The case, including the bizarre attempt at cover-up, was widely covered in the legal blogs (see here and here), but barely merited coverage by the mainstream press. Columbia Journalism Review has an interesting story about the poor media coverage. [There were two previous diary entries at Daily Kos, brought to my attention after my posting here. Dday posted The FBI, Egyptian Torture, and the Court Opinion That Wasn't on October 23. Albaum followed up the story, with emphasis on the issue of court redaction, in the diary Federal Appeals Court Covers Up Abuse? Both diaries are well-worth the read.]

There was one article in the Washington Post last week:

The FBI interviewer allegedly gave Abdallah Higazy a choice: Admit to having a special pilot's radio in a hotel room near the World Trade Center on Sept. 11, 2001, or the security service in his native Egypt would give his family "hell." Higazy responded by confessing to a crime he didn't commit.... In an unusual move, however, the appeals court withdrew the first opinion within minutes on Thursday and issued a second opinion Friday, with the details of Higazy's allegations removed. "This opinion has been redacted because portions of the record are under seal," the new ruling reads. "For the purposes of the summary judgment motion, Templeton did not contest that Higazy's statements were coerced."

Howard Bashman, who writes a legal blog "devoted to appellate litigation", HowAppealing.com, gets the credit for breaking this story. He was, as already noted, approached by a clerk in the U.S. Court of Appeals, Second Circuit, and told to take down his post of the original court opinion. According to an article posted at ABA Journal, the clerk, one Catherine O'Hagan Wolfe, said the material was redacted to protect Higazy and his family, and that neither the FBI nor the Justice Department requested the material be censored. But a number of commentators have seriously questioned that.

A Look at Censorship in Action

OK, let's compare the versions and you make up your mind. This is from the currently posted (redacted) version of the opinion. The excerpt picks up during a description of the FBI polygraph of Higazy, a procedure requested by Higazy himself, although he found it physically painful:

Templeton unhooked the polygraph, and according to Higazy, called Higazy a baby and told him that a nine-year-old could tolerate this pain. Templeton left the room to get Higazy water, and upon his return, Higazy asked whether anybody else had ever suffered physical pain during the polygraph, to which Templeton replied: "[i]t never happened to anyone who told the truth." Higazy alleges that during the polygraph, Templeton told him that he should cooperate . . . . This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy's statements were coerced. Higazy then gave Templeton a series of explanations as to how he obtained the radio. First, he admitted that he stole the radio from J&R, an electronics store. Then he recanted this story, and explained that he found it near J&R. Higazy next denied ever seeing or possessing the radio. Templeton allegedly banged on the table and screamed at Higazy: "You lied to me again! This is what? How many lies?" Higazy then lied again, this time telling Templeton that he found the radio on the other side of the Brooklyn Bridge. Higazy recalled that Templeton "turned so red I thought he was going to hit me." Templeton accused Higazy of being a liar, and said that he would "tell Agent Sullivan in my expert opinion you are a terrorist." Finally, Higazy told Templeton that he had stolen the radio from the Egyptian military and had used it to eavesdrop on telephone conversations. Templeton then wrote out a statement providing that Higazy had stolen the radio from the Egyptian military, which he asked Higazy to sign.

Among other things, Higazy's experience and reactions are a textbook case in how to elicit a false confession. But why did Higazy cave? Was he a crybaby, as his interrogator suggested? Consider the fully uncensored version, and note that the court accepts this version, even if it redacted it later (emphases are added).

Templeton unhooked the polygraph, and according to Higazy, called Higazy a baby and told him that a nine-year-old could tolerate this pain. Templeton left the room to get Higazy water, and upon his return, Higazy asked whether anybody else had ever suffered physical pain during the polygraph, to which Templeton replied: "[i]t never happened to anyone who told the truth." Higazy alleges that during the polygraph, Templeton told him that he should cooperate, [begin unredacted portion] and explained that if Higazy did not cooperate, the FBI would make his brother "live in scrutiny" and would "make sure that Egyptian security gives [his] family hell." Templeton later admitted that he knew how the Egyptian security forces operated: "that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure." Higazy later said, "I knew that I couldn’t prove my innocence, and I knew that my family was in danger." He explained that "[t]he only thing that went through my head was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine." Higazy explained why he feared for his family: The Egyptian government has very little tolerance for anybody who is -- they’re suspicious of being a terrorist. To give you an idea, Saddam’s security force — as they later on were called his henchmen—a lot of them learned their methods and techniques in Egypt; torture, rape, some stuff would be even too sick to . . . . My father is 67. My mother is 61. I have a brother who developed arthritis at 19. He still has it today. When the word ‘torture’ comes at least for my brother, I mean, all they have to do is really just press on one of these knuckles. I couldn’t imagine them doing anything to my sister. And Higazy added: [L]et’s just say a lot of people in Egypt would stay away from a family that they know or they believe or even rumored to have anything to do with terrorists and by the same token, some people who actually could be — might try to get to them and somebody might actually make a connection. I wasn’t going to risk that. I wasn’t going to risk that, so I thought to myself what could I say that he would believe. What could I say that’s convincing? And I said okay. [End redacted portion] Higazy then gave Templeton a series of explanations as to how he obtained the radio. First, he admitted that he stole the radio from J&R, an electronics store....

