Below are pages 2-11 of the report on the investigation conducted by the U.S. Department of Justice's Office of the Inspector General (OIG) prepared by Deputy U.S. Attorney David N. Kelley in behalf of U.S. Attorney James B. Comey, Southern District of New York, on how an FBI polygrapher came to extract a false confession from Abdallah Higazy. The first page of the report was not available.
Mr. Higazy, an Egyptian graduate student who had recently received a scholarship to study in the United States, became a suspect in the 9/11 terror investigation when an employee of the Millennium Hilton Hotel in lower Manhattan, in which Higazy was staying at the time of the World Trade Center attack, claimed to have found an aviation radio inside Higazy's room safe. Higazy denied any knowledge of the radio. But following an FBI polygraph interrogation, he confessed to owning it. Charged with lying to the FBI, Higazy spent a month in prison (much of it in solitary confinement) before the radio's owner, an American pilot, came forward to claim it. Having been completely exonerated, Higazy was released from custody and all charges against him were dropped. The hotel employee who claimed to have found the radio in Higazy's room admitted to having fabricated the story. Higazy explained that he had falsely confessed because the polygrapher had threatened his family. Federal Judge Jed S. Rakoff ordered the U.S. Attorney's Office to investigate how the FBI came to extract a false confession from Mr. Higazy.
The OIG report's main conclusion, that "there is insufficient evidence to corroborate Higazy's allegations that the polygrapher threatened him" was foreordained by the FBI's deliberate policy of not audio- or video-recording polygraph examinations, a policy that ensures there will be no record of any such misconduct by a polygrapher.
Higazy's lawyer, Robert S. Dunn, has characterized the OIG report as a whitewash. This view is supported by the fact that the OIG failed to even review Higazy's polygraph charts before filing its report. That the OIG was biased against Higazy and in favor of the polygrapher is evidenced by the fact that in reporting on its interview of Higazy, almost everything Higazy said is caveated with prefatory words such as "Higazy stated," "Higazy said," "According to Higazy," and "According to Higazy's account," whereas in reporting on the polygrapher's interview, such prefatory remarks appear relatively infrequently, and much of the polygrapher's account is presented as if it were undisputed fact.
Although the names of the FBI personnel involved have been omitted from the report, their identities are publicly known. Agents [#1] and [#2] referred to in the report are FBI Special Agents Vincent Sullivan and Christopher Bruno. (It is not certain which is #1 and which is #2). The polygrapher who extracted the false confession from Abdallah Higazy is FBI Special Agent Michael Templeton.
For discussion of the Higazy case, see the AntiPolygraph.org message board thread, Polygraph helps coerce false confession.
The Honorable Jed S. Rakoff
October 31, 2002
Page 2
was appropriate since the OIG now has statutory authority to
investigate allegations of misconduct by Department of Justice
employees, including FBI agents, and since the investigation
raised the possibility that current or former members of this
Office might have to be interviewed as witnesses.
The OIG has conducted a thorough investigation of the
circumstances surrounding the administration of the polygraph
examination and Higazy's resulting confession, in which he stated
that he was the owner of an aviation radio that was found in his
room at the Millenium [sic] Hilton Hotel. This investigation included
a review of the FBI files related to Higazy's case; an
examination of the various forms that Higazy reviewed and signed
prior to submitting to the polygraph examination, including an
advice or rights form, a waiver of rights form, and a "consent to
interview with polygraph" form; an examination of the polygraph
examination worksheet that was used during the examination, and
the polygraph report (which included that in the opinion of the
examiner, Higazy's responses to two relevant questions were
indicative of deception); and an examination of an FBI 302 report
that memorialized statements that Higazy had made during the
course of the polygraph examination. The OIG also conducted
extensive interviews with, and received sworn written affidavits
from, the following individuals: Abdallah Higazy, FBI Special
Agent [#1], FBI Special Agent [#2], and the polygrapher. The OIG
also attempted to interview Robert S. Dunn, Esq., counsel for
Higazy, as the OIG viewed him as a witness in this investigation;
however, Mr. Dunn refused to be interviewed by the OIG, stating
that "he had nothing to bring to the table." Mr. Dunn also
refused to allow Higazy to be interviewed without Mr. Dunn being
present, and rejected the offer to provide Higazy with another
attorney who could serve to protect Higazy's interests, but who
was not seen by the OIG as a potential witness to the
investigation. Nonetheless, although he refused to be formally
interviewed by the OIG, during the course of Higazy's interview,
Mr. Dunn made some relevant comments that will be reported below.
