Howard Bashman, the tireless proprietor of the How Appealing blog, has long been our favorite legal blogger. He has just gone up in our esteem to become one of our favorite journalists as well (which, more and more, is one and the same thing anyway.)
As reported on his blog (which, like Legal Times, is a member of the ALM family), Bashman (pictured) declined earlier this week when the clerk of the U.S.. Court of Appeals for the 2nd Circuit asked him to take down his posting of the court's decision in Higazy v. Templeton, a 9/11-related lawsuit filed by an Egyptian national against an FBI interrogator. Abdallah Higazy was in a hotel near the World Trade Center when it was attacked, and the FBI questioned him after linking him to a radio found in the hotel that could monitor aviation communications -- a radio which, it turned out, did not belong to him. The court itself had posted the decision for several hours earlier in the day, but then took it down after realizing that one part of the decision contained material that had been submitted under seal.
Bashman, whose day job entails operating an appellate boutique in Willow Grove, Pennsylvania, had been out of the office when the decision was posted and withdrawn. But he put out a call to readers asking if anyone had saved the decision before it was yanked. One sent it along and he posted it, prompting the clerk's unusual request -- and his refusal.
In a statement to the ABA Journal, another favorite site, Bashman reasoned that hundreds or thousands of people had already read the original opinion, so whatever damage the unredacted material might cause had already been done. And in words that stirred our heart, Bashman then took the classic stance of journalists in opposition to government secrecy: "In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the internet, referred to information contained in an appendix whose contents remained under seal."
Footnote: Based on a comparison of Bashman's original posting of the opinion and the redacted version that the 2nd Circuit posted today, the Court acted to keep from view details of the FBI interrogation, in which agents allegedly threatened to turn Higazy's family in Egypt over to Egypt's security service, which could use torture and "give his family hell."