Media Sphere

An open government is central to democracy; most people would argue that certain information must be kept secret to protect national security and to preserve privacy rights, but the government should not be able to remove important details simply because they might make them look bad. In Higazy v. Templeton, a recent case before the U.S. Court of Appeals 2nd circuit, the decision was posted on the web last Thursday, but removed almost immediately.

During the brief time the opinion was online, Howard Bashman from How Appealing managed to save a copy that he has posted online.

After being asked to remove the original opinion Bashman updated his blog:

Catherine O'Hagan Wolfe, the Clerk of Court of the U.S. Court of Appeals for the Second Circuit, has telephoned to advise that the opinion was withdrawn out of a concern that it might disclose information contained in a portion of the appendix on appeal that was submitted under seal. The Second Circuit plans to reissue the decision, as revised to omit any disclosure of information filed under seal, tomorrow morning. The purpose of Ms. Wolfe's telephone call was to ask me to take down this blog's posting of the decision to the internet.

Bashman refused to take down the court's original decision stating, "No one from the Second Circuit has attempted to explain to me the so-called security concerns," and indeed when the opinion was republished the material omitted seems to have been removed simply because it makes the FBI look bad.

Steve Bergstein summarizes the case:

An Egpytian national, Abdallah Higazy, was staying in a hotel in New York City on September 11 and the hotel emptied out when the planes hit the towers. The hotel later found in the closet of his room a device that allows you to communicate with airline pilots. Investigators thought this guy had something to do with 9/11 so they questioned him. According to Higazi, the investigators coerced him into confessing to a role in 9/11. Higazi first adamantly denied any involvement with 9/11 and could not believe what was happening to him. Then, he says, the investigator said his family would go through hell in Egypt, where they torture people like Saddam Hussein. Higazy then realized he had a choice: he could continue denying the radio was his and his family suffers ungodly torture in Egypt or he confesses and his family is spared. Of course, by confessing, Higazy's life is worth garbage at that point, but ... well, that's why coerced confessions are outlawed in the United States.

So Higazy "confesses" and he's processed by the criminal justice system. His future is quite bleak. Meanwhile, an airline pilot later shows up at the hotel and asks for his radio back. This is like something out of the movies. The radio belonged to the pilot, not Higazy, and Higazy was free to go, the victim of horrible timing. Higazi was innocent! He next sued the hotel and the FBI agent for coercing his confession. The bottom line in the Court of Appeals: Higazy has a case and may recover damages for this injustice.

The courts opinion runs 44 pages, and what's been redacted follows:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, 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.

After reading the redacted material, it become clear that not only was Bashman's decision to leave the material online justified, but that the court's revised opinion serves only to prevent the public from learning that the confession was coerced by the FBI's threats to his family.

The fact that the court would attempt to cover this up is alarming. Higazy was a completely innocent man who was persecuted by the US government, and such tactics need to be brought to light so that the both the public and the media can weigh in on them. The government claims to not torture suspects but has stated that they use aggressive interrogation techniques. If such techniques are to include threats to innocent family members then the court has a legal duty to bring these matters to light and they have neglected their responsibilities by redacting this information.

33 States plus the District of Columbia have some form of shield law to protect the forced disclosure of information obtained by journalists, but there are no such protections when it comes to federal court. That may be change soon, but will the law be strong enough to actually protect journalists or will its broad exceptions do more to hurt press freedoms than help them?

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I've been tracking the progress of the Free Flow of Information Act of 2007 for months. Having spent time in a federal prison for protecting my source material, it's natural that I would be interested in a law that would prevent others from enduring this same fate.

The last time I wrote about the bill's status was in August, after it cleared the House Judiciary Committee. Last week, the Senate Judiciary Committee followed suit, and both houses of Congress are now ready to vote on the law.

While this is very exciting news for many journalists, I'm less than ecstatic, given that neither the version of the bill is ideal, and there is no telling how the two bills will be combined, should it pass both houses.

While the amended version of the House bill seeks to tie journalism to an economic exchange, the Senate's definition is broader in scope and would not only protect professionals but would likely apply to students and many bloggers as well. ... Read More

Asking if your hairdresser is a journalist may seem a bit absurd, but the reality is that for many people a trip to the salon is also an opportunity to pick up the latest dirt on who's dating who and other town gossip. We don't usually think of gossip as being journalistic; however, many newspapers have a reporter on staff whose primary duty is to share gossip. Most everyone would consider him or her to be a journalist so why is the idea of your stylist being a journalist considered such a radical idea?

With a Federal Shield law having recently made it out of committee in the House, a debate has flared over who should be protected under the law. A recent amendment to the Shield Law states that only those who benefit financially from their journalism are covered; those who provide the news as a labor of love are excluded. While many of the journalist organizations have applauded this compromise, I think it's important to look at who is excluded and how journalism is an activity that should be protected by a far larger contingent than those qualified under the proposed law.

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Yesterday the House Judiciary Committee approved an amended version of the Free Flow of Information Act. If passed, the act would shield reporters from having to testify about information they obtained through their journalistic activities. This significant step toward passing a shield law comes one year from the day I was escorted out of a Federal court room and held in civil contempt for asserting a journalist privilege.

As CNET reports,

In response to concerns raised by the Bush administration and other politicians, the revised bill attempts to exclude the "casual blogger" from reaping those benefits by stipulating the protections apply only to those who derive "financial gain or livelihood" from the journalistic activity, Boucher said Wednesday. That broad rule could, however, include part-time writers who receive even a trickle of revenue from Google Ads or Blogads.com.

While the revised form of the law is not perfect, it does appear to offer a level of protection against Justice Department inquiries that doesn't currently exist. Although 33 states have some form of shield law, these protections do not apply in a federal context and several U.S. journalists have found themselves imprisoned in recent years as a result.

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I headed to Washington DC last month to meet with members of Congress and their staff about the Free Flow of Information Act of 2007 which had just been introduced days before my visit. For those that don't know, the bill would extend the same protections journalists are afforded in most state courts to the Federal level. These laws are generally known as shield laws and offer legal protections against forcing journalists to testify about their work, and there is some level of shield afforded to journalists in almost every state.

So why are these shield laws important, and why should journalists be afforded this protection in the first place?

One of the basic defining principles of a democracy is a free press. If information is being stymied by the government, or the political conditions make it impossible for people to engage with the press then the public is robbed of all the facts they need to make an informed decision. Much of the work that journalists due relies on a trust relationship between their contacts, and the material uncovered through the investigative process is not dissimilar from that of detectives. Unless there are protections established than journalists can easily be subpoenaed and forced to do the work of law enforcement thus muddying their position as the Fourth Estate and the trust they have worked so hard to establish.

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