Below are pages 2-11 of the report on the investigation conducted by the U.S. Department of Justice's Office of the Inspector General (OIG) prepared by Deputy U.S. Attorney David N. Kelley in behalf of U.S. Attorney James B. Comey, Southern District of New York, on how an FBI polygrapher came to extract a false confession from Abdallah Higazy. The first page of the report was not available.
Mr. Higazy, an Egyptian graduate student who had recently received a scholarship to study in the United States, became a suspect in the 9/11 terror investigation when an employee of the Millennium Hilton Hotel in lower Manhattan, in which Higazy was staying at the time of the World Trade Center attack, claimed to have found an aviation radio inside Higazy's room safe. Higazy denied any knowledge of the radio. But following an FBI polygraph interrogation, he confessed to owning it. Charged with lying to the FBI, Higazy spent a month in prison (much of it in solitary confinement) before the radio's owner, an American pilot, came forward to claim it. Having been completely exonerated, Higazy was released from custody and all charges against him were dropped. The hotel employee who claimed to have found the radio in Higazy's room admitted to having fabricated the story. Higazy explained that he had falsely confessed because the polygrapher had threatened his family. Federal Judge Jed S. Rakoff ordered the U.S. Attorney's Office to investigate how the FBI came to extract a false confession from Mr. Higazy.
The OIG report's main conclusion, that "there is insufficient evidence to corroborate Higazy's allegations that the polygrapher threatened him" was foreordained by the FBI's deliberate policy of not audio- or video-recording polygraph examinations, a policy that ensures there will be no record of any such misconduct by a polygrapher.
Higazy's lawyer, Robert S. Dunn, has characterized the OIG report as a whitewash. This view is supported by the fact that the OIG failed to even review Higazy's polygraph charts before filing its report. That the OIG was biased against Higazy and in favor of the polygrapher is evidenced by the fact that in reporting on its interview of Higazy, almost everything Higazy said is caveated with prefatory words such as "Higazy stated," "Higazy said," "According to Higazy," and "According to Higazy's account," whereas in reporting on the polygrapher's interview, such prefatory remarks appear relatively infrequently, and much of the polygrapher's account is presented as if it were undisputed fact.
Although the names of the FBI personnel involved have been omitted from the report, their identities are publicly known. Agents [#1] and [#2] referred to in the report are FBI Special Agents Vincent Sullivan and Christopher Bruno. (It is not certain which is #1 and which is #2). The polygrapher who extracted the false confession from Abdallah Higazy is FBI Special Agent Michael Templeton.
For discussion of the Higazy case, see the AntiPolygraph.org message board thread, Polygraph helps coerce false confession.
The Honorable Jed S. Rakoff October 31, 2002 Page 2 was appropriate since the OIG now has statutory authority to investigate allegations of misconduct by Department of Justice employees, including FBI agents, and since the investigation raised the possibility that current or former members of this Office might have to be interviewed as witnesses. The OIG has conducted a thorough investigation of the circumstances surrounding the administration of the polygraph examination and Higazy's resulting confession, in which he stated that he was the owner of an aviation radio that was found in his room at the Millenium [sic] Hilton Hotel. This investigation included a review of the FBI files related to Higazy's case; an examination of the various forms that Higazy reviewed and signed prior to submitting to the polygraph examination, including an advice or rights form, a waiver of rights form, and a "consent to interview with polygraph" form; an examination of the polygraph examination worksheet that was used during the examination, and the polygraph report (which included that in the opinion of the examiner, Higazy's responses to two relevant questions were indicative of deception); and an examination of an FBI 302 report that memorialized statements that Higazy had made during the course of the polygraph examination. The OIG also conducted extensive interviews with, and received sworn written affidavits from, the following individuals: Abdallah Higazy, FBI Special Agent [#1], FBI Special Agent [#2], and the polygrapher. The OIG also attempted to interview Robert S. Dunn, Esq., counsel for Higazy, as the OIG viewed him as a witness in this investigation; however, Mr. Dunn refused to be interviewed by the OIG, stating that "he had nothing to bring to the table." Mr. Dunn also refused to allow Higazy to be interviewed without Mr. Dunn being present, and rejected the offer to provide Higazy with another attorney who could serve to protect Higazy's interests, but who was not seen by the OIG as a potential witness to the investigation. Nonetheless, although he refused to be formally interviewed by the OIG, during the course of Higazy's interview, Mr. Dunn made some relevant comments that will be reported below. Significantly, the OIG is still in the process of obtaining from FBI headquarters the original polygraph charts from Higazy's polygraph examination. Those charts will be reviewed by the OIG polygraph section for quality control ____________________ jurisdictional issue over who would conduct any such investigation.
