Blogger Posts 9/11 Opinion Withdrawn Over Security Concerns

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Updated: A federal appeals court quickly withdrew an opinion issued yesterday in a case filed by a Sept. 11 detainee because of concerns it contained information filed under seal.

The opinion by the 2nd U.S. Circuit Court of Appeals revived a lawsuit by Egyptian student Abdullah Higazy who was detained after the attacks. Higazy claimed an FBI agent had coerced him to make a false confession.

The court was not quick enough for the blog How Appealing, which posted the opinion after a reader sent it along by e-mail. A clerk later called blog author Howard Bashman to ask him to take it down, but he has not complied.

The court planned to issue a revised opinion this morning, the New York Sun reports.

Bashman told ABAJournal.com that by the time he posted the opinion on his blog, hosted by American Lawyer Media, the ruling had already been viewed by hundreds if not thousands of individuals, and it was widely circulated by e-mail to those who were interested in the case.

“In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the Internet, referred to information contained in an appendix whose contents remained under seal,” Bashman wrote in an e-mail.

“No one from the 2nd 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 2nd Circuit to remove the opinion from its Web site after the opinion had been posted there for all to see and access.”

“If there is a lesson here, it is that courts should not make publicly available over their Web sites decisions that they do not want to make available to the public, and if a court does so, there is no way to ‘undo’ a decision’s public issuance.”

The 2nd Circuit wrote in its opinion that Higazy could sue an FBI agent for allegedly coercing him to admit he had an aviation radio in his hotel room at the time of the attacks, the Sun reports. Higazy claims he confessed after the agent told him his family in Egypt would be harassed if he didn’t cooperate. Higazy was jailed for 34 days before a pilot who stayed at the hotel said he owned the radio.

The court wrote that the agent “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.”

When the new opinion was later released, it left out details of Higazy’s charges, in which he claimed an FBI agent told him that if he did not cooperate, Egyptian security forces would “make sure that Egyptian security gives [his] family hell.”

The clerk who asked Bashman to take down the opinion, Catherine O’Hagan Wolfe, later told the Washington Post in a story published Oct. 25 that the the redacted information was originally sealed to protect Higazy and his family. She said it was the court–and not the Justice Department or FBI–that made the decision to remove information filed under seal, and there was no “nefarious intent at work.”

Originally posted at 06:18 AM on 10-19-2007. Updated at 5:53 AM on 10-25-2007.

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