Significantly, the OIG is still in the process of
obtaining from FBI headquarters the original polygraph charts
from Higazy's polygraph examination. Those charts will be
reviewed by the OIG polygraph section for quality control
____________________
jurisdictional issue over who would conduct any such
investigation.
The Honorable Jed S. Rakoff
October 31, 2002
Page 3
purposes and the results of that review will be reported in the
near future. Since that piece of the investigation is not yet
complete, this Office is not in a position to conclude its
investigation. However, based on this Office's review of the
results of the OIG investigation to date, it appears that there
is insufficient evidence to corroborate Higazy's allegations that
the polygrapher threatened him; as a result, no further action
against the polygrapher appears to be warranted at this time.
OIG Interview of Higazy
Higazy was interviewed by the OIG in the presence of
Mr. Dunn on September 23, 2002, and provided a sworn written
statement that day. In that statement, Higazy claimed, in
substance, that during the course of the polygraph examination,
the polygrapher threatened that if Higazy did not cooperate, his
family in Egypt and his brother in upstate New York would come
under scrutiny and that their lives would be made into a "living
hell." Higazy stated that the polygrapher repeatedly raised his
voice and pounded on the table in the conference room in which
the examination was administered. Higazy stated that he was so
upset and overwhelmed by the whole situation that he completely
forgot that he could stop the examination at any time to consult
with his attorney, who was located immediately outside the
conference room during the course of the polygraph examination.
Higazy stated that in order to save his family from the alleged
threats, he decided to confess falsely to owning the radio, and
proceeded to provide the polygrapher with three different
versions of how he obtained the radio. The last of the
explanations was that Higazy had stolen the radio from the
Egyptian Air Force, of which he was a former member, and brought
it with him to New York. Higazy stated that when the polygrapher
asked him to sign a written statement based on this third story,
he remembered that he had an attorney outside and asked to be
allowed to have the attorney review the statement before he
signed it. At that point, the polygrapher summoned Mr. Dunn, who
came into the room with Higazy and advised him not to sign the
statement.
Higazy stated that he did not tell his attorney, the
Government or the Court of the alleged threats that day or the
next day at a court hearing because he was afraid. Higazy said
that it was not until several days later, at a meeting with his
attorney at the MCC, that he first informed Mr. Dunn of the
alleged threats made to him by the polygrapher. According to
The Honorable Jed S. Rakoff
October 31, 2002
Page 4
Higazy, it was not until approximately ten days after the first
polygraph examination, when he was produced again for a second
such examination, and in the presence of his lawyer, that he
confronted the polygrapher with his allegation that the
polygrapher threatened his family in order to get him to
confess.2
During the OIG's interview of Higazy, Mr. Dunn
acknowledged that it was explained to him beforehand that he
would not be allowed in the conference room during the
examination. However, it was his understanding that Higazy could
stop the examination at any time to consult with him. Mr. Dunn
told the OIG that he had heard some loud noises and pounding on
the table during the course of the polygraph examination "but
believed that it did not warrant any investigation on his part."
As indicated above, Mr. Dunn has refused to be interviewed by the
OIG, despite the fact that the OIG believed him to be a relevant
witness to their investigation.
OIG Interviews of Special Agents [#1] and [#2]
Special Agents [#1] and [#2] of the FBI were separately
interviewed by the OIG on September 30, 2002. Agents [#2] and
[#1] were the case agents assigned to the investigation of
Higazy, and were present outside of the conference room when
Higazy was polygraphed. Agents [#1] and [#2] confirmed that Mr.
Dunn and Higazy were specifically informed on December 27, 2001,
prior to the commencement of the polygraph, that while Mr. Dunn
would not be allowed in the conference room with Higazy, Mr. Dunn
would be outside the room and that Higazy could request to stop
the exam or speak to his attorney at any time. Agents [#1] and
[#2] remained outside of the room during the course of the
polygraph examination, along with Mr. Dunn. Agents [#1] and [#2]
both said that they did not hear any loud noises coming from the
room during the examination. Agent [#1] said that during the
course of the exam, the polygrapher came out of the conference
room and asked to see Agent [#2], who had left the area
momentarily. While the polygrapher was outside the conference
room, the door to the conference room remained open, and Mr. Dunn
____________________
2 According to Higazy's account, Higazy had told Mr. Dunn of
the alleged threat at their meeting in the MCC. Nonetheless, Mr.