The Honorable Jed S. Rakoff October 31, 2002 Page 3 purposes and the results of that review will be reported in the near future. Since that piece of the investigation is not yet complete, this Office is not in a position to conclude its investigation. However, based on this Office's review of the results of the OIG investigation to date, it appears that there is insufficient evidence to corroborate Higazy's allegations that the polygrapher threatened him; as a result, no further action against the polygrapher appears to be warranted at this time. OIG Interview of Higazy Higazy was interviewed by the OIG in the presence of Mr. Dunn on September 23, 2002, and provided a sworn written statement that day. In that statement, Higazy claimed, in substance, that during the course of the polygraph examination, the polygrapher threatened that if Higazy did not cooperate, his family in Egypt and his brother in upstate New York would come under scrutiny and that their lives would be made into a "living hell." Higazy stated that the polygrapher repeatedly raised his voice and pounded on the table in the conference room in which the examination was administered. Higazy stated that he was so upset and overwhelmed by the whole situation that he completely forgot that he could stop the examination at any time to consult with his attorney, who was located immediately outside the conference room during the course of the polygraph examination. Higazy stated that in order to save his family from the alleged threats, he decided to confess falsely to owning the radio, and proceeded to provide the polygrapher with three different versions of how he obtained the radio. The last of the explanations was that Higazy had stolen the radio from the Egyptian Air Force, of which he was a former member, and brought it with him to New York. Higazy stated that when the polygrapher asked him to sign a written statement based on this third story, he remembered that he had an attorney outside and asked to be allowed to have the attorney review the statement before he signed it. At that point, the polygrapher summoned Mr. Dunn, who came into the room with Higazy and advised him not to sign the statement. Higazy stated that he did not tell his attorney, the Government or the Court of the alleged threats that day or the next day at a court hearing because he was afraid. Higazy said that it was not until several days later, at a meeting with his attorney at the MCC, that he first informed Mr. Dunn of the alleged threats made to him by the polygrapher. According to
The Honorable Jed S. Rakoff October 31, 2002 Page 4 Higazy, it was not until approximately ten days after the first polygraph examination, when he was produced again for a second such examination, and in the presence of his lawyer, that he confronted the polygrapher with his allegation that the polygrapher threatened his family in order to get him to confess.2 During the OIG's interview of Higazy, Mr. Dunn acknowledged that it was explained to him beforehand that he would not be allowed in the conference room during the examination. However, it was his understanding that Higazy could stop the examination at any time to consult with him. Mr. Dunn told the OIG that he had heard some loud noises and pounding on the table during the course of the polygraph examination "but believed that it did not warrant any investigation on his part." As indicated above, Mr. Dunn has refused to be interviewed by the OIG, despite the fact that the OIG believed him to be a relevant witness to their investigation. OIG Interviews of Special Agents [#1] and [#2] Special Agents [#1] and [#2] of the FBI were separately interviewed by the OIG on September 30, 2002. Agents [#2] and [#1] were the case agents assigned to the investigation of Higazy, and were present outside of the conference room when Higazy was polygraphed. Agents [#1] and [#2] confirmed that Mr. Dunn and Higazy were specifically informed on December 27, 2001, prior to the commencement of the polygraph, that while Mr. Dunn would not be allowed in the conference room with Higazy, Mr. Dunn would be outside the room and that Higazy could request to stop the exam or speak to his attorney at any time. Agents [#1] and [#2] remained outside of the room during the course of the polygraph examination, along with Mr. Dunn. Agents [#1] and [#2] both said that they did not hear any loud noises coming from the room during the examination. Agent [#1] said that during the course of the exam, the polygrapher came out of the conference room and asked to see Agent [#2], who had left the area momentarily. While the polygrapher was outside the conference room, the door to the conference room remained open, and Mr. Dunn ____________________ 2 According to Higazy's account, Higazy had told Mr. Dunn of the alleged threat at their meeting in the MCC. Nonetheless, Mr. Dunn and Higazy both agreed to meet again with the Government with the intention of taking a second polygraph examination.
