September 25, 2009
9/11 Wrongful-Accusation Suit Settled
By BENJAMIN WEISER

The United States government has paid $250,000 to settle a lawsuit by an Egyptian man who had been wrongly suspected of assisting the 9/11 hijackers with a two-way aviation radio that a security guard claimed was found in the man’s hotel room overlooking the World Trade Center.

The man, Abdallah Higazy, who was jailed for more than a month, was released in January 2002 after a pilot came forward and said that the radio had been his; the guard admitted making up the story.

In his lawsuit, Mr. Higazy, a 30-year-old student at the time of his arrest, also said that he was coerced by an F.B.I. agent into making a false confession that the radio was his. He said the agent threatened his family members in Egypt, and he felt he had no choice but to make an admission to protect them.

“Abdallah Higazy was totally innocent,” said one of his lawyers, Jonathan S. Abady, “a victim of what many perceived to be the overzealous and counterproductive tendencies in law enforcement that became of such concern during the previous administration.”

Mr. Abady said the settlement, approved in July, ended a seven-year legal battle in which the suit was dismissed, and then reinstated by an appeals court.

Mr. Higazy, now 38 and living in Cairo, said by phone on Thursday that he felt relieved that the case was finally over. “But it just leaves a bitter taste in a person’s mouth,” he added. “Why did it have to take this long?”

The F.B.I. and United States attorney’s office declined to comment on the settlement, which included no admission of fault or liability by the agent, Michael Templeton; the bureau; or other government officials. Mr. Templeton had filed an affidavit saying, “At no time were any threats made by me to this subject.”

Mr. Higazy, the son of a former Egyptian diplomat, came to the United States in 2001 to study computer engineering at Polytechnic University in Brooklyn, and was staying at the Millenium Hilton Hotel at the time of the attack.

After the guard claimed that the radio was found in his room, Mr. Higazy denied it was his, and asked to take a lie-detector test. It was during that process, he said, that the agent made threats against his family, leading him to give varying accounts — all false — of how he had obtained the radio.

Mr. Higazy said that after he was cleared, he remained in the United States until 2004, obtaining his master’s degree in engineering. Since then, he said, he has worked as a teacher and an assistant principal in a school in Egypt. He said that he had considered returning to the United States, but had lingering concerns about how he might be received.

“His name was synonymous with the hijackers,” said Earl S. Ward, another of his lawyers, “and I don’t think he was ever able to live that down.”

Higazy is a citizen of Egypt. His father once served as a diplomat in Washington, D.C., and Higazy received part of his high school and elementary school education in Virginia. Higazy arrived in New York from Cairo in late August 2001, to study computer engineering at Polytechnic University in Brooklyn, New York. His studies were sponsored by the United States Agency for International Development and the Institute for International Education. These institutions arranged for him to stay at the Millenium Hotel, which was across the street from the World Trade Center (“the Center”), in New York City.

On September 11, 2001, Higazy awoke in a corner room on the fifty-first floor of the hotel.³ The first hijacked airliner hit the Center at 8:46 a.m., approximately forty-five minutes after Higazy awoke, and while he was still in his room. After the second plane hit the second tower, at 9:03 a.m., Higazy was evacuated with the other hotel guests. Higazy left most of his belongings in the hotel room, taking only one hundred dollars in cash, his wallet, and the clothing he was wearing.

In late September or early October, hotel employees, including Yule, Millenium’s chief security officer, and Ferry, a Millenium security employee, instituted a plan for retrieving and inventorying guest property. On October 11, 2001, Ferry retrieved a radio, which he said he had found in room 5101. Ferry told Yule that a passport, yellow medallion, and Koran were found with the radio in the room’s safe. In late November, another hotel employee was performing a second inventory of guest property and brought the radio to Yule’s attention. This time, Yule found the circumstances to be “sinister” and called the FBI to tell them that he had found “something of interest they should see.” Higazy, 346 F. Supp. 2d at 438. FBI agents Vincent Sullivan (“Sullivan”) and Christopher Bruno (“Bruno”) came to examine the radio, which they determined was an air-band transceiver capable of air-to-air and air-to-ground communication.

