The  hoopla surrounding the  Higazy v. Templeton decision at the Second Circuit and Willow Grove, PA, appellate lawyer Howard Bashman focused on whether Blawger Bashman was  really a journalist when he refused the circuit clerk’s, Catherine O’Hagan Wolfe, request to pull down the decision because it inadvertently revealed secret government information.

Well, while the old-school blawgosphere argues the merits of journalistic integrity, residents of the practical blawgosphere ask a different question.  What’s the big secret?

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.”

Aha.  According to the ABA Journal, this is the revelation.  So everyone who actually works in the trenches, raise your hand if you’ve ever had a client tell you that a cop or agent threatened dire consequences if they didn’t “cooperate”.  Oh my, every hand in the room is up.

Come on, Circuit.  This comes as a shock?  Sure, every agent on the stand testifies that they would never do such a thing,  It would be wrong.  It would be coercive.  It would be designed to undermine the free and voluntary will of a suspect to exercise his constitutional right to remain silent in the face of a bunch of guys with guns pointed at his head, not to mention the gun that just pistol whipped him across the left cheek because . . ., well, just because.

So Mr. Higazy was told that the agents would sic Egyptian security on his family.  Well, that’s a pretty potent threat.  Egyptian security can be remarkably unpleasant.  Just ask the Blind Sheik.  This is not the sort of threat one takes as a joke, particularly since Higazy was arrested within seconds of 9/11 when everyone was whipped into a frenzy.  Had he confessed to the Lindbergh baby kidnapping, who could blame him?

To the extent there’s any humor in this at all, it’s the naiveté that this happened for the very first time to Mr. Higazy.  Suddenly, the Circuit has discovered that bad things are done to suspects.  They are shocked. Shocked!  Welcome to our world. 

The only thing we could do to add to the naive humor would be to pretend that Higazy will change anything.  Somehow, the Circuit will mange to compartmentalize the Higazy threat and pretend that it was a one shot deal, never to be replayed with such mundane, garden-variety busts as fill the courtrooms at 500 Pearl Street every day. 

While the court’s acknowledgment that it happened this one time is better than nothing, how sad that it will devolve back into the legal fiction that the sanitized testimony of government agents in wood paneled courtrooms will conceal the fact that threats, abuse (both physical and psychological) and coercion are as alive today as when the rubber hose business was booming.  A little more sophisticated perhaps, but just as effective. 

Thankfully, Howard Bashman didn’t take down the decision.  Or admit to the Lindbergh baby kidnapping.