It is 1:00 and Volokh has still not posted on Higazy-Gate

But “Lady of Silences” has.  And since she is a former law clerk on a Federal Court of Appeals, she is deemed to be credible.  Very credible. 

She says thus:

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).

Our big post on Higazy-gate appears here.  My post about why Volokh elects to let one of the biggest First Amendment stories of the year go appears here.  Kerr, on the other hand, finds yet another angle on Waterboardinggate (i.e. that people were fired for offering opinions that the practice was illegal).

Comments

[Orin Kerr]

I've been following it, but I don't know what to make of it. Was this a case of a rogue officer who broke the rules, or was there more of this? If the former, it doesn't seem like a big story; if the latter, it does. I just don't know, based on the limited picture we can see.

[S. COTUS]

The biggest problem is that the 2d Circuit appears to have taken many (possibly illegal) shortcuts to cover up this material. This is a very grave First Amendment issue, and to most people it appears that the Second Circuit fell victim to an “Everything is different after 911” ruse. This is all the more strange, because the Second Circuit has a very robust jurisprudence on sealing or unsealing documents.

The next question is: WHY? They didn’t offer an answer. Nor does, it appears, the District Court.

Then we get to the question of whether this was a rogue officer. It probably was not. There is no indication that he was punished for his behavior.

[Mike]

I see that you've been removed from the VC's blog roll.