The Law Explained: FBI Interrogation Edition
MichaelW on Oct 22 2007 at 7:23 pm | Filed under: Law, MichaelW's Page
The Appearance Of Impropriety
There is a minor brouhaha percolating at the blog-level right now regarding a Second Circuit decision that was issued, withdrawn, and then re-issued in redacted form. The small bit that was redacted is what’s causing all of the controversy because it concerned alleged threats from an FBI agent towards the family of an Egyptian detainee being questioned; threats that the plaintiff detainee (Mr. Higazy) took seriously enough to falsely confess to owning a radio transmitter that was not his. A good recitation of the facts can be found here. Howard Bashman and Steve Bergstein, among others, are rather puzzled by the appellate court’s redaction in general, and its pressuring of 
Bashman to take down his posting of the unredacted decision. Meanwhile, because of the strange issue-withdrawal-reissue of the opinion, Patterico thinks he’s caught the government playing cover-up:
Did you ever wonder what our government wants to keep secret — and what courts allow them to keep secret?
You’ll get to see one such example in this post, courtesy of Howard Bashman, the legal blogger at How Appealing.
It ain’t pretty, folks.
[snip]
I have found, read, and excerpted below the portion that the Second Circuit tried to take back. My judgment is that the material was sealed, not to protect anyone from harm, but to protect the government from embarrassment.
Summary Judgment: When Facts Are Not Facts
Ignoring for the moment the futile attempt by the Second Circuit to “unring the bell,” as it were, what seems to have been lost in the discussion is how the procedural posture of the case treats the seemingly salacious details of the allegedly coerced confession as proven facts, when they are merely Mr. Higazy’s recitation of the events taken for granted. In short, this case was decided on the defendant’s summary judgment motion, which accepted the alleged facts as true for the argument, and asked the court to dismiss the case because Mr. Higazy’s claims were legally insufficient to reach a jury. The facts of the coerced confession, therefore, have not been proven, and are not facts as yet.
Indeed, the interrogator, FBI Agent Templeton, is on the record as denying that he threatened the plaintiff at all (see unredacted 2d Cir. Opinion at 42-43). But that denial would not be presented in the motion for summary judgment because, as a matter of law, such a motion can only be granted where there are no material facts in dispute, such that the moving party (Templeton in this case) accepts the factual record as already established, and the court views the facts in a light most favorable to the non-moving party (Higazy). The way to defeat such a motion is to show that there is a genuine factual issue for trial — i.e. that the jury needs to decide what the facts of the case are. If there are no genuine issues as to the facts, then the court can take the case, apply the relevant law and decide which party wins without having to go to trial.
Boiled down to the bare bones, Templeton asked the court to rule in his favor because (according to him) even by accepting the facts as alleged by Higazy and viewing them most favorably to the plaintiff, the law still says Templeton wins. Templeton may not actually agree that he threatened Higazy (and, in fact, denies it altogether), but for purposes of ending the case early (i.e. without going to trial) he was willing to let that allegation go unchallenged so that the judge could decide the merits of the case on the law alone. If Templeton had challenged the allegation, there would be an issue of fact for the jury to decide, and he could not bring the motion at all.
Questions For The Jury
Given this procedural posture, it is not at all settled that Templeton issued any threat to Higazy. For Higazy to have falsely confessed, it sure does seem likely that Templeton threatened him and/or his family, but until Templeton tells his side of the story we just don’t know. I can imagine a scenario where Templeton asked Higazy if he understood the consequences of his continued denials as to the radio in order to get Higazy’s co-operation: “If we have to go to trial on this, you know that your name will be all over the papers, and that somebody in Egypt is going to make the connection to your family, don’t you? What do you think will happen to them when all of this gets out?” That would not be a threat, but instead an allusion to the potential consequences should Higazy’s name be connected with terrorist activities, all events beyond the control of Agent Templeton. However, Higazy may take such an allusion as being a threat by Templeton to cause such adverse consequences unless Higazy gave Templeton what he wanted.