On December 17, 2001, Higazy returned to the hotel to pick up his belongings. He went in the morning because he had a university final examination that afternoon. He was approached by three FBI agents: Sullivan, Bruno, and Adam Suits (“Suits”). The three agents had been told that Higazy would be coming. The agents asked Higazy about the radio, and Higazy told them that it was not his. When the agents told him that the radio was found in his room’s safe, he replied, “[T]hat’s impossible.” Higazy initially told the agents that he had never seen a radio like this one before, but he later told the agents that he was once a lieutenant in the Egyptian Air Force and had knowledge of radio communications. The FBI questioned Ferry twice while Higazy was being interviewed. Each time, Ferry asserted that he found the radio in the safe on top of the passport. At the end of the interview, the FBI detained Higazy as a material witness, pursuant to the federal material witness statute. See 18 U.S.C. § 3144. Higazy later explained that he was worried about the effect this could have on his scholarship: “I remember amongst the things that I told the scholarships people, ‘I apologize. I’ve been arrested. I’m going to miss my final exam today.’ I just want to put that on record. And I remember the detective looking at me and saying, ‘You’re being arrested as a material witness for 9/11 and the only thing you’re worried about is missing your final exam?’ I said, ‘Yes.’”

Higazy was taken from the hotel to the FBI building, where he was, in his words, “in shock, in disbelief.” Higazy voluntarily waived his right to counsel, spoke with agents, and then changed his mind and asked for an attorney. The interrogation stopped. Higazy spent the night of December 17, 2001, in detention. Because of the contradiction between what Higazy said and what the hotel employees told the FBI, Bruno swore out an affidavit where he concluded that Higazy might have given false statements to federal law enforcement agents. Bruno completed the affidavit, dated December 18, 2001, in support of a material witness warrant, “so that [Higazy] may be produced for testimony before a grand jury in the Southern District of New York.” According to this affidavit, the grand jury was “investigating various felony offenses, including, among others, the destruction of and conspiracy to destroy aircraft (18 U.S.C. § 32); bombing and bombing conspiracy (18 U.S.C. § 844); racketeering and racketeering conspiracy (18 U.S.C. § 1962); and seditious conspiracy to levy war against the United States (18 U.S.C. § 2384).”

Later that day, Higazy was brought before the United States District Court for the Southern District of New York (Rakoff, J.), on Bruno’s material witness warrant. This warrant alleged that Higazy was a witness who might have information related to the terrorist attacks of September 11. Judge Rakoff summarized the government’s theory: “the suggestion that the government is making is based on the fact that a cooperating witness, based on other Al Qaeda activities, suggests that the hijackers may have placed a beacon or other device in the form of this transceiver in or near the World Trade Center in advance of an attack to help direct the pilots to their targets.” Higazy’s attorney told the court that Higazy denied owning the radio and was “urgently desirous of taking a lie detector test.” Judge Rakoff noted, with regard to the subject of bail, “I want to reemphasize that this is not perhaps the most overwhelming showing on the part of the government,” but he decided that “the witness will be detained through, but on the present showing not beyond, December 28.” Judge Rakoff scheduled another hearing on December 28 “to see where things stand.” Judge Rakoff also said, “[t]he government clearly is suggesting that it might have further applications to make on the 28th, but it is representing, as I understand it, its expectation that the witness would be presented to the grand jury before the close of business on the 28th. Is that right?” The government replied: “[t]he witness will be presented —it is our expectation that that will happen.”

