Witness to Abuse - Human Rights Watch

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Abdallah Higazy The government arrested Abdallah Higazy as a material witness in December 2001 because it believed it had evidence suggesting his involvement with the September 11 attacks. Higazy, an Egyptian graduate student, was in the United States on a grant from the U.S. Agency for International Development (USAID) to pursue graduate studies at Brooklyn Polytechnic. 68 On the recommendation of USAID, during his orientation he stayed in the Millennium Hotel in New York City, located near the World Trade Center. He happened to be there on September 11, 2001, while waiting for his permanent housing. Following the attacks and evacuation of the hotel, a hotel security guard claimed (falsely it turned out) that he had found a pilot’s air-land radio in a safe in the room where Higazy had stayed. The Justice Department had received reports that the hijackers had received assistance from people in buildings close to the World Trade Center. In light of the radio purportedly found in Higazy’s room, Justice Department officials believed that Higazy might have sent transmissions to the hijackers who attacked the World Trade Center or received transmissions from them. 69 In essence, the government suspected Higazy was a terrorist conspirator, not a mere witness. A month later the real owner of the radio, an airline pilot, came forward to claim his radio from the hotel. It turned out the radio had been planted in Higazy’s room by a hotel security guard who was inventorying items hotel guests left in the hotel after they were evacuated on September 11; the guard found the transceiver in another room but claimed to have found it with Higazy’s belongings. 70 After detaining Higazy in solitary confinement for more than a month; obtaining a coerced, false confession from him in an interrogation without counsel; 71 and criminally charging him with making false statements to the FBI, the government released Higazy in January 2002, thirty-four days after his arrest. 68 Before coming to the United States, he had worked for a company under contract for USAID for two years and had been granted national security clearance. Donna Bryson, “Egyptian Student Found with Pilot Radio Had Worked for U.S. Government Contractor,” Associated Press Wire, Jan. 12, 2002. 69 HRW/ACLU interview with Robert Dunn, attorney for material witness Abdallah Higazy, New York, New York, May 18, 2004 (Interview with Robert Dunn, May 18, 2004). 70 On May 31, 2002, Ronald Ferry, the former hotel security guard who produced the pilot's radio was sentenced to six months of weekends in prison for lying to the FBI. He admitted that he knew that the device was not in a safe belonging to Higazy. Ferry, who is a former police officer, said that he lied during a "time of patriotism, and I'm very, very sorry." The judge said that his conduct was "wrongly motivated by prejudicial stereotypes, misguided patriotism or false heroism." “Presumption of Guilt,” p. 38-39. Higazy has since filed suit against Ferry and the FBI, asserting in part that that the FBI agents failed to thoroughly investigate the tip, press Ferry for a sworn statement, or subject him to a lie detector. 71 See Chapter VII, “Abusive Interrogations,” in this report for further information about Higazy’s false confession. HUMAN RIGHTS WATCH VOL. 17, NO. 2(G) 24
Jose Padilla On May 8, 2002, the Justice Department arrested U.S. citizen and Muslim convert Jose Padilla on a material witness warrant as he got off a commercial airliner at Chicago O’Hare International Airport after having traveled through Europe and the Middle East. Federal officials believed he had conferred with al-Qaeda leaders about plans to detonate a radiological “dirty bomb” within the United States. 72 One month later, after extensive court litigation, and just as a federal court was going to consider a motion to release Padilla, President Bush designated him as an enemy combatant. 73 Padilla was then transferred to a military brig in South Carolina, where he has been held ever since without charges or trial. 74 The information used to support the designation of Padilla as an enemy combatant was “essentially the same information which had been provided to the judge who issued the material witness warrant.” 75 The government believed that al-Qaeda members “directed Padilla to return to the United States to conduct reconnaissance and/or other attacks on behalf of Al Qaeda” and that he planned to “build and detonate a ‘radiological dispersal device’ … within the United States, possibly in D.C.” 76 Secretary Donald Rumsfeld described Padilla as “an individual who unquestionably was involved in terrorist activities against the United States.” 77 72 Declaration of Michael Mobbs, special advisor to the Under Secretary of Defense for Policy, United States. v. Padilla, August 27, 2002 (Declaration of Michael Mobbs). 