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Second Court Ruling Redacts Information About Interrogation
By Dan Eggen
Washington Post Staff Writer
Thursday, October 25, 2007; A10

The FBI interviewer allegedly gave Abdallah Higazy a choice: Admit to having a special pilot's radio in a hotel room near the World Trade Center on Sept. 11, 2001, or the security service in his native Egypt would give his family "hell." Higazy responded by confessing to a crime he didn't commit.

"I knew I couldn't prove my innocence, and I knew my family was in danger," Higazy said later. ". . . 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 [Michael] Templeton made it quite clear that 'cooperate' had to mean saying something else other than this device is not mine."

The new details about the FBI's allegedly aggressive tactics in the Higazy case were included in a ruling briefly issued last week by the U.S. Court of Appeals for the 2nd Circuit, which reinstated a civil lawsuit brought by Higazy against the FBI and Templeton. In an unusual move, however, the appeals court withdrew the first opinion within minutes on Thursday and issued a second opinion Friday, with the details of Higazy's allegations removed.

"This opinion has been redacted because portions of the record are under seal," the new ruling reads. "For the purposes of the summary judgment motion, Templeton did not contest that Higazy's statements were coerced." Such redactions are imperfect in the Web age, and the original document remains accessible through links on sites and blogs devoted to appellate-court and legal issues.

Higazy was jailed for a month as a suspected accomplice to the World Trade Center attack, until a pilot showed up and asked for his radio back. The fresh details about his interrogation in December 2001 illustrate how an innocent man can be persuaded to confess to a crime that he did not commit, and the lengths to which the FBI was willing to go in its terrorism-related investigations after the Sept. 11 attacks.

Experts and officials have argued for the past six years about the limits of interrogation techniques and the reliability of what detainees say when they are questioned aggressively. To Higazy's attorneys and other lawyers who work on terrorism-detainee matters, his experience provides some answers.

"What would it take for an entirely innocent person to confess to participation in one of the most egregious crimes in U.S. history?" asked lawyer Jonathan Abady. "People don't do that voluntarily. . . . It's clear that there was significant coercion brought to bear here."

The Justice Department declined to comment on the case yesterday. A Justice official who asked not to be identified discussing an ongoing case said the FBI has not conceded that Higazy's allegations are true but agreed to proceed as if they were valid in order to argue the legal issues in the case.

The appellate court did not rule on the veracity of Higazy's allegations but concluded that Templeton lacked qualified immunity shielding him from the civil lawsuit.

Higazy, the son of a former Egyptian diplomat who lived for a time in Virginia with his family, arrived in New York from Cairo in August 2001 to study engineering at Polytechnic University in Brooklyn . He was sponsored by the U.S. Agency for International Development and the Institute for International Education, which arranged for him to stay at the Millenium Hilton Hotel, across the street from the World Trade Center in Lower Manhattan , court records show.

Higazy was evacuated along with other residents on Sept. 11, after the second plane hit the twin towers. He was carrying $100 in cash and his wallet.

When Higazy returned on Dec. 17 to retrieve his belongings, three FBI agents were waiting. They told him that hotel employees had found a transceiver capable of air-to-air and air-to-ground communication in his room safe, along with a Koran and his passport, records show.

"That's impossible," Higazy responded, according to court records.

Over the next 10 days, Higazy insisted the radio was not his, and a federal judge warned the FBI and federal prosecutors that if they did not produce better evidence, he would let Higazy go on Dec. 28. The FBI suspected that he had used the radio as a beacon to help guide the hijackers.

According to both the sealed and public court records, the FBI on Dec. 27 set out to increase the pressure on Higazy. It put him in a room with Templeton, who was a polygraph examiner. Templeton concluded that Higazy was being evasive in his answers about the attacks.

As a series of questions neared an end, Higazy requested a halt because he was feeling intense pain in his arm and could not breathe. The court's decision, quoting Higazy's account, said Templeton "called Higazy a baby and told him that a nine-year-old could tolerate his pain."

Templeton also allegedly told Higazy that if he did not cooperate, the FBI would make his brother "live in scrutiny" and would "make sure that Egyptian security gives [his] family hell," according to the sealed portion of the ruling. Templeton allegedly banged on the table and screamed at Higazy, calling him a liar.

The ruling also said Templeton admitted to knowing how the Egyptian security forces operated: "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 confessed to owning the radio, though he provided three versions of how he had obtained it. He was denied bail the next day and was charged on Jan. 11, 2002, with making false statements connected to the Sept. 11 attacks.

Three days later, an airline pilot from Ohio who had stayed one floor below Higazy on Sept. 11 walked into the Millenium Hilton and asked for his radio. Within two days, Higazy was released, and a hotel security guard eventually pleaded guilty to making false statements to FBI agents about the location of the radio.

"What if that pilot had not walked into the Millenium Hotel?" Abady said. "We know that Mr. Higazy could have spent the rest of his life in prison."

Catherine O'Hagan Wolfe, clerk for the appellate court, said the original Higazy ruling was withdrawn to remove information that should have been sealed. She said that the court made the decision and that it was not done at the request of the Justice Department or the FBI.

Wolfe said the redacted information was originally sealed for the safety of Higazy and his family. The passage that was removed is about a page long and centers on Higazy's allegations of Templeton's threats and his fears of Egyptian security services.

"Prior to the world of the Internet, a decision would be issued and then withdrawn without any consequences of any moment," Wolfe said. "Now if that happens it raises the specter of interference or some nefarious intent at work, which is not the case."

Stephen Bergstein, an appellate lawyer from Chester , N.Y., who hosts a blog about 2nd Circuit issues, said the information that was deleted "was more embarrassing than worthy of secrecy."

"Had they left it in, a lot of people probably wouldn't have noticed," Bergstein said. "With the Internet, nothing ever goes away."

Staff researcher Julie Tate contributed to this report.