The FBI Is Not Clean on Torture

What else can we conclude? In the controversies over CIA and military torture at Guantanamo, Abu Ghraib and elsewhere (and particularly over the interrogaton of Abu Zubeida), the FBI were portrayed as whistleblowers, as real interrogation professionals who eschew torture. But here we can witness the FBI practicing a form of torture - threats to family - to induce a coerced confession. And then somebody tried to cover up the tracks when the embarrassing information popped up in a legal opinion. Apparently it was posted for only minutes before it was withdrawn, but it was too late for the government censors.

What else can we conclude but that this is how some, not all, FBI interrogations are conducted. How often does this happen? We don't know. How much is covered-up? We don't know, mainly because we can't estimate things done in secret.

But we do know something about FBI history. During the 1950s and 1960s, the FBI ran a domestic counterintelligence campaign targeting U.S. dissidents and radicals, Cointelpro. This is from Brian Glick's 1989 book, War at Home:

In early 1971, the FBI's domestic counterintelligence program (code named "COINTELPRO") was brought to light when a "Citizens Committee to Investigate the FBI" removed secret files from an FBI office in Media, PA and released them to the press.... When congressional investigations, political trials and other traditional legal methods of repression failed to counter the growing movements of the 1950s, '60s and '70s, and even helped fuel them, the FBI and police moved outside the law. They used secret and systematic methods of fraud and force, far beyond mere surveillance, to sabotage constitutionally protected political activity. The purpose of the program was, in FBI Director J. Edgar Hoover's own words, to "expose, disrupt, misdirect, discredit and otherwise neutralize" specific groups and individuals. Its targets in this period included the American Indian Movement, the Communist Party, the Socialist Worker's Party, Black Nationalist groups, and many members of the New Left (SDS, and a broad range of anti-war, anti-racist, feminist, lesbian and gay, environmentalist and other groups). Many other groups and individuals seeking racial, gender and class justice were targets who came under attack, including Martin Luther King, Cesar Chavez, the NAACP, the National Lawyer's Guild, SANE-Freeze, American Friends Service Committee, and many, many others.... Much of what was done outside the law under COINTELPRO was later legalized by Executive Order 12333 (12/4/81) [under President Ronald Reagan].

One could argue that the practices of Cointelpro did not involve torture or the elicitation of false confessions. But they do reveal a pattern of operating in secret and outside the law.

Some terrible things have been happening in this country. The naive belief that the FBI is somehow above the barbaric practices of the CIA and the military, with the latter highlighted over the waterboarding issue roiling the Mukasey nomination, must give way to an informed and sophisticated view of how the government really operates, particularly its police branches. We got to peek at how some of some of government secrecy operates to protect its police agents and their abuse. We must demand an end to such secrecy, a restoration of the FOIA to its full 1970s power, and the prosecution of those who use torture or cruel treatment, and those who pursue it as state or agency policy.

Blogger Steve Bergstein summed up the Higazy revelations:

That's how they do it, folks. If a foreign national is suspected of terrorist activity, the FBI will threaten to have a brutal foreign government punish his family. And punishment in a place like Egypt is not like punishment here. Punishment here consists of solitary confinement and a very long prison term. Punishment over there is torture.

Update: For those who really like to get into the nitty-gritty of the case, Mary2002 gave an important link in the comments. She noted that the information that was redacted in the court opinion had been available elsewhere publicly online. The matter at the link gives evidence that the FBI had been conducting a cover-up on Higazy for some time.

Here's the link, and a brief explanation from the site as to what it contains (and a tip of the hat to all the brilliant and informative comments from the readers). Note that the matter below was written before the Second Circuit opinion, and before Agent Templeton, for the purposes of the summary judgment motion, "did not contest that Higazy's statements were coerced":

[Posted] are pages 2-11 of the report on the investigation conducted by the U.S. Department of Justice's Office of the Inspector General (OIG) prepared by Deputy U.S. Attorney David N. Kelley in behalf of U.S. Attorney James B. Comey, Southern District of New York, on how an FBI polygrapher came to extract a false confession from Abdallah Higazy. The first page of the report was not available.... The OIG report's main conclusion, that "there is insufficient evidence to corroborate Higazy's allegations that the polygrapher threatened him" was foreordained by the FBI's deliberate policy of not audio- or video-recording polygraph examinations, a policy that ensures there will be no record of any such misconduct by a polygrapher. Higazy's lawyer, Robert S. Dunn, has characterized the OIG report as a whitewash. This view is supported by the fact that the OIG failed to even review Higazy's polygraph charts before filing its report. That the OIG was biased against Higazy and in favor of the polygrapher is evidenced by the fact that in reporting on its interview of Higazy, almost everything Higazy said is caveated with prefatory words such as "Higazy stated," "Higazy said," "According to Higazy," and "According to Higazy's account," whereas in reporting on the polygrapher's interview, such prefatory remarks appear relatively infrequently, and much of the polygrapher's account is presented as if it were undisputed fact.

Also posted at Invictus