This entire scenario is pure conjecture on my part, but its a scenario that (a) is entirely plausible, and (b) makes Templeton’s interrogation seem less sinister. When coupled with that portion of Templeton’s affidavit quoted by the concurring opinion (at p. 43), the scenario seems much more likely:
[On January 8,] I was met by the attorney who informed me his client would not take this [second polygraph] test because the writer had threatened him, and his client was now denying ownership of the radio. . . . The accusation of the threat was denied by writer . . . . The attorney requested that I hear the complaint directly from the client. . . . [Higazy] stated “all I can remember is you saying that you would see to it that the Egyptian security service make my parents lives a living hell.” Writer denied to [Higazy] and the attorney that the threat was made . . . . [W]hen informed [by the writer] that [Higazy] was advised by the writer of the attorney’s presence and availability at any time, the
attorney asked [Higazy] if what the writer had said was true, [Higazy] advised the attorney that he couldn’t remember. The attorney asked [Higazy] again, “did he (the writer) tell you that?” [Higazy] responded, “I can’t remember. I’m not a human tape
recorder.”
Conclusion
To recap, Patterico and some others think that the FBI is trying to cover up some rather unethical conduct in the aftermath of 9/11 by keeping a small portion of the Second Circuit opinion sealed. I can’t say that the FBI is not doing so, but judging from the procedural posture of this case (i.e. ruling on a summary judgment motion), I don’t think that it is at all possible to say that the allegations against Agent Templeton are true. That has not been established. Those claiming a cover-up have taken the allegations as true because Templeton did not outright deny them in his motion. However, when the procedural minutiae is brought to light, it looks less like a case of cover-up and more like bureaucratic incompetence blown up into conspiratorial nonsense.
Technorati Tags: The Law Explained, summary judgment, FBI interrogation, coerced confession, Higazy v. Millenium Hotel, procedural posture
Sphere: Related Content9 Responses to “The Law Explained: FBI Interrogation Edition”
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Why do you think the redacted portion was redacted?
Separate point:
I can imagine that scenario too. It sounds like a threat to me.
It took something to get the guy to confess to something false.
I honestly don’t know, Patrick. Your guess is as good as mine, and I certainly don’t mean to infer that Templeton is in the clear here. But the facts aren’t known yet, and Higazy’s memory is less than sterling (e.g. just read the excerpted portion of Templeton’s affidavit).
My best guess is that Templeton tried to scare Higazy into telling the “truth” (as the FBI saw it) and reminded the suspect what would happen if the story got out. Higazy took that as a threat since he was prbobably pretty frickin’ scared at the time and just wanted to get out of the situation with the least damage possible. Classic prisoner’s dillema.
The redacted portion contained personal information about Higazy, and I’ve read elsewhere that he was the one requesting that such info be kept under seal. I don’t know if that’s true or not, but given how much info regarding the alleged coerced confession is contained elsewhere in the opinion, it seems more likely than not that Higazy was the one who wanted the seal, not the government.
Of course, if the government requested the redactions in order to conceal evidence of their wrong-doing I’m all for some sunlight. At this stage of the game, however, it looks to me like people are jumping to conclusions.
I wouldn’t call that a threat, but that doesn’t mean that Higazy idn’t take it as one. Even if Templeton said exactly what Higazy claimed, I’m still not sure that there was legal coercion — IOW, I thin the concurrence makes some strong points.
In the end, it will be up to a jury unless they settle. My only point is that allegations in a complaint shouldn’t be construed as fact. The procedural posture of the case meant that Templeton didn’t really tell his side of the story and it may turn out that Higazy’s memory of the events is not terribly reliable.
Of course, like I said before, if Templeton stepped over the line I hope he gets nailed. And if the reason that the particular section was redacted was to cover-up Templeton’s wrongdoing, then have at it. But in my opinion, there is still a lot of discovery left on the table at this point to make that call.
There are a couple of questions here: 1) why was the opinion redacted? and 2) what really happened?
