letting the traditional checks-and-balances on government's machinations, examine the material, such as the 4th Estate, et al, would normally do, the myriad frauds perpetrated by the government are difficult to expose. Consider:

"A language or a system of a given structure can be somewhat altered from within, but cannot be revised structurally without going outside the former system. For instance, all the attempts to revise the structure of the euclidean and newtonian systems from within were ineffective. Those who revised these systems structurally had to go outside the systems first to produce different new systems." -- "Science and Sanity: An Introduction to Non-Aristotelian Systems", by Alfred Korzybski

Government is not an honest broker. We need to thoroughly see all that it is up to, and NOW.
11.8.2007 1:38pm
Anderson (mail):
I'm trying to remember your voluble comments about how when the courts (the federal courts!) want the Secret Service to testify, of course the Secret Service complies, rather than raising a lot of specious objections and litigating all the way to the Supreme Court.

Huh? Is this a Lewinsky thing or something?

Perhaps you'd like to see my blog comments on the Saturday Night Massacre, or the Tet Offensive, or FDR's court-packing scheme?

Next up: "Anderson says he's appalled by torture, but what did he post about when the sack of Magdeburg was going on? eh?"
11.8.2007 1:49pm
methodact:
and any comments on "Court stripping"
11.8.2007 1:52pm
Ralph Phelan (mail):
any comments on "Court stripping"
I'm trying to erase a mental picture of Justice Ginsberg from my mind.
11.8.2007 2:17pm
MichaelW (mail) (www):
Not to be a fly in the ointment here, but has anyone confirmed that (a) it was the government who requested the redaction, (b) the alleged statements of the FBI officer were the target of the redaction, or (c) that the seal in place is not time limited? Doesn't it seem more likely that the personal information about the plaintiff's family was what was being covered up? And if it was the defendant's behavior, then why all the other redactions? As Lederman states:


I am aware of no doctrine in law, or other policy, that permits the FBI or any other law-enforcement or intelligence agency to prevent individuals from describing how they were treated by our government.


So then why assume that was the target of the redaction?

Keep in mind as well that the redacted opinion was a ruling on a motion for summary judgment where the plaintiff's allegations were accepted as fact. The FBI agent denies making the threats, but disregarded that denial for purposes of the motion.
11.8.2007 2:57pm
RL:
I too am curious about who requested the redactions. Perhaps Higazy did not want the details of his confession to get back to his government. Egypt does not tolerate dissidence in any shape or form.

Along similar lines, when an alien is deported, Homeland Security is not allowed to reveal to their home country that they requested asylum. If DHS screws up - which it does - the alien has a new basis for claiming asylum.

So I don't think it's out of the question that Higazy would want to keep his fear of the Egyptian security forces under wraps.
11.8.2007 3:48pm
CrazyTrain (mail):
Huh? Is this a Lewinsky thing or something?

Of course, it is. The right's favorite retort to everything: Clinton did it!
11.8.2007 4:40pm
Guest101:

Of course, it is. The right's favorite retort to everything: Clinton did it!

Or more to the point: We're going to assume that anyone who criticizes Bush for anything did not criticize Clinton for doing something vaguely similar 15 years ago, regardless of whether anyone knew what Clinton was doing, and regardless of whether the Bush critic in question was ten years old at the time Clinton was allegedly doing it.
11.8.2007 4:50pm
PatHMV (mail) (www):
We on the right generally try to reserve the "Clinton did it!" response for situations where the left is trying to say that what George Bush has done is "unprecedented" and somehow unique to his presidency. It's pointing out that George Bush and his policies did not arise in a vacuum, they're not some existential threat to our democracy, and when you look more closely at actual facts and actual history, they're not all that unique. For example, when someone generically complains that President Bush has issued "signing statements," it is in fact relevant to point out that he is not the first President to do so, by a long, long shot. If you want to find fault with his signing statements, a little more work is required, for you to elaborate why his signing statements are different from those of other presidents, if in fact they are.
11.8.2007 5:37pm
Mike& (mail):
Of course, it is. The right's favorite retort to everything: Clinton did it!


