Court Reinstates Abdallah Higazy’s Lawsuit Against FBI Polygrapher Michael Templeton

New York Times journalist Alan Feuer reports on the case of polygraph victim Abdallah Higazy in “Lawsuit Is Reinstated for Man Wrongly Suspected in 9/11”:

A federal appeals court in Manhattan yesterday reinstated a lawsuit against the F.B.I. that was brought five years ago by an Egyptian student wrongly suspected of aiding the Sept. 11 hijackers with a sophisticated aviation radio in his hotel room.

The ruling, by the United States Court of Appeals for the Second Circuit, overturned a lower court’s decision to dismiss the lawsuit by the student, Abdallah Higazy, who was detained for 34 days shortly after the terrorist attack.

Mr. Higazy said that during an interrogation an F.B.I. agent coerced him into saying that the radio — which a security guard at the Millenium Hilton Hotel had said was in his room — was his when it was not.

Mr. Higazy, the son of a former Egyptian diplomat, came to New York from Cairo in August 2001 to study computer engineering at the Polytechnic University in Brooklyn. He had had some schooling in Virginia and was sponsored, in part, by the United States Agency for International Development, which put him up in a 51st-floor corner room at the Millenium, across Church Street from the twin towers.

When the towers were attacked, Mr. Higazy fled the hotel with all its other panicked guests, taking only his wallet and the clothing on his back.

Three months later, he returned to retrieve his belongings and was arrested by the F.B.I. on a material witness warrant after the security guard said he had found the radio, capable of communicating with passing airplanes, in Mr. Higazy’s room.

Within days, Mr. Higazy was given a lie-detector test and interrogated by Special Agent Michael Templeton of the F.B.I. who, Mr. Higazy said, coerced him into claiming ownership of the radio by making threats against his family in Egypt.

Mr. Higazy’s suit claims that Agent Templeton, who has denied the charges, said he would make sure Egyptian security forces gave his family “hell” unless he cooperated.

During Mr. Higazy’s detention, an airplane pilot, an American, returned to the Hilton to retrieve the radio, which he said he had accidentally left behind in his 50th-floor room.

Mr. Higazy was released. The security guard, Ronald Ferry, pleaded guilty to making false statements to the F.B.I., and an internal inquiry cleared Agent Templeton and others of any wrongdoing connected to the false confession.

In December 2002, Mr. Higazy filed his lawsuit in Federal District Court in Manhattan, claiming that his Fifth Amendment right against self-incrimination had been violated. The suit was dismissed in a June 2005 decision by Judge Naomi Reice Buchwald, who wrote in her order that “Templeton’s conduct and threats as a matter of law cannot be classified as conscience-shocking or constitutionally oppressive,” the appeals court noted.

In its own ruling, the appeals court sent the question of whether Mr. Higazy’s Fifth Amendment rights had in fact been violated back to Judge Buchwald for reconsideration and a potential trial. It said that Agent Templeton was not immune, as an employee of the government, from civil rights claims.

The law “asks whether an officer in Templeton’s shoes would have known that he was violating the right in question,” the appellate panel wrote. “We believe that a reasonable jury could conclude that he did.”

Earl Ward, one of Mr. Higazy’s lawyers, said, “We’re very pleased that the court reinstated the lawsuit, and we’re looking forward to bringing this issue before a jury.”

The F.B.I. declined to comment.

Unmentioned in the Times article is the fact that the Court’s opinion re-instating Higazy’s lawsuit was originally issued (and posted in PDF format to the court’s website) on Thursday, 18 October 2007, only to be withdrawn some two hours later. Howard Bashman, who posted a copy of the withdrawn opinion on his How Appealing legal blog writes:

Catherine O’Hagan Wolfe, the Clerk of Court of the U.S. Court of Appeals for the Second Circuit, has telephoned to advise that the opinion was withdrawn out of a concern that it might disclose information contained in a portion of the appendix on appeal that was submitted under seal. The Second Circuit plans to reissue the decision, as revised to omit any disclosure of information filed under seal, tomorrow morning. The purpose of Ms. Wolfe’s telephone call was to ask me to take down this blog’s posting of the decision to the internet.

Bashman declined to take down the withdrawn opinion, and has mirrored it, along with the redacted opinion issued on Friday, 19 October, on our Polygraph Litigation page.

The Wait a Second! law blog comments on the unusual withdrawal of a published opinion, noting that the redacted information concerns the circumstances leading to Higazy’s coerced false confession.

For further discussion of this case, see FBI Polygrapher Michael Templeton Named in Lawsuit on the message board.

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