New York Times correspondent Benjamin Weiser reports. Excerpt:
A federal judge in Manhattan took the unusual step yesterday of ordering federal prosecutors to investigate how the F.B.I. had obtained a confession from an innocent Egyptian student who was detained in connection with the attack on the World Trade Center.
The judge, Jed S. Rakoff of Federal District Court, also agreed to unseal virtually all documents that have been kept secret in the case of the student, Abdallah Higazy. He was initially held as a material witness in the Sept. 11 investigation after a security guard said he had found an aviation radio in the safe in Mr. Higazy’s hotel room, which overlooked the trade center site.
Mr. Higazy was later charged with perjury when he denied owning the radio, and spent about a month in jail. He was released after the guard admitted making up the story about the radio.
But while Mr. Higazy was in jail, prosecutors told Judge Rakoff that the student had confessed to an F.B.I. agent that he owned the radio, an admission now known to be untrue.
Mr. Higazy asked for a polygraph exam to prove his innocence, the judge said, and an F.B.I. agent administered it without his lawyer present. But at some point, the F.B.I. agent, who has not been identified, stopped, and reportedly began to question Mr. Higazy, who then confessed, the judge noted. The confession fueled suspicions he might be tied to the hijackers.
“The alleged misbehavior here,” Judge Rakoff said, “consists, worst case, of an F.B.I. agent’s taking unfair advantage of a situation created during a polygraph testing expressly requested by the witness to obtain from the witness a coerced or uncounseled confession that could be used to bring criminal charges against the witness.”
Although Mr. Higazy made no claims of physical abuse, he said recently that after he was left alone for several hours with the agent, he started hyperventilating and was ready to say anything. Mr. Higazy also said the agent had threatened his family’s safety if he did not confess, the judge noted, adding that the government denied that allegation.
Review of a video or audio tape recording of Mr. Higazy’s polygraph interrogation would remove any doubt as to whether his FBI polygrapher threatened his family’s safety if he did not confess. But the FBI’s standard operating procedure of not recording polygraph interrogations gives unscrupulous polygraphers the power to lie with impunity about what transpired during any polygraph interrogation.