Appeals Court Shuffle Shields FBI Tactics Post 9/11

Kathy Gill

It sounded good: Egyptian student helps 9-11 hijackers with airplane radio. Too good, in fact, because Abdallah Higazy is suing an FBI agent because of a coerced a confession in the wake of the 9-11 attack. And the 2nd Circuit Court of Appeals has muddied things by withdrawing its original decision allowing Higazy’s suit to move forward. In the substitute opinion, it has redacted Higazy’s testimony about the forced confession.

Higazy, who had arrived in the States on 27 August 2001 to study computer science at Polytechnic University in Brooklyn, escaped from his room at the Millennium Hotel on 9-11-2001 with only his student ID and cash. He was arrested in December 2001 after an ex-cop-turned-security-guard (falsely) claimed to have found an aviation radio and Egyptian passport in Higazy’s hotel room.

The FBI believed the security guard, not Higazy, and put him in the same maximum security jail as Zacarias Moussaoui. In January 2002, the FBI charged Higazy with “making false statements” after his interrogation with Agent Templeton, even though he did not sign a confession; the court denied bail. Higazy was released two days after “a private pilot who was staying one floor below Higazy at the Millennium on Sept. 11, returned to the hotel looking for his aviation radio.”

But the story does not end here. The original Court decision provided online (pdf) included this language:

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t — yeah, probably about torture, sure.”

Higazy later said, “I knew that I couldn’t prove my innocence, and I knew that my family was in danger.” He explained that “[t]he only thing that went through my head was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

The District Court had dismissed Higazy’s claims because “Templeton’s conduct and threats as a matter of law cannot be classified as conscience-shocking or constitutionally oppressive.”

The second version of the decision redacted the section that obscures these claims about the FBI agent’s actions, because, the Court writes, “[f]or the purposes of the summary judgment motion, Templeton did not contest that Higazy’s statements were coerced.” However, the original decision acknowledges this, almost verbatim, on page 16.

Two bloggers broke the story about the Appeals Court Shuffle on the publicly-accessible decision. There has been little MSM coverage; apparently we have 9-11 burnout. Or torture burnout. Or something. The one exception is the WaPo:

The fresh details about his interrogation in December 2001 illustrate how an innocent man can be persuaded to confess to a crime that he did not commit, and the lengths to which the FBI was willing to go in its terrorism-related investigations after the Sept. 11 attacks.

Experts and officials have argued for the past six years about the limits of interrogation techniques and the reliability of what detainees say when they are questioned aggressively. To Higazy’s attorneys and other lawyers who work on terrorism-detainee matters, his experience provides some answers.

“What would it take for an entirely innocent person to confess to participation in one of the most egregious crimes in U.S. history?” asked lawyer Jonathan Abady. “People don’t do that voluntarily. . . . It’s clear that there was significant coercion brought to bear here.”

But what is amazing to me is this: MSNBC ran a story in September of this year which says much the same thing as the redacted opinion. “[Higazy] stuck to the truth, he said, until an FBI agent made veiled threats against his family in Egypt.”

So what is it, exactly, about the nature of the specific claims that is “under seal” (ie, “secret”)? Don’t know.

The Court says it was its decision and that the decision was not made at the behest of the Justice Department.

The Court made it clear that the FBI erred, procedurally: “On January 11, 2002, it was clearly established that the FBI could not coerce a confession and later use that confession in a criminal case, including in a proceeding before a judge after criminal charges had been filed, to impose the penalty of continued detention.” I’m not sure why this decision means Higazy can sue Agent Templeton; to me, it looks like he should be able to sue the FBI itself.

This appeals court decision reinstates Higazy’s case (a $20 million lawsuit filed about a year after the fiasco) against Agent Templeton. From The Jurist:

Higazy was arrested on the suspicion that he was staying in a hotel across from the World Trade Center on September 11 with a ground-to-air radio capable of guiding the planes into the towers. After five hours of post-polygraph questioning from Templeton, Higazy confessed to owning the radio. This admission — at the time tantamount to being a conspirator in the 9/11 attacks — was then used against Higazy at two subsequent bail hearings: the first to detain him as a material witness, and the second as part of the government’s criminal case against him for lying to federal investigators. After more than a month in solitary confinement fearing a trial on his role in the 9/11 attacks, all charges were dropped against Mr. Higazy when the owner of the radio, a pilot from Ohio, came forward and requested it back.

The Court wrote:

On January 11, 2002, it was clearly established that the FBI could not coerce a confession and later use that confession in a criminal case, including in a proceeding before a judge after criminal charges had been filed, to impose the penalty of continued detention. The government argues that there was conflicting Supreme Court law as to whether a Fifth Amendment right against self-incrimination was only a trial right, or extended more broadly. We disagree.

Oh. In case you, like me, are tuning into this story for the first time: the ex-cop-turned-security-guard was sentenced to six months of weekends in jail and three years probation.

Are news organizations really so jaded about how our government treats the accused as their response to this story attests?