Commentary: Court Learns Best Way to Keep a Secret Is Not by Posting It on the Internet

Howard J. Bashman
Special to Law.com
11-05-2007

Related: Bashman Archive

Timely coverage of appellate decisions is one of the main emphases of the "How Appealing" weblog that I author -- but on those occasions when I have to be away from my computer due to my day job as an appellate lawyer, one or more readers of my blog will often e-mail me to alert me to the issuance of an especially noteworthy ruling.

Exactly that happened several times on the morning of Oct. 18 of this year, after the 2nd U.S. Circuit Court of Appeals posted online its ruling in a case captioned Higazy v. Templeton.

Abdallah Higazy is an Egyptian national who was staying at a hotel across from New York's World Trade Center on the night of Sept. 10, 2001. He was evacuated from the hotel along with other guests on the morning of Sept. 11, after two passenger jets slammed into the two largest of the World Trade Center towers.

Sometime thereafter, hotel employees claimed to have found in Higazy's hotel room a radio that could be used to communicate from the ground with someone aboard an airliner. When Higazy returned to the hotel to retrieve his belongings several months later, an FBI agent confronted him about the radio, which Higazy initially said did not belong to him.

The FBI detained Higazy and later, during the course of a lengthy and intense interrogation, Higazy said that the radio did belong to him, leading the FBI to believe that he was involved in the conspiracy that resulted in the 9/11 attack on the World Trade Center. In fact, Higazy had nothing to do with that attack or the criminal acts surrounding it.

Nearly one month after Higazy was taken into FBI custody, an airline pilot who had been staying in that same hotel returned to inquire about his property -- which included an airline radio transceiver. The FBI promptly confirmed that the transceiver that supposedly had been found in Higazy's hotel room actually belonged to the pilot and that the pilot and Higazy had had no contact with each other. Higazy was subsequently released from custody, after 34 days in federal detention.

Higazy later sued the FBI agent who conducted the interrogation that had led to his false confession. After the U.S. District Court in New York City granted summary judgment in favor of the agent, Higazy appealed to the 2nd Circuit. And, on the morning of Oct. 18, 2007, the 2nd Circuit issued a decision reinstating one aspect of Higazy's lawsuit against that FBI agent.

That same morning, while I was at my clients' 3rd Circuit mediation, I received several e-mails alerting me to the 2nd Circuit's issuance of the Higazy decision. Early that afternoon, I received a follow-up e-mail telling me that the 2nd Circuit had removed the decision from its Web site. When I returned to my office shortly after 3 p.m. that day, the 2nd Circuit's Web site still featured a link to the Higazy decision, but the link destination site merely read, "The opinion has been withdrawn."

At 3:24 p.m., I posted an item to "How Appealing" noting that the 2nd Circuit had issued its decision in the Higazy case earlier in the day but had later withdrawn it. In addition, I linked to another blogger's post about the substance of the 2nd Circuit's ruling. I concluded my post by asking any readers who had saved an electronic copy of the decision to forward it to me so I could post it on my blog.

Less than an hour later, a regular reader of my blog sent me a PDF copy of the Higazy decision that the 2nd Circuit had posted to the Internet earlier in the day. Because I knew this particular correspondent to be a trustworthy source, I had little doubt that the attachment was indeed the Higazy ruling. Nevertheless, before posting it to the Internet myself, I looked at the file to confirm that it conformed to what I had come to recognize as an actual 2nd Circuit decision. And indeed it did.

Thus, at 4:15 that afternoon, I posted again, this time explaining that the decision now available for download via my blog had been withdrawn from the 2nd Circuit, after the court had initially put the decision online earlier that morning. (The 2nd Circuit ordinarily posts its new rulings online by 10:30 a.m. Apparently the Higazy decision remained online on Oct. 18 until about noon. My purpose in posting the ruling was to allow readers to see for themselves how the 2nd Circuit had apparently decided to rule in this very newsworthy case, without having to rely solely on the accounts of some other blogger who happened to write about the decision before it was taken off-line.)

After making the Higazy decision available for viewing and download via my blog's Web server, I turned my attention to other matters. Then, around 5:30 p.m., an unfamiliar 646 prefix telephone number appeared on my office's caller ID. On the line was Catherine O'Hagan Wolfe, head of the 2nd Circuit clerk's office, asking me to remove the Higazy decision from the Internet, much as the 2nd Circuit itself had done.

In the more than five years that I have operated my blog, this marked the first time that anyone connected with any court had ever asked that I take off-line a decision that the same court had itself previously posted to the Internet. I was interested in learning from Ms. Wolfe why the 2nd Circuit had removed the decision. All she would say was that the original ruling referenced information that had been filed under seal with the 2nd Circuit. She also told me that the court intended to post online at 10:30 the next morning a revised version of the decision omitting reference to the information under seal.

Ms. Wolfe did not identify for me which information in the original version of the Higazy decision had been filed under seal, nor did she say whether the 2nd Circuit's decision to take its original version of the decision off-line occurred in response to a request from one of the parties, and, if so, which one. I responded to Ms. Wolfe that her request was unprecedented and that I would need to consider it further before deciding what to do.

After that phone conversation, I decided to read closely through the Higazy decision to see whether anything in the decision seemed so inflammatory that I should join the 2nd Circuit in taking the decision off-line. However, I did not find anything that resembled an important government secret or information that would prove harmful to anyone. I also realized that the 2nd Circuit's ruling had been available on its own Web site for nearly 90 minutes, and available on my blog for nearly an hour and 45 minutes, and that, furthermore, the ruling was, by that time -- almost 6 p.m. on Oct. 18 -- also in the possession of many other individuals who undoubtedly were circulating it to an even wider audience.

I thus decided to leave the decision up at my blog's Web server, fully confident that, had I taken the decision down, that same information would have appeared elsewhere immediately, causing me to have looked quite foolish. As promised, at 10:30 a.m. on Friday, Oct. 19, the 2nd Circuit posted to its Web site a revised version of the Higazy ruling from which the details of the FBI agent's interrogation of Higazy had been redacted. The redaction notice stated that, for purposes of the summary judgment motion, it was undisputed that Higazy's confession had been coerced.

And now you know the story of how my blog became, for a time, the one place on the Internet where someone could learn the details of how the FBI caused an innocent Egyptian young man to falsely confess to having been involved in the 9/11 attack on the World Trade Center. There has been much speculation that it was the FBI or the federal government that caused the 2nd Circuit to withdraw the original opinion, to avoid being cast in a bad light by the opinion's description of Higazy's interrogation, which some have described as amounting to torture.

I have no doubt that the original version of the 2nd Circuit's ruling in the Higazy case was the version that the three-judge 2nd Circuit panel intended to make public. If the details of the interrogation were irrelevant, the original version of the decision would not have provided them. And if the judges thought that those details should have remained private, the original version of the opinion would not have described them. Perhaps the judges "forgot" that this information had been filed under seal, and, had they remembered, they would have drafted a different opinion to be posted initially to the Internet.

For better or worse, once the 2nd Circuit posted its original opinion online, there was no taking it back. What that court should have done, upon later realizing that any information under seal in the original opinion was under seal no longer, was to reissue on Oct. 18 the opinion that had originally been posted on the Internet. Instead, you'll have to access the original version of the 2nd Circuit's ruling hosted at "How Appealing" to see how the federal government caused an innocent man to confess to involvement in the Sept. 11 attacks.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.