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The attorney for Egyptian student Abdallah Higazy is claiming that the government conducted a biased and self-serving investigation into how Higazy came to be charged with lying to the FBI during the investigation into the World Trade Center attacks. In a letter to Southern District Judge Jed S. Rakoff in New York, the attorney, Robert S. Dunn, accused an FBI polygraph examiner of “improper and unethical” behavior when he extracted a confession in which Higazy admitted possessing a pilot’s radio in a hotel overlooking the Trade Center site on Sept. 11, 2001. Higazy was ultimately freed from custody, and a charge of lying to the FBI about possessing the radio was dropped after a hotel security guard admitted he lied about finding the radio in a safe in Higazy’s room. Dunn had urged Judge Rakoff to conduct an evidentiary hearing to determine how Higazy came to confess ownership of a radio he did not own. Instead Judge Rakoff, although troubled by the same question, deferred to U.S. Attorney James B. Comey and an internal investigation by the Justice Department into how Higazy’s “confession” was obtained. A report on the investigation by the Justice Department’s Office of the Inspector General was summed up in two letters to the judge written by Deputy U.S. Attorney David Kelley and released on Nov. 25. The report, Kelley said, cleared the polygrapher and two special agents of the FBI of any wrongdoing. It stated that Higazy had asked for the examination and that his own statements, as well as those of his attorney, contributed to the confusion that made charging Higazy with a crime seem like a reasonable decision. While Judge Rakoff accepted the government’s conclusion that Higazy had asked for the polygraph, the judge said Kelley’s letters left unanswered “whether the Government’s continued reliance on such a doubtful investigatory tool as polygraph testing increases the possibility of false confessions.” Kelley’s letters said the Inspector General’s report rebutted Higazy’s claim that he had been threatened and intimidated by the polygrapher. Kelley also went out of his way to cite passages of the report that pointed the finger at Dunn. An angry Dunn fired back in his letter to Judge Rakoff dated Nov. 27. The judge, Dunn said in his letter, “permitted the ‘fox to guard the henhouse,’” when he allowed the government to investigate itself. Dunn said an evidentiary hearing would have revealed what actually happened on Dec. 27, 2001, when the polygrapher claimed Higazy was deceptive on the question of whether he was involved in the World Trade Center attacks, and when, in a post-examination interview, Higazy purportedly gave three different versions of how he came to possess the radio. ACTIONS DEFENDED “In explaining his conduct through rigorous cross-examination, I guarantee the truth about what occurred in the room would have been laid bare,” Dunn said in his letter. “Instead, we have the Government neatly arranging its rationalization for its abhorrent conduct.” Dunn was most upset about statements attributed to him by Kelley’s summation of the Inspector General’s report. In his letter to Judge Rakoff, Dunn said that his comments outside the polygraph examination room were taken completely out of context, a problem created by Kelley’s reliance on “double hearsay.” Kelley quotes Dunn as saying “in substance, ‘he may be my client, but I’m an American too. That guy, with that radio, in that room, on that day, needs to be looked at.’ “ In his Nov. 27 letter to the judge, Dunn explains: “The government states that I made that statement on the heels of going into the room to question Higazy about the alleged confession as though I accepted Higazy’s complicity in the matter and had switched sides to the Government imploring them to investigate him,” Dunn said. “[N]othing could be further from the truth. The statement was nothing more than an acknowledgment, based upon the facts as then recounted, that I understood why Higazy was being investigated.” Dunn said further in his letter that the report, or at least Kelley’s summation of it, contains other “misstatements, misquotes and outright misrepresentations,” by the government. “Ironically, many of them relate to the entirely gratuitous attacks upon me concerning my professional ethics and the manner of my representation of Higazy,” he said. “I have been portrayed as negligent and failing to honor my obligation to my client. This is clearly not so.” An example of an “outright misrepresentation” in the Justice Department letters, Dunn said, was a claim that he told one of the special agents “between us Americans Higazy had informed me of a fourth version of how he came into possession of the radio,” a statement that Kelley cited in one of his letters as part of the government’s larger justification for charging Higazy with lying. Dunn closes his letter by saying that eight months have been wasted waiting for the report on the government’s “investigation,” when it is clear that Higazy would never been charged “had the agents properly done their job.” “I am left only to ponder what might have happened if a full evidentiary hearing had been held on this matter,” he said. “However, that day too shall come.”

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