Yes, if you criticized/defended Clinton for doing/not doing the same thing Bush did/did not do, but do not similarly criticize/defend Bush, you are a hack. Like John Yoo. And, of course, the "women's lib" groups who defended Clinton-the-rapist/serial sexual harasser but sought to lynch Clarence Thomas. And, of course, the people who attacked the Duke lacrosse players but defend the Jena 6. (The comedy there is that the Jena 6 kids are actual criminals who are being overcharged rather than falsely charged. Yet those six criminals are being hailed as civil rights heros. Weird.) There's plenty of hackery on both sides.

Most people are hacks, so you have the company of many bedfellows. In fact, if you are a hack, you will be invited to more cocktail parties.
11.8.2007 5:42pm
PatHMV (mail) (www):
Right on, Mike&
11.8.2007 5:45pm
Steve:
Calling Clinton a rapist is another example of hackery; indeed, far worse than mere hypocrisy, to my mind.
11.8.2007 6:43pm
Brian K (mail):
For example, when someone generically complains that President Bush has issued "signing statements," it is in fact relevant to point out that he is not the first President to do so, by a long, long shot.

So differences in magnitude/quantity don't matter? If you abstract something enough then you can easily find something remotely similar that someone else did previously. but we're not talking in the abstract...we're talking about the specific actions of this administration in relation to specific actions of previous administrations.

99% of the time "but clinton did it" is an argument of last resort used by someone who has run out of arguments and it is rarely persuasive. just because someone does something wrong doesn't suddenly make it right when people do it afterwards.

and to further underscore the ridiculousness of the "but clinton did it" argument, how many conservatives defended bill clinton by saying "but jefferson did it"?
11.8.2007 6:45pm
Anderson (mail):
Leaving aside the disgusting remark, made of course by Thomas himself, that feminists sought to "lynch" him.

No. Lynching Clarence Thomas would mean seizing him and hanging him from a tall object, typically after torturing him first. As happened to a great many black Americans.

What next? A Jewish nominee gets criticized, fairly or not, and declares that it's a "pogrom" against him? if not a "Holocaust"?

All the while, cheapening the language and making light of the real victims.
11.8.2007 7:25pm
wm13:
Anderson: Um, right. That is why Marty Peretz and Al Sharpton have been drummed out of the Democratic party.
11.8.2007 7:55pm
Mike& (mail):
Lynching Clarence Thomas would mean seizing him and hanging him from a tall object,


Man, I feel a lot of heat from your comments. Sometimes your words jump from my computer screen. It's a good thing I have my flame-resistant suit on.

Chow.
11.8.2007 8:58pm
David M. Nieporent (www):
Anderson, I believe you'll find that he called it a "high tech lynching."
11.8.2007 9:55pm
Waldensian (mail):

Anderson, I believe you'll find that he called it a "high tech lynching."

I could never figure out what a high-tech lynching would be. Synthetic rope, maybe?
11.8.2007 11:27pm
Anderson (mail):
Um, right. That is why Marty Peretz and Al Sharpton have been drummed out of the Democratic party.

The Democratic Party is less like a regiment and more like Washington Square Park, with a fair number of Democrats sleeping on benches, haranguing passersby, etc.

FWIW, Peretz has pretty much checked out himself. Sharpton's an embarrassment; possibly when the Democrats get more respectable black leadership, such as Obama, they'll have the backbone to call out the Sharptons. But the vertebrate Democrat is as fugitive as the ivory-billed woodpecker ....
11.9.2007 9:12am
markm (mail):

I too am curious about who requested the redactions. Perhaps Higazy did not want the details of his confession to get back to his government. Egypt does not tolerate dissidence in any shape or form.

I don't recall that Higazy was a dissident in any manner - and his confession was proven false.
11.9.2007 9:51am
Ken Arromdee:
The idea that black men are unable to control their sexual urges and are a danger to others has long since been a mainstay of racist propaganda, and has resulted in actual lynchings. Thomas didn't just pull the lynching concept out of thin air.
11.9.2007 10:28am