The Honorable Jed S. Rakoff October 31, 2002 Page 5 was present. The polygrapher then re-entered the conference room. Agent [#1] stated that some time later, the polygrapher exited the conference room and stated that Higazy was prepared to sign a written statement, but that he wanted his attorney to see it first. Agent [#1] recalled that Mr. Dunn proceeded into the conference room where he remained for approximately one hour. According to Agent [#1], when Mr. Dunn emerged from the conference room, he stated, in substance "[b]etween us Americans, what he [Higazy] is about to sign is not the story he is telling me." Agent [#1] then went into the conference room with Higazy while Agent [#2], the polygrapher, the AUSA assigned to the case, and Mr. Dunn talked outside of the conference room. Agent [#1] told the OIG that neither Higazy nor Mr. Dunn had told him about Higazy's allegations that he had been threatened by the polygrapher on December 27, 2001. Agent [#2] stated that during the polygraph examination, he momentarily left the area and was paged by Agent [#1]. Agent [#2] said that he later learned that the polygrapher wanted him to be present because the polygrapher believed that Agent [#2] was an emergency medical technician ("EMT") and because Higazy looked pale and was not feeling well. By the time Agent [#2] returned to the area outside the conference room, the polygrapher had re-entered the room. Agent [#2] stated that some time later, the polygrapher emerged from the conference room and stated that Higazy had admitted that the radio was his and had given three explanations for how he had obtained it. Mr. Dunn heard this briefing from the polygrapher and then went into the conference room with Higazy. Agent [#2] said that after Mr. Dunn went into the conference room, the polygrapher explained how reluctant Higazy had been to admit that the radio was his, and that the polygrapher had told Higazy that they had to resolve the radio issue to minimize the embarrassment to Higazy's family, who had probably already heard reports regarding the matter. According to Agent [#2], when Mr. Dunn exited the conference room, he stated that "between us Americans," Higazy had informed Mr. Dunn of a fourth version of how he came into possession of the radio, which Mr. Dunn did not recount to the agents that were present. Agent [#2] said that he did not hear any yelling, raised voices, or banging during the time that he was outside the conference room.
The Honorable Jed S. Rakoff October 31, 2002 Page 6 OIG Interview of the Polygrapher The OIG interviewed the polygrapher on October 25, 2002. By way of background, this polygrapher began his career with the FBI as a clerk in 1976, and became a Special Agent in 1985. He was selected for polygrapher training in 1995, and attended an intensive 14-week training program at the Department of Defense Polygraph Institute in Alabama. The polygrapher has also completed three advanced courses specializing in Foreign Counter-Intelligence at the Polygraph Institute. He is a member of the American Polygraph Institute and reviews their polygraph training materials. The polygrapher stated that he has never been disciplined by the FBI, nor have any of his polygraph examinations come under scrutiny. a. Pre-test procedures The polygrapher stated that prior to administering the polygraph to Higazy on December 27, 2001, he saw Mr. Dunn outside the room in which he was going to administer the examination and that he told Mr. Dunn that the test questions related to Higazy's ownership of the radio and his participation in the 9/11 attacks. When the polygrapher entered the room, he explained the entire polygraph process to Higazy. The polygrapher reviewed with Higazy, and then obtained Higazy's signature on the advice of rights form and the "consent to interview with polygraph" form. The polygrapher then conducted a pre-test interview of Higazy during which he obtained some background information from Higazy. The polygrapher also reviewed with Higazy the polygraph examination worksheet and reviewed the questions he was going to ask Higazy. According to the polygrapher, all of these steps are routine protocol for an FBI polygraph. The polygrapher also stated that Higazy was encouraged to ask any questions that he may have and was informed that he could stop the examination at any time to consult with his attorney, who was immediately outside the conference room. Higazy informed the polygrapher that he was in good health and taking no medications. The polygrapher then asked Higazy if he had any concerns about what he had been through, and specifically asked Higazy about his previous request to Agent [#2] that Agent [#2] not contact the Egyptian Consulate concerning his detention as a material witness. Higazy told the polygrapher that he did not want the Egyptian Security Services to get involved because "they did not handle things the way American law enforcement agencies
