Why not more about the Second Circuit’s censorship?

I am somewhat surprised to see that there has not been too much blogosopheric coverage of the Second Circuit’s failed attempt to redact details of Higazy v. Millenium Hotel and Resorts, in which the government conceded that an FBI agent coerced a false confession from the plaintiff.  At a minimum, the Second's Actions would seem to raise many First Amendment issues.  I can't seem to find anything on VC.

Truth be told, many Americans think that coerced confessions (true or false) are a good thing. They think that it is is “activist” to require the exclusion of such confessions from jury trials, thinking that a jury can determine for itself whether a confession is true or not. Some would even go so far as to hold that details of how a confession is extracted are inadmissible if the government says that it doesn’t want a jury to know them. Moreover, in a “national security” context, a false confession might serve a useful purpose. (Obviously the actual useful purpose of a false confession would be secret, but that isn’t the point.)

But why are not more First Amendment types angry about the Second Circuit’s redaction and subsequent fruitless phone call to Howard Bashman who has become a hero of the First Amendment by posting the full decision? Doesn’t the public have an interested in knowing the methods used to extract confessions (true or false) from individuals?  “Wait A Second” speculates the Second Circuit’s behavior is a "Everything is different after 9/11” approach. Under this approach Arabs that hate America have been deemed to modify our constitution via violent acts. Is this what happened?  It gets worse: the Second Circuit, itself has held that even in civil trials there is a First Amendment right to discovery materials that serve are necessary to the judicial process.  The Second uses the concept of a "judicial document" (which is different than a "judicial record") to describe documents that are subject to disclosure U.S. v. Amodeo, 44 F.3d 141 (2d Cir. 1995).  It wote:

While we think that it is proper for a district court, after weighing competing interests, to edit and redact a judicial document in order to allow access to appropriate portions of the document, we consider it improper for the district court to delegate its authority to do so. It is not apparent here whether the district court merely accepted the representations of the Court Officer with regard to the matters claimed to be inappropriate for release or made its own determination. What is clear is that the court released Exhibit A exactly as edited and redacted by the Court Officer and without making any written findings of its own.

It seems to us that the district court should make its own redactions, supported by specific findings, after a careful review of all claims for and against access. See In re New York Times Co. , 834 F.2d 1152, 1154 (2d Cir. 1987), cert . denied , 485 U.S. 977 (1988).  Such findings would provide us with a basis for effective review in the event of a future appeal.  See Press- Enterprise Co. v. Superior Court , 464 U.S. 501, 510 (1984).  The findings may be sealed to the extent that their articulation reveals information that should not be disclosed.  United States v. Haller , 837 F.2d 84, 88 (2d Cir. 1988).

So, there you have it.  Fact-finding is needed in the Second Circuit when the underlying document is at relevant to the judicial process.  Any assertion of a privilege by the government must be supported by facts and factual findings.  This didn't happen.  In fact, Mr. Bashman told ABA Journal that the Second offered no good reason for the redactions.  In fact, the statements were not even made by the government, but rather by the plaintiff.  Bashman wrote:

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.

Now, in notes attached to the redaction, the Second seems to say that the defendant (a government employee) coerced a confession.  Does that mean that it is no longer relevant to the judicial proceedings?  Doubtful.  Since this matter will be headed back to the District Court, the government’s concession on the confession will be relevant to, at the very least, determining damages.  Likewise, the Second Circuit, in determining that the government employee was not entitled to qualified immunity seems to have actually used the government employee’s behavior as a means to determine that he wasn’t entitled to qualified immunity. But, maybe I am wrong.  Maybe there is some justification for this.  The Second doesn’t give it.  The Second’s failed attempt at suppression of the facts seems to indicate that they think they must accept the government’s assertions about what is or is not a judicial document at face value.   [An alert reader has suggested that the government could be trying to argue not a “law enforcement privilege” but an “orderly conduct of foreign relations” privilege.  However, no such evidentiary privilege exists.]

But, maybe the constitution should be changed by the Americans that are empowered to amend to (as opposed to Arabs that violently killed people on 9/11).  Who knows?  Maybe the public will agree with the government: confessions extracted under coercion serve a useful purpose. Maybe the constitution will be amended to suit the government’s needs.  After all coerced confessions do the following: 1) instill respect for the law; 2) separate people of high moral character (that won’t confess under torture) from people of low moral character; 3) might result in information about other people; 4) provide a useful outlet for the frustration of people that would otherwise be bullies that now work for “law enforcement”; 5) allow the listener to create reality, as they are no more “true or false” than the observer is willing to believe in the first place (I don’t know why so-called conservatives don’t take up the banner of post-modernism); and 6) such confessions do not result in any real harm to the republic if a non-American is abused.

For a related story, see our coverage of the DOJ's rationale for not taping confessions, which is, essentially that juries might not like the methods we use to extract them.  Or, in their words, juries should not see or hear the confessions (or judge their propriety) because, in the DOJ's words, “Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants."

Okay, here is the Blog Coverage:

• Patterico's Pontifications ("Was a Passage Omitted from a Recent Second Circuit Opinion for “Security” Reasons — Or to Cover Up Material Embarrassing to the FBI?")
• Psychsound ("A tale of two decisions (or, how the FBI gets you to confess")
• ABA Journal
• Legal Blog Watch
• Public Eye
• Kevin Drum
• Tony Mauro
• Unqualified Offerings
• Free Constitution
• Another Panacea
• Second Hand Conjecture (who argues that because this is at summary judgment, we should not view this as a cover-up).

Comments

[Mike]

Good for Bashman for keeping the opinion up.

[S. COTUS]

I agree. God bless him!

For all the snark about Bashman, he held true to his principles and what should be the principles of every American. He should be commended for his commitment to American values and freedom.

[Mike]

Even Patterico was incensed. When Patterico thinks the government misbehaved, well, that's beyond-a-reasonable-doubt evidence that something very wrong went down.

Eugene Volokh won't blog this case, since he wants to be a federal judge. Of course, by not publicizing this case, he is doing the public a disservice to further his own interest. If he is ever nominated, he will tell everyone what an honor it will be to be a "public servant."

The guy is a genius. But I've never respected him as a person. He's a party hack.

Incidentally, I e-mailed Volokh a while back with this story:
http://federalism.typepad.com/crime_federalism/2004/10/the_price_of_di.html

Summary: A bunch of powerful Republicans tried getting some Southern California radio hosts indicted for the crime of.... talking to an opponent of a Republican congressperson on the radio. I am not joking.

Now, everyone has the right to blog - or not - any topic they want. But that story seems awfully topical, no?

Was speech involved? Check. Were very powerful people threatening criminal punishment for speech? Check. Was it located in Eugene Volokh's backyard? Check.

Yet Volokh didn't seem to think the issue was worth discussing? Gee, I wonder why that might be?

[S. COTUS]

Hmmm.. maybe I will do a post about this tomorrow. I am disappointed that al l I see in VC now is cutesy posts. I don't really know much about Patterico.