New York Times correspondent Benjamin Weiser reports. Excerpt:
Release to the public of a report due this week on how the F.B.I. obtained a confession from an innocent Egyptian student who was detained in connection with the attack on the World Trade Center could be delayed as a result of an escalating dispute between prosecutors and the judge who ordered the inquiry, court documents show.
The inquiry focuses on allegations by the student, Abdallah Higazy, that an F.B.I. agent administering a polygraph coerced him into confessing that he owned an aviation radio that was found in the Millenium Hilton Hotel in Lower Manhattan after the Sept. 11 attack, which raised suspicions he might be involved in the hijackings.
Mr. Higazy was later charged with lying when he denied owning the radio, and spent about a month in jail in solitary confinement. He was finally released after a security guard admitted making up the story that the radio belonged to Mr. Higazy, and the radio was claimed by another hotel guest.
The judge, Jed S. Rakoff of Federal District Court in Manhattan, who ordered the investigation into the circumstances of Mr. Higazy’s confession to the F.B.I., had directed the government to report to him by this Thursday. The judge said he would also decide whether to make the results of the investigation public.
But federal prosecutors in Manhattan, citing the doctrine of separation of powers, told the judge that he did not have the authority to tell them which crimes to prosecute, or when to prosecute them.
“It is our view that the court lacks the power,” wrote the office of United States Attorney James B. Comey, “to order us to conduct an investigation of an F.B.I. agent and report the results to the court in writing.”
The prosecutors wrote that their investigation was “fully under way” and that they would present the results to the judge in confidence, but not because they were obligated to. They asked the judge to hold off if he decides to order the public release of the findings, as the government may seek to appeal and block such action.
Prosecutors said they were also concerned about making the findings public if the agent, who has denied the allegations, is exonerated.
The name of the F.B.I. agent has not been released. Court documents released earlier show that Mr. Higazy complained that the agent “threatened the safety and security” of his family members in Egypt and the United States, and that he felt he had no choice but to make an admission “to remove his family from harm’s way.”
For discussion and further documentation on the Higazy case, see the AntiPolygraph.org message board thread, Polygraph helps coerce false confession.