73 Padilla v. Rumsfeld, 352 F.3d 695, 700 (2d Cir. 2003). 74 Rumsfeld v. Padilla, 124 S.Ct. 2711, 2716-17 (2004). 75 Petitioner’s Brief, Rumsfeld v. Padilla, No. 03-2235, p. 6 (2d. Cir. July 23, 2003). 76 “Declaration of Michael Mobbs,” p. 8-9. 77 “Remarks of Secretary of Defense Donald H. Rumsfeld,” June 11, 2002, Qatar, available online at: http://www.defense.gov/transcripts/2002/t06112002_t0611edq.html, accessed on March 31, 2005. The Justice Department also initially detained Ali Saleh Kalah al-Marri as a material witness before the President directed that he be detained as an enemy combatant. On December 12, 2001, FBI arrested Ali Saleh Kalah al-Marri in Peoria, Illinois pursuant to a material witness arrest warrant issued from the Southern District of New York. He was detained as a witness until January 28, 2002, when the Justice Department re-arrested him on criminal charges of fraudulent possession of credit cards. He was subsequently charged with making false statements to the FBI and other government agencies. Al-Marri v. Bush, 274 F. Supp. 2d 1003, 1004 (C.D. Ill. 2003). Counsel for al-Marri challenged his criminal charges on the grounds that the evidence for the charges was derived from unconstitutional interrogations and searches. “Exhibit 5,” Habeas Petition filed on behalf of Ali Saleh Kalah Al- Marri, copy on file at HRW/ACLU. Similar to Padilla’s case, when the court was scheduled to hear the challenges to his detention, the President ordered al-Marri detained as an enemy combatant. Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, Al-Marri v. Bush, CV No. 03-1220, p. 9 (C.D. Ill. Filed July 8, 2004), copy on file at HRW/ACLU. 25 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)
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Page 3 and 4: Summary After I got in the cell I w
Page 5 and 6: were almost all the witnesses Musli
Page 7 and 8: combination with having worked in t
Page 9 and 10: Recommendations The recommendations
Page 11 and 12: o requiring the government to infor
Page 13 and 14: eflects a compromise between an ind
Page 15 and 16: the witness for immigration or prob
Page 17 and 18: those suspected of committing a cri
Page 19 and 20: Arizona, and Florida, where the nin
Page 21 and 22: testimony—you get fingerprints, y
Page 23 and 24: The FBI appeared to believe that Ma
Page 25: interrogating him, without counsel,
Page 29 and 30: The Justice Department has often st
Page 31 and 32: criticism on the conduct of Assista
Page 33 and 34: government failed to take Diab’s
Page 35 and 36: Eric Sears, a former federal prosec
Page 37 and 38: sentencing. The judge finally got a
Page 39 and 40: accompanied by extensive searches c
Page 41 and 42: and young children. 121 He was deta
Page 43 and 44: High Security Conditions of Detenti
Page 45 and 46: Harassment and Abuse in Jail Many m
Page 47 and 48: uised. See id. In the elevator, the
Page 49 and 50: In practice, then, court approval o
Page 51 and 52: I kept asking what am I being charg
Page 53 and 54: As Mark Foster, the lawyer for one
Page 55 and 56: Federal marshals transferred the ei
Page 57 and 58: [T]he government filed all their pa
Page 59 and 60: Federal agents have also refused to
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Page 63 and 64: In January 2002, another hotel gues
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Page 71 and 72: providing interviews, submitting to
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Page 75 and 76: stayed with the FBI agents for eigh
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government, “I’m not coming.”
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armed forces for several years and
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Congress included the deposition re
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X. Haste, Incompetence, Prejudice:
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government’s basis was weak. Thes
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target, 272 the state police ordere
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Khan and Azmath were deported in Ja
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told them I told them I had no idea
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y subletting their apartment. Altho
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The post-scripts to the stories of
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I could not ask questions. What’s
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Ayub Ali Khan and Mohammad Azmath A
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get all these kinds of questions—
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Human Rights Watch and the American
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