Dunn and Higazy both agreed to meet again with the Government
with the intention of taking a second polygraph examination.
The Honorable Jed S. Rakoff
October 31, 2002
Page 5
was present. The polygrapher then re-entered the conference
room. Agent [#1] stated that some time later, the polygrapher
exited the conference room and stated that Higazy was prepared to
sign a written statement, but that he wanted his attorney to see
it first. Agent [#1] recalled that Mr. Dunn proceeded into the
conference room where he remained for approximately one hour.
According to Agent [#1], when Mr. Dunn emerged from the
conference room, he stated, in substance "[b]etween us Americans,
what he [Higazy] is about to sign is not the story he is telling
me." Agent [#1] then went into the conference room with Higazy
while Agent [#2], the polygrapher, the AUSA assigned to the case,
and Mr. Dunn talked outside of the conference room. Agent [#1]
told the OIG that neither Higazy nor Mr. Dunn had told him about
Higazy's allegations that he had been threatened by the
polygrapher on December 27, 2001.
Agent [#2] stated that during the polygraph
examination, he momentarily left the area and was paged by Agent
[#1]. Agent [#2] said that he later learned that the polygrapher
wanted him to be present because the polygrapher believed that
Agent [#2] was an emergency medical technician ("EMT") and
because Higazy looked pale and was not feeling well. By the time
Agent [#2] returned to the area outside the conference room,
the polygrapher had re-entered the room. Agent [#2] stated that
some time later, the polygrapher emerged from the conference room
and stated that Higazy had admitted that the radio was his and
had given three explanations for how he had obtained it. Mr.
Dunn heard this briefing from the polygrapher and then went into
the conference room with Higazy. Agent [#2] said that after Mr.
Dunn went into the conference room, the polygrapher explained how
reluctant Higazy had been to admit that the radio was his, and
that the polygrapher had told Higazy that they had to resolve the
radio issue to minimize the embarrassment to Higazy's family, who
had probably already heard reports regarding the matter.
According to Agent [#2], when Mr. Dunn exited the conference
room, he stated that "between us Americans," Higazy had informed
Mr. Dunn of a fourth version of how he came into possession of the
radio, which Mr. Dunn did not recount to the agents that were
present. Agent [#2] said that he did not hear any yelling,
raised voices, or banging during the time that he was outside the
conference room.
The Honorable Jed S. Rakoff
October 31, 2002
Page 6
OIG Interview of the Polygrapher
The OIG interviewed the polygrapher on October 25,
2002. By way of background, this polygrapher began his career
with the FBI as a clerk in 1976, and became a Special Agent in
1985. He was selected for polygrapher training in 1995, and
attended an intensive 14-week training program at the Department
of Defense Polygraph Institute in Alabama. The polygrapher has
also completed three advanced courses specializing in Foreign
Counter-Intelligence at the Polygraph Institute. He is a member
of the American Polygraph Institute and reviews their polygraph
training materials. The polygrapher stated that he has never
been disciplined by the FBI, nor have any of his polygraph
examinations come under scrutiny.
a. Pre-test procedures
The polygrapher stated that prior to administering the
polygraph to Higazy on December 27, 2001, he saw Mr. Dunn outside
the room in which he was going to administer the examination and
that he told Mr. Dunn that the test questions related to Higazy's
ownership of the radio and his participation in the 9/11 attacks.
When the polygrapher entered the room, he explained the entire
polygraph process to Higazy. The polygrapher reviewed with
Higazy, and then obtained Higazy's signature on the advice of
rights form and the "consent to interview with polygraph" form.
The polygrapher then conducted a pre-test interview of Higazy
during which he obtained some background information from Higazy.
The polygrapher also reviewed with Higazy the polygraph
examination worksheet and reviewed the questions he was going to
ask Higazy. According to the polygrapher, all of these steps are
routine protocol for an FBI polygraph. The polygrapher also
stated that Higazy was encouraged to ask any questions that he
may have and was informed that he could stop the examination at
any time to consult with his attorney, who was immediately
outside the conference room. Higazy informed the polygrapher that
he was in good health and taking no medications.