The Honorable Jed S. Rakoff October 31, 2002 Page 7 do." The polygrapher told Higazy that the Egyptian Security Services had not yet been notified, but that they probably would be some time in the future. Higazy also told the polygrapher that he was concerned about losing his scholarship, and that he was concerned that his being detained would have an affect on his family and may bring scrutiny upon his brother, who was a student in upstate New York. The polygrapher stated that he asked Higazy about the Egyptian Security Services in order to alleviate any concerns that might be a barrier to Higazy's successful completion of the examination. The polygrapher stated that this was the only time during the examination that the Egyptian Security Services was mentioned. b. The polygraph examination. The polygrapher stated that during the administration of the polygraph exam, Higazy began to audibly grunt; however, the polygrapher did not observe any change in Higazy's physiology. Nonetheless, the polygrapher interrupted the examination and asked Higazy how he felt. When Higazy responded that he felt dizzy, the polygrapher stopped the examination, removed the polygraph device, and instructed Higazy to put his head between his legs. The polygrapher then briefly opened the door to the room in an effort to locate Agent [#2], whom the polygrapher believed to be an EMT. When the polygrapher learned that Agent [#2] had momentarily left the area, the polygrapher returned to the room and terminated the examination. The polygrapher determined that based on the two charts that he was able to complete on Higazy, Higazy's physiological responses to the relevant questions were indicative of deception. Those relevant questions and answers were: 1) Did you take part in those attacks? Reply: No; 2) Were you involved in those attacks? Reply: No. Higazy asked the polygrapher if anyone had ever become ill during the course of a polygraph examination, and the polygrapher responded that it had not happened to anyone who was telling the truth. c. Post-test interview The polygrapher informed Higazy that he had failed the polygraph examination, and Higazy again denied any involvement in the 9/11 attacks. The polygrapher then conducted a post-test interview, in accordance with the FBI's accepted methodology in conducting polygraphs. The polygrapher stated that Higazy expressed concern that if he admitted that the radio was his,
The Honorable Jed S. Rakoff October 31, 2002 Page 8 then he would lose his scholarship. The polygrapher told Higazy that "if it was your radio and it wasn't used to bring those towers down, nobody cares, I'll give you another test and you can go back to school." The polygrapher stated that after some time, Higazy stated that he had found the radio in the subway in New York. Higazy then retracted this statement and told the polygrapher that he found the radio at the base of the Brooklyn bridge. Higazy then retracted this second version and said that he had stolen the radio from the Egyptian Air Force and that he had not told the FBI about stealing the radio because he feared that he would end up in an Egyptian prison. When Higazy offered this version of why he had the radio, he began calling it a "JHP," referring to the correct model name of the radio that was actually found, and stated that he had taken it from the Egyptian Air Force because it was "so cool." Higazy also said that he used the radio to intercept phone calls. Based on Higazy's acknowledgment that the radio was his, the polygrapher informed Higazy that he could administer another test to gauge Higazy's truthfulness about his involvement in the 9/11 attacks. Higazy agreed to the additional exam. The polygrapher then prepared a written statement for Higazy to sign relating to the ownership of the radio. Higazy read the statement and told the polygrapher that everything in it was true, but that he wanted to review it with his attorney before he signed it. The polygrapher then exited the room and gave the written statement to Mr. Dunn who entered the room and remained inside the room with Higazy for approximately one hour. When Mr. Dunn emerged from the room, he told Agents [#2] and [#1], as well as the polygrapher, that Higazy was now telling him a different story and that Higazy would not sign the statement. Mr. Dunn said that Higazy was not denying ownership of the radio, but that he was telling a different story. Mr. Dunn then stated that he believed that Higazy could be a cooperating witness, and stated in substance, "he may be my client, but I'm an American too. That guy, with that radio, in that room, on that day, needs to be looked at." Mr. Dunn agreed to make Higazy available for another polygraph. According to the polygrapher, the only complaint that Mr. Dunn had on the night of December 27, 2001 was that someone had told Higazy that he possibly could keep his scholarship, which conflicted with Mr. Dunn's advice to Higazy that he could "kiss that scholarship goodbye."
