In 2001, the U.S. government launched an investigation into the city of Lodi, California. Authorities had received a tip that local businesses in Lodi, which is home to a large Pakistani community, were sending money to terrorist groups abroad. The investigation ultimately fell flat, but it did lead authorities to a young California native named Hamid Hayat who, four years later, was taken into custody for suspected connections to terrorism. For reasons that are still unclear, Hayat confessed that he had visited a terrorist training camp in Pakistan and returned to the United States to wage jihad. This past April, a California federal court found the twenty-three year-old guilty on four counts. He faces up to thirty-nine years in prison.
Though seemingly straightforward, Hayat's case was in fact anything but. The prosecution’s case depended less on convincing the jury that Hayat had attended a training camp than on proving he intended, at some point, to commit a terrorist act. The jury was tasked with reviewing the hazy details of Hayat’s life for clues of such intent or capability. Aside from the confession, which was “as irresolute as his life,” the only insights the jury had into Hayat’s mind were snippets of a taped conversation between Hayat and an FBI informant who had posed as an extremist, literature found in his possession by a powerful Pakistani militant, a scrapbook of clippings praising the Taliban and sectarian violence, and small scrap of paper—found in the defendant’s pocket—on which one line of Arabic was written: “Oh Allah, we place you at their throats, and we seek refuge in you from their evil.” With little evidence to consider, the jury was asked to decide whether Hamid Hayat could be considered a threat to national security.
To Atlantic national correspondent Amy Waldman, Hayat’s trial exemplified a burgeoning post-9/11 trend: the U.S. government’s pursuit of preemptive prosecution. “This preemptive strategy represents a major moral and legal change in the American approach to justice,” Waldman writes in the The Atlantic’s October issue. “Its premise is that terrorism—implicitly, Islamic terrorism—represents a singular, unprecedented threat to American safety and society.” As a result, much of the evidence in cases brought to trial under this framework is religious in nature. Prosecutors have argued in a handful of cases to date that dangerous intentions are demonstrated in at least one of two ways: through preparatory acts, such as training, or through speech, belief or association that indicates sympathy or support for terrorism.
The latter category is especially problematic. At what point does speech or belief become so dangerous that it ceases to be protected by the constitution? According to a 1969 Supreme Court ruling (Brandenburg v. Ohio), prohibited speech, by definition, has to be “directed at inciting or producing imminent lawless action,” and it has to be “likely to incite or produce such action.” So, Waldman asks, what of language that does not explicitly incite, but rather “through a long slow process” indoctrinates? “On the continuum between word and deed, belief and action, where do we draw the legal lines?”
In her thorough examination of the current legal and judicial landscape, Waldman poses a series of thought-provoking questions on everything from the genesis of this newly popular preemptive approach to its legitimacy and implications. She illuminates both the characters in the debate and the roles they play: offering a look, for example, at the growing cottage industry of Islamist expert witnesses who can command at least $200 an hour for their testimony. Or the (mostly non-Muslim) jurors who, so ignorant in their knowledge of Islam, are given crash courses in drawing distinctions between fatwas and fatahs, jihad and hirabah. Or the fractured world of Islamist scholars and clerics, most of whom cannot agree on a common interpretation of the Koran. “When Muslims themselves cannot agree on what so many aspects of their faith mean,” Waldman asks, “how can American jurors?”
A former reporter for The New York Times and The Washington Monthly, Amy Waldman lives in Cambridge, Massachusetts where, in addition to her work for The Atlantic Monthly, she is also a fellow at the Radcliffe Institute for Advanced Study. "Prophetic Justice" is her first Atlantic piece. We spoke by phone on September 7, 2006.
How did you become interested in Hamid Hayat’s case?
I read news reports on it around the time he was arrested. I had just moved back to California, and had spent time in Pakistan as a reporter, so I was intrigued by his case. Separately I started looking at cases—the al-Timimi case, for example—that dealt explicitly with questions of speech. In looking at all these different cases, I was surprised at the way in which religion was being used and how central a role it played during all the trials.
How did this case stand out from the others?
They’re all different. But Hayat’s case was an especially good example of preemptive prosecution. I didn’t necessarily realize that at the outset, but once I started looking at it more closely, it became increasingly clear that that’s what was going on.