The polygrapher then asked Higazy if he had any
concerns about what he had been through, and specifically asked
Higazy about his previous request to Agent [#2] that Agent [#2]
not contact the Egyptian Consulate concerning his detention as a
material witness. Higazy told the polygrapher that he did not
want the Egyptian Security Services to get involved because "they
did not handle things the way American law enforcement agencies
The Honorable Jed S. Rakoff
October 31, 2002
Page 7
do." The polygrapher told Higazy that the Egyptian Security
Services had not yet been notified, but that they probably would
be some time in the future. Higazy also told the polygrapher
that he was concerned about losing his scholarship, and that he
was concerned that his being detained would have an affect on his
family and may bring scrutiny upon his brother, who was a student
in upstate New York. The polygrapher stated that he asked Higazy
about the Egyptian Security Services in order to alleviate any
concerns that might be a barrier to Higazy's successful
completion of the examination. The polygrapher stated that this
was the only time during the examination that the Egyptian
Security Services was mentioned.
b. The polygraph examination.
The polygrapher stated that during the administration
of the polygraph exam, Higazy began to audibly grunt; however,
the polygrapher did not observe any change in Higazy's
physiology. Nonetheless, the polygrapher interrupted the
examination and asked Higazy how he felt. When Higazy responded
that he felt dizzy, the polygrapher stopped the examination,
removed the polygraph device, and instructed Higazy to put his
head between his legs. The polygrapher then briefly opened the
door to the room in an effort to locate Agent [#2], whom the
polygrapher believed to be an EMT. When the polygrapher learned
that Agent [#2] had momentarily left the area, the polygrapher
returned to the room and terminated the examination. The
polygrapher determined that based on the two charts that he was
able to complete on Higazy, Higazy's physiological responses to
the relevant questions were indicative of deception. Those
relevant questions and answers were: 1) Did you take part in
those attacks? Reply: No; 2) Were you involved in those attacks?
Reply: No. Higazy asked the polygrapher if anyone had ever become
ill during the course of a polygraph examination, and the
polygrapher responded that it had not happened to anyone who was
telling the truth.
c. Post-test interview
The polygrapher informed Higazy that he had failed the
polygraph examination, and Higazy again denied any involvement in
the 9/11 attacks. The polygrapher then conducted a post-test
interview, in accordance with the FBI's accepted methodology in
conducting polygraphs. The polygrapher stated that Higazy
expressed concern that if he admitted that the radio was his,
The Honorable Jed S. Rakoff
October 31, 2002
Page 8
then he would lose his scholarship. The polygrapher told Higazy
that "if it was your radio and it wasn't used to bring those
towers down, nobody cares, I'll give you another test and you can
go back to school." The polygrapher stated that after some time,
Higazy stated that he had found the radio in the subway in New
York. Higazy then retracted this statement and told the
polygrapher that he found the radio at the base of the Brooklyn
bridge. Higazy then retracted this second version and said that
he had stolen the radio from the Egyptian Air Force and that he
had not told the FBI about stealing the radio because he feared
that he would end up in an Egyptian prison. When Higazy offered
this version of why he had the radio, he began calling it a
"JHP," referring to the correct model name of the radio that was
actually found, and stated that he had taken it from the Egyptian
Air Force because it was "so cool." Higazy also said that he
used the radio to intercept phone calls.
Based on Higazy's acknowledgment that the radio was
his, the polygrapher informed Higazy that he could administer
another test to gauge Higazy's truthfulness about his involvement
in the 9/11 attacks. Higazy agreed to the additional exam. The
polygrapher then prepared a written statement for Higazy to sign
relating to the ownership of the radio. Higazy read the
statement and told the polygrapher that everything in it was
true, but that he wanted to review it with his attorney before he
signed it. The polygrapher then exited the room and gave the
written statement to Mr. Dunn who entered the room and remained
inside the room with Higazy for approximately one hour. When Mr.
Dunn emerged from the room, he told Agents [#2] and [#1], as well
as the polygrapher, that Higazy was now telling him a different
story and that Higazy would not sign the statement. Mr. Dunn said
that Higazy was not denying ownership of the radio, but that he
was telling a different story. Mr. Dunn then stated that he
believed that Higazy could be a cooperating witness, and stated
in substance, "he may be my client, but I'm an American too.