The Honorable Jed S. Rakoff October 31, 2002 Page 9 The Meeting Regarding the Second Polygraph The next polygraph examination was scheduled to take place on January 8, 2002. However, on that date, after arriving at the location where the test was to be given, Mr. Dunn informed the AUSA and the polygrapher that Higazy would not take the exam unless Mr. Dunn was allowed to stay in the room during the course of the exam. Mr. Dunn told the polygrapher that Higazy had accused the polygrapher of threatening him during the first test, and that Higazy was denying ownership of the radio. Mr. Dunn asked the polygrapher to enter the room with Higazy, and according to the polygrapher, Higazy immediately stated that the polygrapher had threatened during the first test that he would ensure that the Egyptian Security Service would make Higazy's family's lives "a living hell." The polygrapher denied this accusation, and stated that he told Higazy during the course of the first examination that Higazy could consult with his attorney at any time during the examination. When Mr. Dunn asked Higazy if the polygrapher had indeed told Higazy that he could consult with Mr. Dunn during the first exam, Higazy responded, "I can't remember, I'm not a human tape recorder." Mr. Dunn refused to allow the second examination to proceed unless he was able to somehow observe the examination. As a result, the second examination did not take place.3 The polygrapher had no further contact with Higazy or Mr. Dunn, although he has read in newspaper accounts of Higazy's and Mr. Dunn's allegations that he threatened Higazy during the first exam. The polygrapher further stated that he conferred with a supervisor at FBI headquarters before administering the first polygraph to Higazy and that after the polygraph examination, the charts were subjected to a quality control review by the FBI, resulting in no negative comments as far as he was aware. ____________________ 3 It is the Government's understanding that, according to FBI protocol, no one other than the polygrapher and the examinee are allowed in the polygraph room during the administration of the exam because the presence of other parties may influence the results and render the exam not objective.
The Honorable Jed S. Rakoff October 31, 2002 Page 10 Conclusion Higazy's allegations that he was threatened or coerced by the polygrapher during the course of the polygraph examination remain uncorroborated. Of particular importance is the fact that Higazy did not raise the allegations of coercion until at least eleven days after the alleged threatening activity took place. His assertions that the polygrapher was yelling and banging on the table during the course of the polygraph examination are belied by: 1) the fact that Higazy knew that his attorney was right outside the interview room and that he was instructed that he could stop the examination at any time to consult with his attorney; 2) the fact that Mr. Dunn was outside the room during the course of the examination and did not perceive anything that warranted investigation on his part; and 3) the fact that neither Agent [#1] nor Agent [#2] heard any banging or yelling during the administration of the polygraph. Moreover, although he was told that he could stop the examination at any time to consult with his attorney, Higazy did not do so. Indeed, even when the polygrapher stopped the examination and left the conference room, leaving the door open, to speak with Agent [#2], Higazy made no attempt to speak with his lawyer, who was just outside the room. Mr. Dunn apparently did not perceive any reason to intercede with the examination at the point the door was opened. Therefore, it is the opinion of this Office that no further action concerning this matter is warranted at this time. As stated above, this preliminary conclusion is subject to the results of the ongoing review of the original polygraph charts by the OIG polygraph section. If that review raises additional questions, this Office will pursue any additional areas of investigation it deems appropriate. Since this Office does not believe that there is any need at this time to pursue any additional action against the polygrapher, the Government respectfully submits that this letter, which contains detailed descriptions of confidential
The Honorable Jed S. Rakoff October 31, 2002 Page 11 interviews, remain sealed. Respectfully submitted, JAMES B. COMEY United States Attorney By: __________________________ DAVID N. KELLEY Deputy United States Attorney Telephone: (212) 637-1025
AntiPolygraph.org Home Page > Reading Room