They are related, but I think the first is the truly interesting one — and it is the one you haven’t answered: why was this information under seal?
I’d really like to get an answer to that. You say my guess is as good as yours . . . but you don’t seem to have a guess.
I think if you really thought about that question, it might affect your view of the second question.
As to the second question, I understand that summary judgment takes the plaintiff’s version of the facts as true, and that it is a legal fiction. But I think you’re reading too much into the legal fiction, and giving short shrift to the reality of the situation.
Note that, even for purposes of summary judgment, the unredacted opinion contained this passage:
This, for some reason, was redacted by the court, because it related to information submitted under seal.
Why?
The quoted passage makes it pretty clear that Templeton is admitting that he raised the topic of the Egyptian security forces during the interrogation in which he managed to get Higazy to confess to something that he didn’t do.
You’re a rational guy who has read the opinion, and so the best spin you can put on these facts is to have Templeton doing a clumsy imitation of a Mafia thug — like the guys in suits and shades in the Monty Python skit who threatened the colonel:
It sure would be a shame if your family was to get tortured in Egypt, Higazy.
But I’m not threatening you!
Well, actually, I do have a guess: Higazy requested the redaction. So far everyone is operating on the assumption that the government requested the redaction. I’ve read elsewhere that Higazy did, but I don’t know if that’s true. I haven’t read anywhere that the government specifically requested it, and thusfar you have the most info about the case at all. Do you know who made the request.
If indeed the government made the request, I admit that the cover-up theory has legs. But it’s certainly not unheard of for the government ot request a seal where potentially damaging personal information about the accused may be disclosed for no good reason (and especially where the government knows it wrongly accused an innocent man). You’re prosecutor. Surely you’ve seen this before.
C’mon, Patrick. You know that’s from a deposition, and that it was nothing like an admission. Higazy’s lawyer asked something like “Were you aware of what Egyptian authorities do to suspected terrorists?” That Templeton knew the real score wrt Egyptian “techniques” is not an admission of guilt.
To be fair, however, Templeton certainly knew what he was doing in raising the spectre of Egyptian thugs. But I still don’t see how pointing out the reality of the situation (i.e. that they would deal harshly with Higazy’s family) is a “threat”. Even if Templeton swore up and down that he would see to it that the thugs made their life a “living hell” as I understand it there’s nothing illegal or unconstitutional about lying to a suspect. When it comes to coerced confession, of course, if Templeton got up on the stand and denied making the threats whe he really did, you would have a problem. But what if he admitted it? Wasn’t that the basis of the summary judgment motion?
As an aside, Heh! I hadn’t seen that skit in a long while.
Otherwise, I’ll stand by what the jury decides. But I think that Templeton had a good legal argument. The court’s decision eventually rested on the finding that there was an issue of material fact that should go to the jury. If they think that a threat was issued which resulted in a coerced confession, then sobeit.
Up to this point, Templeton hasn’t told his side of the story. Based solely on the excerpted affidavit, I’d have to say that Templeton plans to deny any such threat was ever issued. Higazy’s memory of the events also seems suspect (I mean, c’mon, the guy was scared witless). If I were Templeton’s attorney I would make mince-meat of Higazy’s testimony (”What exactly did Mr. Templeton say? Is it true that you don’t trust your own memory of the events? Did you say that ‘I can’t remember. I’m not a human tape recorder.’?”, etc.). The good money says that Templeton prevails. YMMV.
You say:
I don’t. But I have an educated guess, and it’s quite different from yours.
As I said in my second update to my post:
In other words, I can see Higazy wanting to redact the passage:
But, for the life of me, I can’t imagine why he would redact much more than that. Specifically, I can’t understand why Higazy would ask the court to seal information that ultimately surfaced in this passage:
What? Just to redact the part about how he had family in Egypt? Nah, the redacted opinion mentions that on page 7. To redact the part about his family being threatened? Nah, the concurrence mentions that on page 42.
What is taken out are the ugly details of how the threat occurred.
