FBI Coerced Confession Deemed "Classified"

Steve Bergstein is one of several who have blogged about a recent court ruling that reads like most any bestselling crime novel. Apparently, when the court originally posted their decision (complete with backstory) it detailed how a coerced confession was obtained by the FBI from Abdallah Higazy in relation to the 9/11 attacks. The details, however, were later removed and deemed "classified". "As I read the opinion I realized it was a 44 page epic, too long for me to print out. I blogged about the opinion while I read it online and then posted the blog as I ate lunch. Then something strange happened: a few minutes after I posted the blog, the opinion vanished from the Court of Appeals website! [...] The next day, the Court of Appeals reissued the Higazy opinion. With a redaction. The court simply omitted from the revised decision facts about how the FBI agent extracted the false confession from Higazy. For some reason, this information is classified."

Re:so, what were they?

[fizzywhistle]

its in the article:

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.

Here are the two opinions.

[sed quid in infernos]

Here's the unredacted opinion [law.com] and here's the redacted opinion [uscourts.gov].

Re:Can't Have It Two Ways

[Anonymous Coward]

George Bush is either an evil genius able to mastermind these great conspiracies, or, he's dumb as a rock.

How smart do you have to be to realize that you should hide the evidence? Honestly, the complexity of this scheme is not all that impressive -- the average kindergartener can figure out how to lie his way out of trouble. In any case, the "Bush is dumb" crowd generally attributes the more complex thinking to Cheney and other advisors.

From the redacted opinion

[PartPricer]

From the redacted opinion:

"This opinion has been redacted because portions of the record are under seal. For the purposes of the summary judgment motion, Templeton did not contest that Higazy's statements were coerced."

Re:Can't Have It Two Ways

[MikeBabcock]

Another post [slashdot.org] details a couple links:

Here's the unredacted opinion [law.com] and here's the redacted opinion [uscourts.gov].

Re:Ha!

[tiny69]

The Executive Order that starts the entire process that determines what can and cannot be classified states:

Sec. 1.7. Classification Prohibitions and Limitations.

(a) In no case shall information be classified in order to:

(1) conceal violations of law, inefficiency, or administrative error;

(2) prevent embarrassment to a person, organization, or agency;

http://www.archives.gov/isoo/policy-documents/eo-12958-amendment.html#1.7 [archives.gov]

My guess is that some Original Classification Authority (OCA) signed off on a Security Classification Guide that states interrogation techniques used by the FBI are classified.

Transcript of removed text

[Anonymous Coward]

Here is the full transcript of the removed text as of the original statement http://howappealing.law.com/HigazyVsTempleton05-4148-cv_opnWithdrawn.pdf [law.com]:

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.

Redacted part

[InvisblePinkUnicorn]

Here is the redacted part:

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."

For those who have had no counter-terrorism exp

[WillAffleckUW]

You probably don't realize that not only does torture not work, it actually gives you incredibly bad information.

The suggestion by a poster that they "give him warm milk and cookies" is actually one of many proven methods of interrogation.

Interrogation - the act of questioning. One has a number of people interact with the subject, and one or more of those people takes "the side" of the person being interrogated, bonding with them on many levels.

This works very very often.

It is far more effective, gives highly reliable results, and if cross-referenced, will yield even more results.

In short: Torture does not work. Interrogation - not involving torture - does work.

We'd be far better off spending 1/1000th as much as we waste on military ops against terrorists and hiring trained police interrogators (not torturers) and detectives who understand the social and cultural background of the terrorists.

Mind you, a few nukes in Saudi Arabia would solve the whole problem, since Iraq has nothing to do with 9-11. FYI, Pakistan is not our ally, no matter what they tell you.

Re:Can't Have It Two Ways

[h4rm0ny]

Well that was fascinating. Extracted the text from both PDFs and ran diff on the resulting text files. The big thing that was removed seemed to be the following passage. Seems pretty unpleasant.

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.

There are other changes in there, though much smaller. I haven't gone through it exhaustively. The above seemed to be the big thing. Threats against the suspects family...

The only other thing that leapt out at me from a brief skim was the comment that they didn't believe a polygraph would be useful because "if he was a member of Al Quaeda, he could pass it." I find that comment fascinating, too.

Re:They Should Have

[jjohnson]

You fucking moron.

