Unqualified Offerings

More on the Higazy case, the storm-petrel of everything since.

Joanne Mariner on Findlaw. The article dates from August 2002. At that point the judge told the FBI to stop dragging out its internal investigation and report results by Halloween of that year. Your nut graph:

Higazy claimed that the FBI agent conducting the interrogation threatened him. “We will make the Egyptian authorities give your family hell if you don’t cooperate,” he recalled the agent saying.

Chisun Lee in the Village Voice on September 3, 2002. Lots of details about the chief witness against Higazy, “not someone of dubious credibility,” the US attorney stated, “but a hotel security officer and a retired law enforcement officer.” Except!

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.

Likely Ferry figured his big tip was a chance to get back into law enforcement. Instead it got him convicted. A figure recently in the news makes an appearance too:

Yet a careful review of records unsealed by the judge—over vehement opposition from U.S. Attorney James Comey’s office . . .

Bob Herbert reviewed the denouement in August 2006 . . .

Mr. Higazy filed a lawsuit against Mr. Templeton, claiming he had illegally coerced his confession. But an in-house investigation by the F.B.I. found there was no evidence of wrongdoing, and a federal judge — while acknowledging that the confession had been coerced — threw out the suit.

I’ll bet if, like the FBI, Mr. Higazy had been able to investigate himself, he never would have spent 30 days in gen pop . . .

Everything wrong with terror-suspect detentions as they’ve developed since September 2001 can be seen in the Higazy case, along with one thing absent from much of the rest: a happy ending. It was Higazy’s great good fortune to be taken on American soil by civilian investigators operating under settled law, subject to independent review by a judge with genuine defense from a real lawyer available to the suspect. It made Higazy’s case just visible enough that, when by sheer luck the aviation radio’s real owner appeared, Higazy got out. It’s important to note that if the man hadn’t shown up, Higazy would probably have been in detention long enough for someone to get around to putting an “enemy combatant” tag on him. Then even the lucky features of his case would not have helped him. The lawyer would be kicked out, the judge ignored and Higazy shifted from the care of skeevy FBI agents to SERE-happy military interrogators. Higazy would have been shut away and tortured. Anything he denied would be proof he hadn’t broken. Anything he confessed, proof of his guilt. If the government decided later that it wanted the publicity value of a trial, Higazy would by then be far too addled to mount much of a defense.

It’s important to note that the circumstantial evidence against Higazy was good. He was worth investigating. He was Egyptian, as were several of the hijackers, staying near the hijackers’ targets, high above the ground. He had served in the Egyptian air force and knew aviation radios. (Not portable ones it developed later.) A seemingly credible witness put a potential signalling device in his hotel room. It would be a dereliction of duty not to check such a man out thoroughly.

And he was innocent. Everything I’ve read about Gitmo and Abu Ghraib and Bagram indicates that very few of their guests were picked up in remotely as damning circumstances as Higazy. But the government has decided to subject them to procedures with basically no chance of uncovering investigative error. The timing is important too: they had the Higazy case itself to learn from by the time they got around to setting up their system. They chose to ignore it.