The Truth Puts You in Jail

By BOB HERBERT

The problem with the way the United States government dealt with Abdallah Higazy had nothing to do with the fact that he was investigated as a possible participant in the Sept. 11 attack on the World Trade Center.

He was caught in a set of circumstances that was highly suspicious, to say the least. It would have been criminal not to have investigated him.

On the morning of the attack, Mr. Higazy, the son of a former Egyptian diplomat, was in his room on the 51st floor of the Millenium Hilton Hotel, which was across the street from the twin towers. He fled the hotel, along with all the other guests, after the attack. But a Hilton security guard said he found an aviation radio, which could be used to communicate with airborne pilots, in the safe in Mr. Higazy’s room.

When Mr. Higazy returned to the hotel three months later to pick up his belongings, he was arrested by the F.B.I. as a material witness and thrown into solitary confinement. Federal investigators were understandably suspicious, but they had no evidence at all that Mr. Higazy was involved in the terror attack.

And that’s where the government went wrong. In the United States, a free and open society committed to the rule of law, you are not supposed to lock people up — deprive them of their liberty — on mere suspicion.

The government could not link Mr. Higazy to the attack, and yet there he was, trembling in a jail cell, with no reasonable chance of proving that he was innocent.

This was cruel. It was unusual. And it was a blatant abuse of the material witness statute. People arrested as material witnesses are supposed to be just that — witnesses — not criminal suspects. (The witnesses are taken into custody when there is some doubt as to whether their testimony can otherwise be secured.)

When a person is actually arrested for a crime, the government has certain important obligations, including the obligation to provide a prompt arraignment and to demonstrate that there is probable cause that the suspect had committed the offense.

Mr. Higazy was held as a material witness while investigators searched for something to pin on him.

Court records show that eventually Mr. Higazy was coerced into saying that the radio was his by an F.B.I. agent who knew that if he didn’t elicit some kind of admission from the suspect, a judge would most likely set him free. Mr. Higazy said the agent made threats regarding his relatives back in Cairo, saying they would be put at the mercy of Egyptian security, which has a reputation for engaging in torture.

Mr. Higazy’s admission was not truthful, but that didn’t matter. The feds were happy to finally be able to accuse him of a crime. They charged him with lying to federal agents when he said the radio wasn’t his.

The case against Mr. Higazy fell completely apart when a pilot, an American, walked serendipitously into the Millenium Hilton, looking for the aviation radio he had left behind on Sept. 11. (It also turned out that the security guard had lied.) Mr. Higazy’s original story, which he had clung to as long as he felt he could, had been truthful. He was set free.

It’s scary to think about what might have happened to Mr. Higazy if the pilot hadn’t shown up to claim his radio.

What the government ignored in Mr. Higazy’s case and in so many other cases linked to the so-called war on terror, is that when it comes to throwing people in jail, a hunch is not enough. As Jonathan Abady, a lawyer for Mr. Higazy, said:

“The criminal justice system recognizes that before you deprive somebody of liberty in any significant way, you have to have some quantum of proof that they committed a crime, and the government didn’t have it in this case. What they had was a suspicion.”

Once we had voodoo economics. Now, in the age of terror, we have voodoo law enforcement. Mr. Higazy’s case is far from the most egregious. People have disappeared. People have been sent off to foreign lands to be tortured. People have been condemned to secret dungeons run by the C.I.A. People have been put away at Guantánamo Bay, Cuba, with no hope of being allowed to prove their innocence.

For five years now Americans have been chasing ghosts and shadows, and demanding that they confess to terrorizing us. Who’s terrorizing whom here?

We need to ask ourselves: Do we want a just society? Or are we willing to trade that revolutionary idea for a repressive government that gives us nothing more than the illusion of safety?