The government expressed its doubt that a polygraph of Higazy would be useful and opposed Higazy’s request to take one. They explained that if Higazy was a member of al Qaeda, he could pass it. Nevertheless, on December 27, Templeton—who up until this point was not involved in the investigation—conducted a polygraph examination of Higazy. Templeton began the test by asking Higazy background questions on subjects such as Higazy’s scholarship, homeland, family in Egypt, brother in upstate New York, and girlfriend. He also asked Higazy whether he had anything to do with the attacks of September 11, 2001. The first round of testing allegedly suggested that Higazy’s answers to the questions relating to the September 11 attacks were deceptive. As the second series of questioning was ending, Higazy requested that Templeton stop. He testified that he began “feeling intense pain in my arm. I remember hearing my heartbeat in my head and I just couldn’t breathe. I said, ‘Sir, sir, please, stop. It hurts. Please stop. Please take it off.’” Templeton unhooked the polygraph, and according to Higazy, called Higazy a baby and told him that a nine-year-old could tolerate this pain. Templeton left the room to get Higazy water, and upon his return, Higazy asked whether anybody else had ever suffered
physical pain during the polygraph, to which Templeton replied: “(i)t never happened to anyone who told the truth.”

Higazy alleges that during the polygraph, Templeton told him that he should cooperate, and explained that if Higazy did not cooperate, the FBI would make his brother “live in scrutiny” and would “make sure that Egyptian security gives [his] family hell.” Templeton later admitted that he knew how the Egyptian security forces operated: “that they had a security service, that their laws are different than ours, that they are probably allowed to do things in that country where they don’t advise people of their rights, they don’t – yeah, probably about torture, sure.”

Higazy later said, “I knew that I couldn’t prove my innocence, and I knew that my family was in danger.” He explained that “[t]he only thing that went through my head was oh, my God, I am screwed and my family’s in danger. If I say this device is mine, I’m screwed and my family is going to be safe. If I say this device is not mine, I’m screwed and my family’s in danger. And Agent Templeton made it quite clear that cooperate had to mean saying something else other than this device is not mine.”

Higazy explained why he feared for his family:

"The Egyptian government has very little tolerance for anybody who is —they’re suspicious of being a terrorist. To give you an idea, Saddam’s security force—as they later on were called his henchmen—a lot of them learned their methods and techniques in Egypt; torture, rape, some stuff would be even too sick to . . . . My father is 67. My mother is 61. I have a brother who developed arthritis at 19. He still has it today. When the word ‘torture’ comes at least for my brother, I mean, all they have to do is really just press on one of these knuckles. I couldn’t imagine them doing anything to my sister."

And Higazy added:

"[L]et’s just say a lot of people in Egypt would stay away from a family that they know or they believe or even rumored to have anything to do with terrorists and by the same token, some people who actually could be —might try to get to them and somebody might actually make a connection. I wasn’t going to risk that. I wasn’t going to risk that, so I thought to myself what could I say that he would believe. What could I say that’s convincing? And I said okay."

Higazy then gave Templeton a series of explanations as to how he obtained the radio. First, he admitted that he stole the radio from J&R, an electronics store. Then he recanted this story, and explained that he found it near J&R. Higazy next denied ever seeing or possessing the radio. Templeton allegedly banged on the table and screamed at Higazy: “You lied to me again! This is what? How many lies?” Higazy then lied again, this time telling Templeton that he found the radio on the other side of the Brooklyn Bridge. Higazy recalled that Templeton “turned so red I thought he was going to hit me.” Templeton accused Higazy of being a liar, and said that he would “tell Agent Sullivan in my expert opinion you are a terrorist.” Finally, Higazy told Templeton that he had stolen the radio from the Egyptian military and had used it to eavesdrop on telephone conversations.

Templeton then wrote out a statement providing that Higazy had stolen the radio from the Egyptian military, which he asked Higazy to sign. Higazy remembered that his attorney was outside, and asked to see his attorney. At first, Higazy’s attorney was angry with Higazy, thinking Higazy had lied to him, but when Higazy told his attorney that he had not lied to him, the attorney advised Higazy not to sign the statement.

The parties appeared the following day, December 28, 2001, for the previously scheduled hearing before Judge Rakoff. At the hearing, the government proffered its “new evidence,” apparently the information gained during the polygraph interview: “[Higazy] has admitted it is his radio, and he has provided I believe about three different versions of where it came from.”