Higazy wasn't a bad guy--he was completely innocent. He had nothing to do with 9/11 or terrorism. The coerced confession wasn't just legally problematic, it actually sent a completely innocent man to jail. If he hadn't been lucky enough for the pilot who owned the radio to show up and say "hey, that's mine", he'd be in jail today.

The baby Jesus weeps for humanity when slobberers like you open your mouth.

Re:Here are the two opinions.

[Anonymous Coward]

Oops ... should have taken a closer look at the preview and used the code-posting option.

diff -bBd original.txt redacted.txt
6c6
< Higazy v. Millenium Hotel
---
> Higazy v. Millenium Hotel and Resorts
11c11
< (Argued: June 23, 2006 Decided: October 18, 2007)
---
> (Argued: June 23, 2006 Decided: October 19, 2007)
31c31
< Before: JACOBS Chief Judge, POOLER, Circuit Judges, KOELTL, District Judge.2
---
> Before: JACOBS, Chief Judge, POOLER, Circuit Judges, KOELTL, District Judge.2
41c41
< AFFIRMED in part, REVERSED in part, and REMANDED.
---
> AFFIRMED in part, VACATED in part, and REMANDED.
69,70c69
< we affirm in part, reverse in part, and remand the case to the district court for further
< proceedings.
---
> we affirm in part, vacate in part, and remand the case to the district court for further proceedings.
165,170c164,167
< 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 alleges that during the polygraph, Templeton told him that he should cooperate . .
> . .
> This opinion has been redacted because portions of the record are under seal. For the purposes of
> the summary judgment motion, Templeton did not contest that Higazy's statements were coerced.
172,192d168
< 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.
199d174
< 9
215a191
> 9
222d197
< 10
239,246d213
< 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 hav

Re:Even-handed coverage...

[DeepHurtn!]

Soldiers have the responsibility to disobey illegal orders. "Just following orders" is no defense, according to Nuremberg. Those who believe that it is deserve the legal consequences and public scorn their actions merit.

Not classified, redacted.

[arbitraryaardvark]

There's no issue here about the info being classified.
What the story is about is that the court issued an opinion, then withdrew it, and issues a redacted opinion. Probably what happened is that the the court had inadvertently included info that was under seal by the district court.
One possible explanation for the redaction is to protect the guy's family in Egypt.
Another, maybe more likely, explanation was to avoid embarrassment to the FBI.
The story was broken by blogger Howard Bashman of How Appealing, who refused to take down the unredacted version after a call from the court asking him to take it down.
http://patterico.com/2007/10/21/was-a-passage-omitted-from-a-recent-second-circuit-opinion-for-security-reasons-or-to-cover-up-material-embarrassing-to-the-fbi/ [patterico.com]
http://howappealing.law.com/102007.html#029139 [law.com]

Above post is insightful and informative.

Re:Even-handed coverage...

[megaditto]

Name the last enemy we've fought against that *didn't* torture [military detainees]

Russia. Cuba. Iran.

Do you recall those British sailors captured and released by Iran about a year ago? They did show their faces on TV (which is illegal) but I don't recall anybody being tortured there either.

Re:Even-handed coverage...

[GaryPatterson]

You're missing the point though. Why torture someone? If it's to get a confession at all costs, then you're likely to let the real perpetrators of actions like Sep-11 get away scot free because you're focusing on some bozo who puts his hand up mostly because he doesn't want his family tortured. Shouldn't the focus be on finding the guilty instead of manufacturing them through forced confessions?

Torture is a hopeless means of extracting intelligence, and anything gained must be checked and verified independantly, which raises the question of why bother with the torture if you have to get the information through another, more trustworthy means anyway.

Lastly, the justification that "they do it to us" isn't good enough to throw away your nation's proud history of upholding rights and setting the benchmark for the rest of the world.

I look forward to seeing the USA as an ally and friend again, instead of the worrying nation it has become.

Re:Even-handed coverage...

[jamstar7]

Lt Rusty Calley followed an order given to him at My Lai by Captain Medina.

Medina was never prosecuted. Neither were the members of the chain of command that gave Medina the order to give to Calley.

So you don't have to search

[Anonymous Coward]

I am posting this as AC for obvious reasons. I made it easy for you to find the differences between the two pdf's. Btw, it seems they did a find and replace for the word reverse and they replaced it with vacate in the edited document. Here is the edited out portion of the document:

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.