That guy, with that radio, in that room, on that day, needs to be
looked at." Mr. Dunn agreed to make Higazy available for another
polygraph. According to the polygrapher, the only complaint that
Mr. Dunn had on the night of December 27, 2001 was that someone
had told Higazy that he possibly could keep his scholarship,
which conflicted with Mr. Dunn's advice to Higazy that he could
"kiss that scholarship goodbye."
The Honorable Jed S. Rakoff
October 31, 2002
Page 9
The Meeting Regarding the Second Polygraph
The next polygraph examination was scheduled to take
place on January 8, 2002. However, on that date, after arriving
at the location where the test was to be given, Mr. Dunn informed
the AUSA and the polygrapher that Higazy would not take the exam
unless Mr. Dunn was allowed to stay in the room during the course
of the exam. Mr. Dunn told the polygrapher that Higazy had
accused the polygrapher of threatening him during the first test,
and that Higazy was denying ownership of the radio. Mr. Dunn
asked the polygrapher to enter the room with Higazy, and
according to the polygrapher, Higazy immediately stated that the
polygrapher had threatened during the first test that he would
ensure that the Egyptian Security Service would make Higazy's
family's lives "a living hell." The polygrapher denied this
accusation, and stated that he told Higazy during the course of
the first examination that Higazy could consult with his attorney
at any time during the examination. When Mr. Dunn asked Higazy if
the polygrapher had indeed told Higazy that he could consult
with Mr. Dunn during the first exam, Higazy responded, "I can't
remember, I'm not a human tape recorder." Mr. Dunn refused to
allow the second examination to proceed unless he was able to
somehow observe the examination. As a result, the second
examination did not take place.3
The polygrapher had no further contact with Higazy or
Mr. Dunn, although he has read in newspaper accounts of Higazy's
and Mr. Dunn's allegations that he threatened Higazy during the
first exam. The polygrapher further stated that he conferred
with a supervisor at FBI headquarters before administering the
first polygraph to Higazy and that after the polygraph
examination, the charts were subjected to a quality control
review by the FBI, resulting in no negative comments as far as he
was aware.
____________________
3 It is the Government's understanding that, according to FBI
protocol, no one other than the polygrapher and the examinee are
allowed in the polygraph room during the administration of the
exam because the presence of other parties may influence the
results and render the exam not objective.
The Honorable Jed S. Rakoff
October 31, 2002
Page 10
Conclusion
Higazy's allegations that he was threatened or coerced
by the polygrapher during the course of the polygraph examination
remain uncorroborated. Of particular importance is the fact that
Higazy did not raise the allegations of coercion until at least
eleven days after the alleged threatening activity took place.
His assertions that the polygrapher was yelling and banging on
the table during the course of the polygraph examination are
belied by: 1) the fact that Higazy knew that his attorney was
right outside the interview room and that he was instructed that
he could stop the examination at any time to consult with his
attorney; 2) the fact that Mr. Dunn was outside the room during
the course of the examination and did not perceive anything that
warranted investigation on his part; and 3) the fact that neither
Agent [#1] nor Agent [#2] heard any banging or yelling during the
administration of the polygraph. Moreover, although he was told
that he could stop the examination at any time to consult with
his attorney, Higazy did not do so. Indeed, even when the
polygrapher stopped the examination and left the conference room,
leaving the door open, to speak with Agent [#2], Higazy made no
attempt to speak with his lawyer, who was just outside the room.
Mr. Dunn apparently did not perceive any reason to intercede with
the examination at the point the door was opened. Therefore, it
is the opinion of this Office that no further action concerning
this matter is warranted at this time. As stated above, this
preliminary conclusion is subject to the results of the ongoing
review of the original polygraph charts by the OIG polygraph
section. If that review raises additional questions, this Office
will pursue any additional areas of investigation it deems
appropriate.
Since this Office does not believe that there is any
need at this time to pursue any additional action against the
polygrapher, the Government respectfully submits that this
letter, which contains detailed descriptions of confidential
The Honorable Jed S. Rakoff
October 31, 2002
Page 11
interviews, remain sealed.
Respectfully submitted,
JAMES B. COMEY
United States Attorney
By: __________________________
DAVID N. KELLEY
Deputy United States Attorney
Telephone: (212) 637-1025