Judge Rakoff commented, “it no longer strikes me as even an arguably close call whether to detain him, given the apparent unreliability or inconsistency between what was previously represented and what I am now being advised is the situation.” The parties agreed to adjourn the bail hearing; Higazy’s attorney did not object to the government’s request that bail be denied and Higazy be further detained. Judge Rakoff ordered Higazy detained and instructed the parties to appear before him on January 14, 2002.

On January 11, 2002, Agent Bruno filed a criminal complaint against Higazy for making false statements, in violation of 18 U.S.C. §1001(a). Higazy was brought before the United States District Court for the Southern District of New York (Maas, M.J.), where the government implied that Higazy’s false statements were somehow connected to the investigation of the September 11 terrorist attacks: “[t]he crime that was being investigated when these false statements were repeatedly made I think can fairly be characterized as perhaps the most serious in our country’s history.” In its bail argument, the government alluded to Higazy’s “three different versions of how he had come into possession of the radio,” and concluded that Higazy “is not somebody who can be deemed trustworthy.” Magistrate Judge Maas ordered Higazy to be detained and held without bail.

Three days later, on January 14, 2002, an airline pilot, who had been staying on the 50th floor of the Millenium Hotel returned to the hotel to reclaim his property. After inspecting his items, the pilot informed the hotel staff that his transceiver was missing. Millenium immediately contacted the FBI, which then verified that what was thought to be Higazy’s transceiver was in fact the pilot’s and that the pilot had not had any interaction with Higazy. The FBI re-interviewed Ferry, who revised his original account, this time explaining that the radio was found on a table in Higazy’s room and not in the safe. The government withdrew its complaint against Higazy, who was released on January 16, 2002, after thirty-four days in custody. In a letter to Judge Maas, the government conceded:

"The owner of the aviation radio had no interaction with Mr. Higazy. It is still unclear, therefore, how the radio was transferred from the room on the 50th Floor to Mr. Higazy’s room on the 51st floor. Employees of the hotel have indicated that, although the hotel has been closed since September 11th, a number of people entered the room in which Mr. Higazy had been staying at different times between September 11th and the day on which the radio was found."

On March 18, 2002, Judge Rakoff convened a hearing to inquire into the parties’ representations to him regarding Higazy’s confession. See In re Material Witness Warrant, 214 F. Supp. 2d 356 (S.D.N.Y. 2002). Judge Rakoff explained that he felt he had been “misled” twice. In an opinion and order, he wrote:

"[T]he Court was not willing to simply go-along with the uncontested request for a further detention of Higazy but, instead, demanded further information regarding what had previously seemed a close call, and in the process was materially misled by being informed of a confession that subsequently was shown to be false."

In re Material Witness Warrant, 214 F. Supp. 2d at 362. Judge Rakoff asked for a government inquiry into the Higazy affair.⁴

On December 12, 2002, Higazy filed an eight-count complaint against Templeton and the hotel defendants. Higazy’s claims against Templeton were brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). After discovery, all defendants but Ferry moved (Templeton in a separate motion) for summary judgment.⁵ The district court issued a memorandum and order on September 30, 2004, granting, inter alia, Templeton’s motion to dismiss Higazy’s Fourth, Fifth, and Sixth Amendment claims.6 See Higazy, 346 F. Supp. 2d at 436. The district court dismissed Higazy’s Fifth Amendment self-incrimination claim, concluding that Templeton was entitled to qualified immunity. The district court dismissed Higazy’s Fifth Amendment due process claim because “Templeton’s conduct and threats as a matter of law cannot be classified as conscience-shocking or constitutionally oppressive. Templeton’s alleged threats, whether intended to coax a confession or arbitrarily frighten, may be the subject of proper criticism, but they are not actionable under the Fifth Amendment’s due process clause.” Id. at 451.7 The district court also dismissed Higazy’s Sixth Amendment claim: “Higazy’s Sixth Amendment claim fails at the threshold . . . . Higazy does not present the Court with any case in which a plaintiff successfully raised a Bivens or § 1983 action to redress the deprivation of counsel (under either the Fifth or Sixth Amendment) in the abstract.” Id. (footnote omitted). Final judgment was entered on June 29, 2005.