FEAR OF LAWYERS:
The Cautionary Tale Of A Post-september 11 Detainee

By JOANNE MARINER

Monday, Aug. 19, 2002

Not only is the Bush administration currently holding several hundred people as alleged "enemy combatants" in indefinite detention without charges, it is also denying them access to counsel. Even Jose Padilla and Yaser Hamdi, the two American citizens held on U.S. territory, have no access to a lawyer.

What are the consequences of the government's fear of lawyers? The case of Abdallah Higazy, a post-September 11 detainee held on a material witness warrant, provides a cautionary tale. It suggests that the desired atmosphere for interrogations is one of intimidation rather than trust, and that the denial of legal counsel may result in injustice rather than the collection of accurate information.

In fact, according to court documents made public last week, the federal judge overseeing the Higazy case has ordered prosecutors to investigate the FBI's conduct of the investigation.

Immigration and Material Witness Detainees

Because of the strict rules of secrecy imposed by the government, the public has no way of assessing the government's claims that the denial of legal counsel is a necessary and valuable aspect of its interrogation of persons held as enemy combatants. Asserting national security justifications, the government has cut these detainees off from nearly all contact with the outside world.

But another large group of post-September 11 detainees is not quite as isolated as the detainees in military custody. This group includes people whom the government has held on immigration charges and material witness warrants, while it questions them regarding their information about or connections to terrorist activity.

Although the exact number of these detainees is unknown, as many as 1,200 non-citizens may have undergone such detention at one point or another. The vast majority of these people have been held under the country's immigration laws - for offenses such as overstaying their visa - but a few others have been detained as material witnesses to grand jury investigations.

Arresting persons of interest to the September 11 investigation on immigration and material witness grounds enables the Department of Justice to keep them jailed while it interrogates them about possible terrorist activities. In essence, these people are being held in preventive detention for investigative purposes, a status not generally contemplated under U.S. criminal law.

(In the USA PATRIOT Act, passed in the wake of the September 11 attacks, Congress granted the Department of Justice the power to detain certified suspected terrorists for seven days without charge. At the end of the seven-day period, the attorney general must charge the suspect with a crime, initiate deportation procedures, or allow his or her release. In April of this year, six months after the PATRIOT Act was passed, the Department of Justice stated that it had not certified any non-citizen as a terrorism suspect under the act. Why would it bother to, when it has found so many easier ways to accomplish the same task?)

Like detainees held as enemy combatants, many of these people, too, have been held in solitary confinement and subjected to extraordinary security measures. Many of them have seen their access to legal counsel hindered or denied. Judging from such measures, it seems that the government is trying to establish the same atmosphere in these detainees' interrogations as it has with the military detainees.

Although there are already several cautionary tales arising out of the detention of persons on immigration and material witness grounds, the case of Abdallah Higazy is the most striking.

Higazy, a thirty-year-old Egyptian graduate student with a valid visa, was detained as a material witness on December 17, 2001. His detention was ordered after a security guard at the Millenium Hilton Hotel, located just across the street from the site of the World Trade Center, claimed to have found an aviation radio in the room where Higazy had stayed on September 11.

Higazy was placed in solitary confinement at the Metropolitan Correctional Center in Manhattan. He repeatedly protested his innocence and volunteered to take a polygraph test. As he later explained to Human Rights Watch: "I wanted to show I was telling the truth."

On December 27, Higazy was taken to an office in Manhattan and a polygraph test was administered. He was questioned for four to five hours without a break. During that time, he was given nothing to eat or drink. His lawyer, who was not allowed to be present during the questioning, waited outside.

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. During the polygraph test he was asked about the September 11 attacks. After hearing each of Higazy's answers, the agent repeated, "Tell me the truth," making Higazy increasingly anxious.

Higazy told Human Rights Watch that when the agent told Higazy about what the radio device allegedly found in his room could do, he became nervous and almost fainted. At that point, he asked the agent to stop the polygraph test and take the cables off him.

Higazy's "Confession"

Even though no counsel was present, and the polygraph test was over, the FBI agent continued the interrogation. According to Higazy, the following dialogue occurred: "The results of the test are inconclusive," the agent said, "but this never happened to anyone who said the truth . . . . We can show ties between you and September 11. You are smart, you are an engineer, a pilot's radio was found in your room; it doesn't take a genius to figure it out."

