International human rights law186and U.S. constitutional guarantees187 protect persons against coercive interrogations. Within these limitations, law enforcement officials can use a wide variety of questioning methods. Our research suggests thatalmost all material witnesses have experienced aggressive interrogations more commonly faced by criminal suspects. Even where the interrogation methods themselves have not violated human rights and constitutional standards, the absence of legal safeguards normally available to criminal suspects has placed the material witnesses in situations equivalent to unlawful coercion.
In many cases, the trauma of forceful, prolonged questioning has been heightened by the absence of counsel and the witnesses lack of information as to why they were arrested or what they were accused of doing. The governments willingness to badger and grill the witnesses has reflected its view they were not mere witnesses, but men with suspicious ties to alleged terrorists, maybe conspirators or terrorists themselves.
In one case, the interrogation was so fierce and threatening it led to a false confession. As described above, the government arrested Abdallah Higazy as a witness in December 2001after agents were informed that hotel staff had found an air-to-land transceiver (which turned out to have been planted in his room by a security guard) in the hotel room where he was staying during the time of the September 11 attacks, near the World Trade Center. The government alleged that he was connected to the September 11 attacks and could have been communicating with the hijackers. Upon his arrest, and later in court, Higazy denied the radio was his or that he was involved in the attacks. Higazy told HRW/ACLU: It was horrible, horrible. I always have the feeling of being accused of something I didnt do. I was crying each and every day five to seven times.188
In court proceedings, the government was, according to his lawyer, hellbent to prove that the transceiver belonged to Higazy.189 Higazy immediately insisted on taking a polygraph because I wanted to show I was telling the truth.190 His lawyer, Robert Dunn, cautioned him not to take the polygraph, but Higazy, who had by then spent days in solitary confinement, desperately wanted to prove his innocence and get out of jail.191
On December 27, 2001, federal agents took Higazy to an office in Manhattan purportedly for his polygraph exam. FBI agents would not let Dunn in the polygraph room as a matter of routine procedure, but they allowed him to sit outside. The polygraph exam lasted for a few minutes but then turned into a full-blown interrogation that lasted more than four hours without a break.192 Before the test, FBI agent Michael Templeton, who was conducting the polygraph, told Higazy: We will make the Egyptian authorities give your family hell if you dont cooperate. During the polygraph, Agent Templeton asked Higazy about his knowledge of the September 11 attacks. After each of Higazys denials, the agent told Higazy: Tell me the truth. When the agent started telling him about what the radio device could do and how it was connected to the attacks, Higazy became nervous and almost fainted. He asked to stop the polygraph test and take the cables off him. The agent did so and told him, This never happened to anyone who said the truth.193
Higazy told HRW/ACLU that at this point he thought he was in trouble and had lost the only chance to prove I was innocent. He said he insisted, Its not my device, I dont know who put it there. He said Agent Templeton told him, We can show ties between you and September 11. You are a terrorist.194 Higazy said the agent also again threatened his family: He said it like this: If you do not cooperate, the FBI will make your brother upstate live [under constant] scrutiny. And we'll make sure Egyptian security gives your family hell. That's exactly how he said it.195
During the interrogation, Higazy became so nervous that he started to hyperventilate, causing the agent to seek medical attention. When Agent Templeton came out of the room to get an agent trained as an Emergency Medical Technician, he did not tell Dunn what transpired. After four hours, Higazy confessed to owning the transceiver: All I wanted to do is to keep away from September 11 and to keep my family away from them. After obtaining the confession, Agent Templeton then came out and told Dunn that Higazy had confessed. His lawyer, who was shocked at this development, recounted:
Apparently Higazy was so stressed out by the questions he couldnt breathe He had his head between his legs. After four hours, it finally finished. The agent came out and said we dont have a polygraph, but we have a confession and he wants you in. I asked him what happened. He was not coherent, he couldnt even hear me. He was ashen and his eyes were bugged out. He kept saying he couldnt remember what he said during the exam, but I know nothing about the radio. He said that they threatened his family. The agent told him that hes a terrorist, I believe that you are a terrorist.196
The government subsequently charged Higazy with perjury for his earlier denials of owning the transceiver.
