Gag Rule

GAG RULE….You may recall an incident a couple of weeks ago in which a circuit court opinion regarding an Egyptian national named Abdallah Higazy was partially sealed by the court. We know about this because the full opinion was accidentally posted on the web for a few hours before it was replaced with a redacted version, and the full version included passages in which Higazy described how he had been treated by the FBI. Marty Lederman comments:

The story about the publication, redaction, and attempted suppression, of the court opinion is, of course, very interesting and important in and of itself.

But let’s not lose sight of the more fundamental problem: What was the justification for the court “sealing” Higazy’s allegations in the first instance? I am aware of no doctrine in law, or other policy, that permits the FBI or any other law-enforcement or intelligence agency to prevent individuals from describing how they were treated by our government. The fact that the FBI’s conduct here was plainly unlawful if Higazy’s allegations are true only makes matters worse, since the government should not be able to classify its illegal conduct. But even if the threat had been a lawful interrogation technique, since when can the government insist that you must keep secret what they do to you?

A similar issue is now being litigated in the context of various recent laws that prohibit phone companies and other corporations from revealing that the government has served them with National Security letters requiring production of customer records. One district court recently declared such a gag order unconstitutional, in a case that bears watching.

This is, I think, an ominous development — the increasingly common notion that the government can insist that no one be permitted to publicly disclose what they know about how the government itself investigates crimes and terrorism, and how it treats those suspected of wrongdoing. Am I missing something? Is there some important historical precedent for this?

Actually, I can think of plenty of doctrines in law that permit this. Chinese law, Burmese law, and Zimbabwean law spring to mind. Nothing, until now, in American law, though.

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