JURIST - Hotline: Abdallah Higazy's coerced confession and the FBI's post-9/11 sweep

Andrew Wilson [attorney for Abdallah Higazy in Higazy v. Millennium Hotel et al.] "Mr. Higazy’s case is based on his claim that FBI Agent Templeton coerced his confession which was later used against him in a bail proceeding in violation of the Fifth Amendment.

Higazy was arrested on the suspicion that he was staying in a hotel across from the World Trade Center on September 11 with a ground-to-air radio capable of guiding the planes into the towers. After five hours of post-polygraph questioning from Templeton, Higazy confessed to owning the radio. This admission – at the time tantamount to being a conspirator in the 9/11 attacks – was then used against Higazy at two subsequent bail hearings: the first to detain him as a material witness, and the second as part of the government’s criminal case against him for lying to federal investigators. After more than a month in solitary confinement fearing a trial on his role in the 9/11 attacks, all charges were dropped against Mr. Higazy when the owner of the radio, a pilot from Ohio, came forward and requested it back.

The Second Circuit’s recent decision in Mr. Higazy’s civil case has reinstated liability against Agent Templeton for violation of the Fifth Amendment for use of the confession in Mr. Higazy’s criminal bail hearing. This is an important decision for constitutional advocates because it establishes, after Chavez v. Martinez, 538 U.S. 760, 770 (2003), that the use of a confession at a criminal bail hearing violates the Fifth Amendment. The opinion leaves open the interesting question of whether a material witness bail hearing is a "criminal case" for the purposes of the Fifth Amendment. The latter question has far-reaching consequences in the "war on terror."

It has become clear that, in the rush to investigate the September 11 attacks, the FBI widely employed material witness statutes to arrest suspects, rather than obtain arrest warrants that would have required the demonstration of probable cause. Robert Mueller, the head of the FBI during the September 11 investigation, has acknowledged that, as part of the September 11 investigation, "a number of suspects were detained on federal, state or local charges; on immigration violations; or on material witness warrants." (Robert S. Mueller, III, director, FBI, "Speech at the Commonwealth Club of California," San Francisco, California, April 19, 2002). For those, like Higazy, who have been swept up in this activity, although detained as a material witness, they may be targets of the FBI's investigation from the outset. If that is the case, they are better considered as subjects of criminal proceedings and protected by the Fifth Amendment from the use of their testimony against them. The Second Circuit has still not decided whether the use of a coerced confession at a bail hearing pursuant to the material witness statute violates the Fifth Amendment.

The Second Circuit’s decision in Mr. Higazy’s case means that his claim based on the use of his confession in his criminal bail hearing will be remanded to the District Court where he will proceed to trial for damages associated with the prolonged detention arising from the use of his confession."