And I have little doubt that it did. Why did this guy confess to something he didn’t do? That’s a fact you can’t get around, and Higazy’s explanation makes perfect sense: he was coerced. The fact that he might not remember whether he was offered an attorney — the phrase as to which he said he was not a human tape recorder — says little about his ability to recall whether his family was threatened. That, you tend to notice — and remember.
You and I don’t seem to disagree that Templeton raised the spectre of Egyptian thugs — and on this record, it’s hard to disagree with that assertion. Where we do disagree is that it is possible to do so without sounding threatening. I think the fact that Templeton at least made the allusion — and it is clearly a fact from the entire context — shows that he was engaged in behavior that the government didn’t want to have released . . . at least in the context of a clearly innocent plaintiff.
Hey, you tell me why so much was under seal — more than Higazy would have any reason to ask kept secret.
Educated based on what? That almost an entire paragraph was redacted? I don’t know about you, but in my experience that’s the norm for government work. Just because some stuff that may seem innocuous fall under the black pen doesn’t meant there was anything nefarious in the redaction. All too often stuff that should be public is redacted out of an abundance of caution (or sheer spitefulness by one party), but that doesn’t automatically equate to a cover-up.
Well, whether he was actually coerced and whether he merely thought he was are two different questions. Neither of which has been answered. Moreover, how can bringing up the obvious (i.e. that Egyptian authorities may not deal kindly with his family once they suspect he is involved with terrorism) be considered coercion in the legal sense? Are investigators going to be restrained from stating plain facts? That would be an absurd outcome of this case.
Wait a minute. Go back to the opinion and you’ll see that (a) Higazy initially waived his right to an attorney, and (b) when he was being questioned by Templeton his attorney was standing right outside. In fact, I quote that last section from the opinion:
I may be wrong, but it appears that Higazy’s attorney was standing right outside when the alleged threat was made. Does it make sense that Templeton would be issue personal threats in such a situation?
Again, my reading of why Higazy “confessed” was simply that he was scared out of his mind. He didn’t need Templeton to threaten anything about Egyptian authorities because he already knew about the consequences. That Templeton raised the issue was likely just a ploy to play on Higazy’s fears. Templeton wouldn’t have needed to claim that he would personally make sure the Egyptian authorities did anything. Higazy would have already assumed that they would do something with or without Templeton’s efforts. To claim, as he does now, that this was a threat from Templeton ignores the fact that of the two of them, Higazy knew much, much more about what would happen in Egypt than Templeton. Accordingly, it seems much more likely to me that Higazy was already fearing the Egyptians getting involved prior to Templeton saying anything. Once the subject of Egypt came up, the non-human-tape-recorder let his fears get the best of him.
Sadly, I can’t blame the guy. If I thought that my being suspect in 9/11 would get my family tortured or worse, I’d probably crack like an egg. Templeton wouldn’t have had to even raise the issue because I would have already considered the possibility.
Agreed, although I think we differ on other important points as well, such as what the redaction actually means if anything.
My best guess is that the redaction was over inclusive simply to avoid the argument of what should and should not be redacted. It’s easier to simply redact the whole paragraph so as to assure that nothing can be sussed from the surrounding context than to fight the endless arguments as to why some words should be blacked out or not.
Another point that I haven’t seen addressed is why the court would go along with the redaction if the government indeed requested it and the reason was as you stated. Don’t forget that Templeton lost (partially) on the Bivens action wrt to the Fifth Amendment claim. The Second Circuit certainly did not seem to prefer his arguments as to whether the coerced confession was a violation of Higazys rights. And they stated several times that they were accepted as fact, for the purposes of the motion, that the confession was coerced. Why would they then agree to redact the most salient evidence of that coercion? What interest does the Second Circuit have to help the FBI cover up its misdeeds? As far as I can see, the answer is “none.”
Forgive the spelling mistakes above, and the fact that it will be until tomorrow before I address this further. You’ve got three more hours to this day than me, Patrick, and I do need some sleep. I’ll respond further tomorrow if you have more comments.