By Jared Chausow
By Katie Toth
By Elizabeth Flock
By Albert Samaha
By Anna Merlan
By Jon Campbell
By Jon Campbell
By Albert Samaha
Higazy's wrongful captivity had many bizarre moments, but the specter of possible FBI coercion in obtaining his false confession has overshadowed all. In fact, federal judge Jed Rakoff recently ordered a probe of the polygraphing. Yet a careful review of records unsealed by the judgeover vehement opposition from U.S. Attorney James Comey's officeshows the case was flawed from the beginning by investigative carelessness and assumption, problems never before fully revealed.
It all began when the FBI took a security guard's tall tale and ran with it.
Higazy, a 30-year-old Egyptian, flew to New York late last August and checked into room 5101 of the Millenium Hilton Hotel, across the street from the trade center. On September 11, he evacuated the hotel like everyone else. The Hilton told Higazy he could come back for his things on December 17. When he did, FBI agents were waiting for him.
Hotel security guard Ronald Ferry had reported finding an aviation radio in Higazy's room. Higazy denied it was his, but the locked-safe detail was damning. He was questioned for hours and then detained as a material witness in solitary confinement.
Nine days passed. Higazy pleaded through his attorney, Robert Dunn, to take a polygraph test to prove his innocence. The FBI agreed and gave him one while, per procedure, Dunn waited outside. The polygrapher emerged mid-test and declared, as Dunn wrote the court, "Well, I don't have a polygraph test, but I do have a confession." Higazy was promptly charged with lying to investigators about not having the radio. He stayed in solitary.
Then on January 14, a man reported to be a private pilot from Ohio who had stayed in room 5012, a floor beneath Higazy, showed up to collect his things. His handheld aviation radio was missing, he said. The FBI reinterviewed Ferry and discovered he had lied. Two days later, Higazy was released.
Given the outcome, the government papers making the case against Higazy are almost comical to read. But disturbingly, they also indicate thateven accounting for the convenience of hindsightthe truth never lay that far out of investigators' grasp.
Besides "seemingly inexplicably" denying ownership of the radio, as the government put it, Higazy had a verifiable explanation for everything suspicious about him. He was in town on a U.S.-sponsored graduate scholarship, a fact the Washington, D.C., program office confirmed. Like many new arrivals to New York, he had yet to find housing, so the program arranged for him to stay at the hotel. He had served in the Egyptian air force but was familiar only with radio devices the size of two rooms, not of the handheld variety Ferry had found, his lawyer said.
While Higazy checked out, the star of the government's case, it turns out, wouldn't have. Certainly Ferry gave a quite convincing account: He had found the radio locked inside Higazy's safe along with a Koran and Higazy's Egyptian passport. And, the U.S. attorney stated, "[Ferry] was not someone of dubious credibility, but a hotel security officer and a retired law enforcement officer."
But Ferry had in fact left the Newark police force because of drug problems. Evidently, the FBI never uncovered this detail on its own; Ferry disclosed it himself after he eventually pled guilty to lying. And one eyebrow-raiser did not emerge until the Voice called the Newark police department last week: Ferry did not retire, but was fired on May 23, 1990. Internal Affairs wouldn't give details to the press, but the FBI presumably would have had better luck.
The government's entire case hinged on Ferry's report and how it indicated that Higazy kept lying. But agents never made Ferry sign an affidavit swearing to his discovery. Instead, they paraphrased his verbal account in numerous court filings.
Two months after the radio's actual owner came forward, the U.S. attorney's office told Judge Rakoff, "The moment we had an inkling that there was weakness to the case we reviewed it immediately. We took steps to investigate it very aggressively."
Why had those aggressive steps not been taken before? It was commonly known that the damaged hotel had seen plenty of unmonitored traffic after September 11; news accounts even told of a looter who disguised himself as a cop and stole guests' credit cards and room keys. The confusion seemed to warrant a careful investigation, especially given the serious nature of the allegations being made. The feds questioned Higazy for as many as seven hours the first day, according to Dunn, but documents indicate their thoroughness did not extend to Ferry or anyone else.
Ferry's lawyers said he lied in order to help the greater causenailing a probable terrorist. Everything else about Higazy looked very bad, and Ferry believed he was simply clinching the government's case against a dangerous man. Documents show that the feds may have failed to see through Ferry's slanted reasoning because they were blinded by similar assumptions themselves.
In a February 4 letter to Judge Rakoff, the U.S. Attorney's office explained, "Nor was there anything implausible about the information [Ferry] provided. In fact, given what the Government knew on December 18, the information seemed more than merely plausible. . . . [I]t knew that, on September 11, Mr. Higazy was staying at a hotel next to the WTC, on the 51st floor, in a room with a view of the WTC . . . it knew that one of his duties in the Egyptian Air Corps was to repair aviation radios . . . it knew that a number of the September 11 hijackers were Egyptian nationals; and it knew that Mr. Higazy is an Egyptian national."
Prosecutors at the time said the Higazy case could play "a potentially quite significant part" in solving "the most serious crime in the nation's history."
Dunn argued in a March 18 hearing before Rakoff on possible government misrepresentations to the court, "When the item was alleged to be found in the safe of a person who was from a Middle Eastern country . . . [i]t was automatically perceived to be of such great moment that he was determined to be held a material witness regardless . . . of anything else."
Ferry's non-jury guilty plea was supposed to be the neat end to an embarrassing official mess. Indeed, in his August 5 decision, Rakoff said Ferry's punishment had "effectively obviated" the need for a court-ordered probe into the radio matter, a move the judge had previously considered.
But a close look at Ferry's sentencing shows that it was far from neat. Ferry insistedto no contradiction from prosecutorsthat he lied only about the locked safe and that a second person had actually found the radio on a table in Higazy's room. Many months later, there is no explanation of how or whether the radio got there.
Ferry received a relatively mild sentence of six months in weekend detention. Prosecutors did not demand more than the federally recommended time, although the same office won more than triple the maximum in another case of September 11-themed false accusationin which the victim never spent a moment in prison. No one else has been charged in the Higazy case, even though numerous documents indicate more people were involved. Comey's office would not comment on apparent loose ends, saying its efforts were ongoing.
It was dumb luck, not good police work, that freed Higazy. But the two FBI agents named in papers making the botched case against him are likely still investigating the September 11 attacks. The FBI's New York office would not comment on personnel questions, but a knowledgeable law enforcement source says neither of the agentsChristopher Bruno and Vince Sullivanwas ever disciplined or retrained.
The lessons not learned from the Higazy case are troubling given the detention of hundreds of immigrants and some citizens based on suspected connections with terrorism or terrorist-harboring nations. Some no doubt looked suspicious enough to the neighbors, colleagues, or cops who reported them, as Higazy once looked to Ferry and the FBI.
In fact, had that Ohio pilot not come along, Higazy's lawyer says, the Egyptian might still be in prison. Nothing in the records indicates the government ever presumed him innocent or worked hard to establish his guilt beyond a doubt.