Appeals Court Shuffle Shields FBI Tactics Post 9-11
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?
More from cNet, PsychSound (tip), Wait A Second!, How Appealing.
The case: Higazy v. Millenium Hotel and Resorts.
Comments
One need only to look at this left wing blog to confirm your own claims regarding the jaded media. People like you have infiltrated almost every corner of journalism and made a mockery of the profession.
BTW-What does this string have to do with Washington politics?
c
Hi, Chuck - long time no see!
Coerced confessions from the FBI (ie part of the executive branch of government) are political. It’s not how our government is supposed to do things. The questionable use of that forced confession was also, IMO, political.
I find the Court’s justification for redacting the testimony … intriguing, since (as I pointed out).
The story should have legs — and people who are concerned about what their government is doing in their name (politics) should know about this.
Hi Kathy,
It happens that my (now deceased) grand-father worked for many years for the French Intelligence. Nothing as glamorous as a James Bond, obviously, as he was very officially employed as such. He was posted in Indochina during the first Vietnam War and later to Morocco during the independence. French forces at that time were widely known to use torture in extreme cases, which created much commotion at home and in the media (and please don’t forget that this was before May 68 and media were far less free than nowadays). So his children asked him of course about torture and his position about it. He answered them only that he was totally against, not so much from an ethical point of view (he had been through the Syrian War, World War II and the Vietnam War…) but from a purely efficiency point of view. According to him, torture gave extremely poor results, and as an intelligence officer he recommended to concentrate rather on getting good intelligence. Basically, when facing torture (physical or moral one), people tended to say exactly what the interrogator wanted to hear instead of the truth.
To summarize, if you coerce people into confessing, the information you get are more or less exactly what the torturer believes, not what his victim knows.
Almost every police/security agency has had it’s share of corruption and this is no exception. Since this took place so close to the site of the crime and the date of the crime it’s not a stretch that indiscretions like this took place. It’s back page 2nd section material. And it’s not political just because you say it is. You’re just trying to exploit it to make the administration look bad so the only politics is from far left liberal “journalists” like you.
And Alphast, to correct your assertion, information you get from what you libs deem torture “may” be what the torturer believes but “may” also be valuable information that saves U.S. lives.
C
Chuck, You seems to be so lost in partisonship that you know longer know the difference between right and wrong.
You say that because every police/security agency is corrupt that that makes it ok? If it had not been so close to 9-11 then the “indescretion” as you put it, would then not be ok?
You said: “You’re just trying to exploit it to make the administration look bad so the only politics is from far left liberal “journalists” like you.”
Since when did the FBI become the administration?
Instead of looking at everyone as libs or conservitives and basing your reality on that, maybe you could actually learn the issues and come to your own conclusions rather than a party ideology.
Grow up Chuck
Thanks very much, Alphast, for the personal anecdote. It certainly matches the research.
Hi, Chuck — it’s news when a government agency (and the FBI is a federal agency under the direction of the White House via the Department of Justice) mistreats someone. It’s news that smacks of politics in this case, after the agency’s measures were exposed to the light of day.
The “war on terror” is politics — and this example suggests the sort of hardball our government was playing post 9-11. Read the transcript; the FBI’s actions in this case were not pretty.
Hi, Chase — the FBI is under the direction of the Justice Dept, an agency under the direction of the White House. Thus, it is part of the Administration.
Please refrain from personal attacks in this forum.
Chase,
You obviously suffer from a reading comprehension disability? Where did I say that “that makes it was OK”? Sounds like your partisanship is shining through?
“Since when did the FBI become the administration?”
Exactly! Tell that to Ms Gill now.
I asure you Chase, I’ve come to the party with my own conclusions. And the comment about growing up is just another silly remark you lefties make when you have no intellectual rebuttal.
My point all along is that this story and this thread has no place on this board. Ms. Gill’s agenda to make it political is the question here. I guess that item simply went right over your head since it sounds like you both share the same mindset. But that’s no surprise.
C
7. Kathy,
It’s news but it’s not political. You want it to be but it’s not. Your agenda is shining through as usual.
“war on terror” is political??? Thanks for making my point! That’s one of the most absurd statements you’ve ever made. I guess all is well and no one wants to kill us or our allies? Does the name Neville Chamberlain ring any bells?
C
Hello, Chuck — I’ve warned you before about ad hominems, and I shall not warn you again.
The next time you attack a poster, like you just did Chase, I will delete the comment.
Dear Chuck,
I would only like to answer the last paragraph of your own answer to my post. You say ‘it “may” be what the torturer believes but “may” also be valuable information that saves U.S. lives’. Well, that’s exactly the problem. If it only may be, there is no way to know for sure. So, as my good opa was pointing it, torture is mostly irrelevant. As for myself, I also know it is unethical, as we all should know that the goal does not justify the means (this is one of the basic axioma of ethics, and if you do not agree, please re-read Karl Popper and Levinas). Good intelligence includes understanding the culture and the language, the mentality and the communication means of a population, as well as what motivates and drives them. All things that were royally ignored in 2003 and later by US forces and/or agnecies involved in Iraq. It also means having serious contacts with loyal locals and many other human apsects… Torturing people doesn’t help to do this either, obviously.
And Chuck,
By the way, please stop calling me a liberal. I do understand what this means in American English (it is what we call in Europe a socialist). I am a center right type of guy, which has no real equivalent in the US system, because it is not a multiparty system. So I find it mildly insulting to be called a liberal, if not wholly laughable. It is a bit as if would call you a communist… not very believable.
Hi, Alphast - thanks for outing your political preference.
Most liberals in the US wouldn’t consider themselves “socialist” — at least in the US meaning. That may be why there is a sub-group calling itself “progressive” (which is, linguistically, more oppositional to “conservative”).
I think our “greens” would be more like your “socialists” but I’m not sure.
Ms Gill,
What are you talking about? I see no attack? Just the facts. I guess those aren’t allowed on your blog eh?
Chuck: these are your opinions which are “attacks” on the character of Chuck:
“You obviously suffer from a reading comprehension disability? ”
“another silly remark you lefties make when you have no intellectual rebuttal.”
Generally speaking, based on my experience, if the sentence contains “you” … then it’s probably an attack.
So please confine your comments to IDEAS not individuals. As I said before, any future comments that attack individuals will be deleted. No warning.