“Held Without Charge: Material Witness Law Puts Detainees in Legal Limbo”

Newsday staff writer John Riley reports on post 9/11 civil rights abuses stemming from the material witness law in this well-researched investigative article, which is the fourth in a series. Among other things, he documents the case of Abdallah Higazy, from whom an FBI polygrapher extracted a false confession. Excerpt:

Higazy, an Egyptian diplomat’s child who had spent long stretches of his youth in the United States, came to New York in late summer last year to attend engineering school with the aid of a scholarship from the Institute of International Education, a U.S.-government-affiliated foundation.

The institute reserved a room for him at the Millenium while he was looking for a place to stay in Brooklyn. After evacuating on Sept. 11 and settling into his studies, he apparently came into the scope of federal investigators when Millenium security guard Ronald Ferry claimed to have discovered a ground-to-air radio in a safe in Higazy’s room, along with his passport, on top of a copy of the Quran.

Ferry said he found the items while taking inventory of guests’ property in the closed hotel in October and reported it to the FBI. But Higazy, who had been in touch with the hotel about retrieving his abandoned property, heard nothing until he came to the hotel on Dec. 17 to get his possessions.

After informing management the radio listed under his name on an inventory list was an error, he was ushered into a room by three FBI agents. In addition to the radio, he says, they questioned him about his political views, his friends, his background in Egypt and why he was in the United States

Then, as Higazy stuck to his insistence that he had never seen the radio and didn’t even know what it was, they arrested him as a material witness. He remembered the title of an Egyptian play: “A Witness Who Witnessed Nothing.”

Without the material witness law, the government would have been in a difficult position. They couldn’t tie the radio itself to any criminal conduct – there has never been any evidence, at least publicly, that the Sept. 11 hijackers received transmissions from the ground. And even if the radio had been Higazy’s, it’s not a crime to have a radio in your hotel room.

But the material witness law provided an alternative – and, in the end, a case study in how the ability to arrest without charges can spawn charges without a crime.

Investigators justified holding Higazy based on a web of circumstances: He denied owning the radio. He was a recent arrival, staying next to the World Trade Center. He was from Egypt, and so were some hijackers. He had maps of New York and Washington airports in his room. He wasn’t forthcoming because he first denied knowing anything about the radio, but later volunteered that he knew about such devices from his service in the Egyptian army.

Prosecutors acknowledged, in a hearing before U.S. District Judge Jed Rakoff, that despite arresting Higazy, they still hadn’t contacted the Institute of International Education, which had placed him at the Millenium, to check out his explanation of why he was there. Dunn, Higazy’s attorney, told the judge that the airport maps had been provided to all incoming students and said that agents were taking an unduly jaundiced view of his attempts to deny knowledge of the particular radio while admitting that he knew about radios generally.

Rakoff, according to transcripts that were later unsealed, said that it was “not perhaps the most overwhelming showing on the part of the government,” but concluded that a grand jury might reasonably want to hear testimony about the radio. He agreed to hold Higazy. And once in custody in a small cinder-block cell, the ground shifted.

Higazy was detained because his “testimony” was material, but prosecutors did not actually want the testimony he was offering. Indeed, it was clear, Dunn said, that if Higazy went before a grand jury and stuck with his story, he would be charged with perjury. Instead, they wanted him to change his story and tell the “truth” as they saw it.

Unless he did that, it wasn’t clear when Higazy would be released, or how he could earn his freedom from his top-security cell at the Metropolitan Correction Center.

“You’re guilty until proven innocent as a material witness,” Higazy said. “You’re in a closed loop. As far as I knew, they were going to hold me indefinitely until I ‘cooperated.’ There were other guys [at the correction center] who had been there since a few days after Sept. 11. I didn’t want to be there indefinitely.”

That fear led Higazy – against Dunn’s advice – to ask for a lie detector test, hoping it would show he wasn’t lying. Prosecutors agreed, but insisted Dunn couldn’t be in the room. The strategy backfired. Higazy spent three to four hours alone in a room with the government’s polygraph examiner, but no lie detector test ever was completed.

Instead, according to Higazy, the examiner – an FBI agent whose name is still under seal – impressed on him again and again that it would be hopeless to try to pass the test without changing his story, admitting he owned the radio and explaining where it came from. And eventually, Higazy says, as the test turned into an interrogation, a threat was made that led him to fear for both relatives at home and a brother attending school in upstate New York.

“If you don’t cooperate with us,” Higazy recalled the agent saying, “the FBI will make your brother upstate live under scrutiny and will make sure Egyptian security gives your family hell.” Prosecutors initially denied any threats were made, but now decline to comment on what happened and on the permissibility of using such threats as an interrogation technique.

Already convinced he would never get out if he stuck to the truth, the interrogation pushed him over the edge, Higazy said. He thought he was being “set up” in the United States, and saw no reason the setup couldn’t fool Egyptian police just as it had fooled the FBI.

“I began hyperventilating, my heart was racing, I had sweaty palms, I could feel my blood pressure going up,” Higazy recalled. “Admitting that the device was mine seemed like the lesser of two evils.”

After the session, Higazy sought to recant his “confession,” and refused to go before the grand jury to repeat it. So prosecutors charged him with lying to the FBI in his original denials about the radio and cited the confession at Higazy’s arraignment. Then, five days later, the whole case collapsed.

A pilot – who has never been identified – showed up at the Millenium looking for the radio he left in his room on the 50th floor. Ferry admitted he had lied, saying the radio had actually been found on a table by a co-worker. Higazy was released. Since then, Ferry has pleaded guilty to lying to the FBI, receiving a sentence of weekends in jail for six months. Rakoff has pressed the office of U.S. Attorney James Comey in Manhattan to investigate and report on what happened during Higazy’s interrogation.

Higazy – a chatty, friendly sort who has married an American woman and completed his courses since his release – was initially forgiving, ascribing his detention to an unavoidable mistake. Since then, he says, his views have hardened.

He and Dunn have learned, they say, that the government moved to arrest him as a material witness without a sworn statement from his chief accuser, Ferry. They have questions about why the government didn’t interview other Millenium witnesses – such as a second employee who, according to court papers, was with Ferry when the radio was discovered – before arresting Higazy. And they wonder why the government moved to detain Higazy without even bothering to call the educational institute that placed him at the hotel.

“It was a rush to judgment,” Dunn said.

They think he was from the start treated more like a suspect than a material witness. And they think the polygraph was a ruse – used to entice a man eager to win his freedom into a planned interrogation without his lawyer.

“All this,” Higazy said, “could have been avoided.”

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