Thursday, November 1, 2007

A Tale of Two Decisions

Thanks to Dennis for pointing out this story of "A Tale of Two Decisions" by Steve Bergstein with references to stories at How Appealing, Appellate Law and Practice, and Steve's own blog on Second Circuit civil rights decisions at Wait a Second.

The long and short of it is that the U.S. Court of Appeals for the Second Circuit issued its decision in the case of Higazy v. Templeton on October 18, 2007 and then, within hours, withdrew its original opinion and re-released it in redacted form. The case was about an Egyptian student the U.S. government interrogated and detained in the wake of the 9/11/01 terrorist attacks (details described in the accounts linked above). The portion deleted from the court's opinion (beginning at p. 7) described the way his so-called confession was coerced. The Second Circuit overturned the trial court's ruling and decided that Mr. Higazy could, after all, proceed with his lawsuit challenging the government's use of a coerced confession to file criminal charges that claimed he made inconsistent and false statements about whether the radio found in his hotel room was his and the legality of his subsequent detention.

Now courts issue, retract, and reissue court opinions all the time, but normally only because a typographical error is found, a point of law needs clarification, or the court rehears the case or otherwise reconsiders and changes some aspect of its decision. But the retraction here was remarkable because it was, in effect, censorship and what some have characterized as a blatant attempt by the government to try to cover up exactly what its agents did to Mr. Higazy. The court's opinion no doubt had been circulated among the judges and law clerks involved in the case before it was released (almost always the case and almost certainly for a high-profile decision such as this), and apparently none of them perceived any error in the summary of events contained in the original opinion (which the government alleged was information from an appendix that had been placed under seal by the trial court). Yet within hours, the opinion had not only been withdrawn but a court official actually telephone Howard Bashman to try to get him to remove his copy of the original opinion from his blog, How Appealing. Mr. Bashman refused and the opinion still appears there.

Having formerly served as a law clerk on a federal court of appeals (the Seventh Circuit), I can only imagine the uproar this has caused within the court and legal circles (not to mention the grief and attention given to the judge and law clerk(s) responsible for the redacted portion of the opinion). But for ordinary non-lawyer citizens of the U.S. and the world at large, this whole fiasco should come as yet another alert about not only this kind of conduct from the U.S. government in its inept attempts to both wage war and "secure the peace," but also the long-term effects of the way it has manipulated the U.S. legal system and seriously eroded everyone's constitutional protections. Someday the U.S. will finally extract itself from Iraq (assuming, God forbid, it does not create another conflict in or with Iran). But the actions of the Bush lawyers and judges and the precedents and appointments made during these years will haunt us all for a very long time.

I confess that in the last few years I, who should know better, have tended to barely skim over these kinds of stories, simply because they sicken me so. The law, as well as the legal system, sadly is not the same as it was when I was in law school in the late 1970's and early 1980's. It was hardly perfect then, either, but back then even the Republicans (sometimes especially the Republicans, who used to stand for less government intervention in all realms of life) stood for constitutional principles. Something's gotta change now for the better, but it won't if we keep putting our heads in the sand, thinking that it will all somehow blow away if we can simply see our way to the end of the Iraq war.

P.S. On a somewhate related topic, listen to what Stuart Herrington had to say the other day about changes in the U.S. governements methods of interrogation and use of torture (and why they've been ineffectual, not to mention immoral) on NPR's Fresh Air.

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