Sept. 11 coerced confession violates the Constitution

In one of the most interesting cases decided by the Second Circuit in quite some time, the Court of Appeals ruled on October 18 that a man could sue a Federal agent for coercing a confession about his involvement in the September 11 attacks. Update: adding further intrigue to this case, the opinion in this case was withdrawn about two hours after the Court of Appeals posted it on its website. No explanation given. The link to the decision below is now dead.

The case is Higazy v. Millenium Hotel and Resorts. Higazy is an Egyptian citizen who was studying in New York City on the morning of September 11, 2001. The hotel he was staying in was evacuated right after the attacks, and a month later, hotel personnel found a suspicious airplane radio in Higazy's hotel room safe. The radio was an air-band transceiver capable of air-to-air and air-to-ground communication. This raised suspicions about Higazy and whether he was communicating with the hijackers and had something to do with the attacks. When FBI agents informally questioned Higazy, he had no idea what they were talking about and proclaimed his innocence. No matter. Higazy was held as a material witness and kept in custody.

When the FBI interrogated Higazy, defendant Templeton (an FBI agent) ridiculed him and called him a liar. According to the Court of Appeals,

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 ead 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.”

So Higazy "confessed" to owning the radio to save his family from the brutal Egyptian government which he compared to Saddam Hussein's torure regime in Iraq. He therefore concocted an inconsistent story about how he obtained the radio. Higazy was next charged with engaging in criminal activity.

What happened next was even more bizarre. An airline pilot next returned to the hotel to reclaim his property. "After inspecting his items, the pilot informed the hotel staff that his transceiver was missing." The radio which authorites thought belonged to Higazy actually belonged to the pilot, who had had no interaction with Higazy. After being charged with the crime of the century, Higazy was innocent! He was freed and next brought a lawsuit against the interrogator, claiming constitutional violations relating to the coerced confession.

The Court of Appeals agreed that Higazy has a claim under the Constitution for the coerced confession and that Templeton is not entitled to qualified immunity. Reviewing the law of coerced confessions, the Second Circuit untangled Supreme Court precedent in finding that the confession could predicate a civil lawsuit because it was obtained in connection with a criminal case, in particular, a bail hearing on January 11, 2002. While government defendants are entitled to qualified immunity (and can't be sued) if the law was unclear at the time of the incident, the Court of Appeals reasoned, "On January 11, 2002, it was clearly established that the FBI could not coerce a confession and later use that confession in a criminal case, including in a proceeding before a judge after criminal charges had been filed, to impose the penalty of continued detention. The government argues that there was conflicting Supreme Court law as to whether a Fifth Amendment right against self-incrimination was only a trial right, or extended more broadly. We disagree."

Wrapping up, the Second Circuit also rejected Templeton's other qualified immunity argument that it was objectively reasonable for him to act as he did under the circumstances. "When the facts are cast in the light most favorable to Higazy, an officer in Templeton’s shoes would have understood that the confession he allegedly coerced from Higazy would have been used in a criminal case against Higazy and that his actions therefore violated Higazy’s constitutional right to be free from compelled self-incrimination." While Judge Jacobs concurred in the result and took issue with the majority's analysis, he acknowledge the case raised "oddball facts."