Appeals Clerk Explains Why Details of Alleged FBI Coercion Withdrawn from Opinion
The federal appeals court clerk who asked blogger Howard Bashman to take down an opinion from his How Appealing site because of security concerns has told the Washington Post the ruling was not withdrawn at the request of the Justice Department or FBI.
The opinion by the New York City-based 2nd U.S. Circuit Court of Appeals revived a lawsuit by Egyptian student Abdullah Higazy who was detained after the Sept. 11 terrorist attacks. Higazy claimed an FBI agent had coerced him to make a false confession that an aviation radio found at the hotel belonged to him. The FBI suspected the radio was used to guide the planes used in the attacks, but a pilot later claimed the radio as his.
Bashman and other bloggers did not take down the unredacted opinion.
The appeals court later issued a new opinion with information omitted that had been filed under seal. Left out were details of Higazy’s charges, in which he claimed an FBI agent told him that if he did not cooperate, he would “make sure that Egyptian security gives [his] family hell.”
Some bloggers have speculated that the information was removed because it was embarrassing to the government rather than a security concern.
But Catherine O’Hagan Wolfe, Clerk of Court for the 2nd Circuit, told the Post the redacted information was originally sealed to protect Higazy and his family. She said the court made the decision to remove information filed under seal, and there was no “nefarious intent at work.”
In an interview with ABAJournal.com, Bashman says the judges made a mistake “in thinking they could unring the bell.” He reviewed the opinion carefully after the clerk called him and saw nothing that needed to be kept secret, so he left it up. When he saw the new, redacted opinion the next day, he concluded that “the most newsworthy and noteworthy portions” had been removed.
Bashman has come to the conclusion that one or more of the parties asked that the information filed under seal be removed under the opinion. “I am not convinced the 2nd Circuit made a mistake by issuing the opinion in its original form,” he says.
Updated at 3:15 p.m. to add Catherine O’Hagan Wolfe’s full title.