In January 2002, another hotel guest went to the hotel to claim his belongings and reported his radio-air transceiver stolen. After the guest claimed as his own the transceiver attributed to Higazy, the government dismissed the material witness warrant and criminal charges against Higazy. Concerned about how the government secured a false confession from Higazy, a federal court has ordered an investigation into the Justice Departments conduct in his case.
Other material witnesses reported that FBI agents threatened them with extended jail time for unnamed criminal charges. Agents, for example, told Mohdar Abdullah, Osama Awadallah, and Mujahid Menepta that each would be locked up for a long time. Abdullah described his first FBI interrogation after his arrest: [The agent] told me, Youre going to be in jail for about five years. Youre going to New York and will be in jail for five years. I was scared and angry. What the hell did I do?197 Threats of harsh criminal charges and lengthy prison sentences were consistent with the governments belief that many of the witnesses were in fact suspects.
In another case, various federal officials threatened Osama Awadallah after his arrest as a material witness in the September 11 investigation. The district court reviewing his case described the situation:
After Agent Falcon finished administering the polygraph, he encouraged Awadallah to tell the truth about his supposed connection to the September 11th attacks by threatening to send him to prison for five years for lying. Agents Teixeira and Godshall then accused him of being one of the September 11th terrorists and told him to sit down and not move. The agents threatened to fly him to New York and detain him for one year in order to find out more about him.198
International human rights law prohibits law enforcement officials from conducting coercive interrogations. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987 (ratified by the U.S. in 1994), available online at: http://www1.umn.edu/humanrts/instree/h2catoc.htm, accessed on June 17, 2005. CAT prohibits torture and other mistreatment under all circumstances, and includes any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession. Ibid., article 1. Torture and other cruel, inhuman or degrading treatment are also prohibited under article 7 of the ICCPR. Principle 21 of the U.N. Body of Principles states: "No detained person while being interrogated shall be subject to violence, threats or methods of interrogation which impair his capacity of decision or his judgment."
The U.S. Supreme Court has repeatedly upheld the rights of individuals not to be subjected to coercive interrogations. In Haley v. Ohio, Justice Frankfurter stated in a concurring opinion: An impressive series of cases in this and other courts admonishes of the temptations to abuse of police endeavors to secure confessions from suspects, through protracted questioning, carried on in secrecy, with the inevitable disquietude and fears police interrogations naturally engender in individuals questioned while held incommunicado, without the aid of counsel and unprotected by the safeguards of a judicial inquiry. Haley v. Ohio, 332 U.S. 596, 605 (1948) (Frankfurter, J. concurring). In Stone v. Powell, Justice Burger opined that: "A confession produced after intimidating or coercive interrogation is inherently dubious. If a suspect's will has been overborne, a cloud hangs over his custodial admissions; the exclusion of such statements is based essentially on their lack of reliability." Stone v. Powell. 428 U.S. 465, 496 (Burger, J. concurring).
Human Rights Watch telephone interview with Abdallah Higazy, New York, New York, February 1, 2002 (Interview with Abdallah Higazy).
Interview with Robert Dunn, May 18, 2004.
Interview with Abdallah Higazy;Human Rights Watch telephone interview with Robert Dunn, attorney for Abdallah Higazy, New York, New York, July 23, 2002 (Interview with Robert Dunn, July 23, 2002).
Interview with Robert Dunn, May 18, 2004.
Interview with Abdallah Higazy; Interview with Robert Dunn, July 23, 2002.
A True Confession? Interview with Morely Safer, 60 Minutes, February 29, 2004.
Interview with Robert Dunn, May 18, 2004.
Interview with Mohdar Abdullah.
United States v. Awadallah, 202 F. Supp. 2d 82, 107 (S.D.N.Y. 2002), overturned on other grounds by United States v. Awadallah, 349 F.3d 42, 53 (2d Cir. 2003).