Higazy later told Human Rights Watch: "I thought I was in trouble, that I had lost the only chance to prove I was innocent." Under the pressure of the FBI agent's questioning, Higazy ultimately admitted the radio was his. The FBI agent later claimed that Higazy gave three different explanations for where he found the radio. "All I wanted to do is to keep away from September 11 and to keep my family away from them," Higazy later explained.

Higazy offered to take a polygraph test again but requested that his lawyer be present. According to Higazy, the FBI refused, claiming that the attorney would be a disruption. Because Higazy refused to take the test without his lawyer, no further testing was done.

On January 11 of this year, Higazy was charged with lying to the FBI for initially denying possession of the radio. Yet the case took a dramatic turn when, immediately afterwards, the true owner of the radio, an American pilot, went to the hotel to claim it.

Based on these developments, the government promptly dismissed the charge against Higazy, who was released in his cotton prison scrubs and given three dollars for subway fare. (A few months later, the former hotel security guard who originally produced the pilot's radio was convicted of lying to the FBI.)

Judicial Oversight

According to court documents released last week, the federal judge who had authorized Higazy's detention as a material witness called a telephonic conference with prosecutors and Higazy's counsel as soon as he learned of Higazy's release. The judge, Jed S. Rakoff, feared the government might have made material misrepresentations when it had previously informed the court that Higazy had confessed to possessing the radio.

At oral argument on the case in March 2002, Higazy's counsel did not deny that Higazy had admitted to owning the radio, but claimed that the circumstances under which the "confession" were made were inherently suspicious and required factual inquiry by the court. Higazy's counsel claimed, in particular, that the admissions were made only after the FBI agent had threatened the safety of Higazy's family, an allegation that the government denied.

The government claimed that it was conducting its own internal investigation of the matter, which it would forward to the court. Because of the government's promise, the court deferred ruling on whether it should hold an evidentiary hearing on the alleged misconduct.

In August, with the investigation still not having produced results, the court issued an ordered directing the government to complete its investigation and report the results by October 31. The basis for the order was the court's general supervisory power over the judicial process.

The Government's Justification for Barring Access to Counsel

In papers filed in the case of Hamdi v. Rumsfeld, involving a U.S. citizen held in a Naval brig in Virginia, the government has set out its reasons for barring detainees' access to lawyers. Claiming that permitting access to counsel would "threaten the national security," the government contends it would "directly interfere with - and likely thwart - ongoing efforts of the United States military to gather and evaluate intelligence about the enemy, its assets, and its plans, and its supporters."

Access to counsel would, in this view, "disrupt" the interrogation environment, which has to be tightly controlled "to create dependency and trust by the detainee with his interrogator."

The government also claims that access to counsel "may enable detained enemy combatants to pass concealed messages to the enemy about military detention facilities, the security at such facilities, or other military operations."

Because no independent oversight has yet been allowed, it is impossible to know exactly how the government is establishing an atmosphere of "dependency and trust" with these detainees. But the Higazy precedent - suggesting that the government opposes the presence of counsel in order to threaten and intimidate its captives - is certainly a troubling one.

How Will the Courts Rule?

The cases of Yaser Hamdi and Jose Padilla, both of which raise the access to counsel issue, will take some time to wind their way through the courts. Yet at some point in the future, the Supreme Court will almost inevitably be called upon to rule on the issue.

It would be premature to predict how the Court will rule on this important question. It is worth noting, however, some worrisome indicators in the Court's recent case law on the right to counsel. The majority opinions in both the 2001 case of Texas v. Cobb and the 1991 case of McNeil v. Wisconsin seemed to assume that defense lawyers tend to obstruct, rather than promote, justice.

· Who Decides Whether Yaser Hamdi, Or Any Other Citizen, Is An Enemy Combatant?
· Do Hamdi And Padilla Need Company?

As Justice Stevens noted in his dissent in McNeil, "As a symbolic matter, today's decision is ominous because it reflects a preference for an inquisitorial system that regards the defense lawyer as an impediment rather than a servant to the cause of justice."

A "Troubling" Precedent

One only wonders how many other instances there are.


Joanne Mariner, a FindLaw columnist is deputy director of the Americas division of Human Rights Watch.. The present piece is based on a just-released Human Rights Watch report: "Presumption of Guilt: Human Rights Abuses of Post-September 11 Detainees."

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