I assume you weren’t able to interview Hayat. What might you have asked him?
I wasn’t able to interview him, and he didn’t testify. My questions would have been pretty straightforward: did he go to the camp? If not, why did he confess that he had? Was he involved in a plot? I think that last one is really the big mystery of the case.
Were people generally willing to talk to you about the case? How did you get the jurors—particularly Joseph Cote—to open up to you?
Well, regarding Joseph Cote: after the trial ended, one of the jurors recanted and accused Cote of, among other things, making some “racial slurs.” (Cote says he was misquoted and misunderstood.) This was obviously all over the news, and by the time I tried to talk to him, he felt burned by the press. He did not return my phone calls, so finally I just went to his house, knocked on his door, and ended up having a really long conversation with him. I think he opened up to me partly because I was really more interested in how the jury perceived the case and what went on during deliberations.
I found it incredibly interesting that so much of the trial depended on the jury’s interpretation of the tawiz [an amulet with a prayer carried as protection against evil] found in Hayat’s pocket. Why do you think the defense had so much trouble convincing an expert to testify to the meaning of the prayer? You didn’t seem to have any trouble confirming that the meaning could be benign.
I have a few theories. First, I think there is generally—and several defense lawyers have said this—reluctance on the part of many Muslims to testify for the defense in terrorism cases for fear of opposing the government when they already feel vulnerable. Many experts and academics have worked hard to preserve a position of neutrality since 9/11 and they fear jeopardizing that. Second, the defense lawyer was simply very rushed. She told me she just didn’t have the time to find someone.
And the last thing—and this is just me speculating—is that I don’t think the defense realized what a big deal the tawiz would prove to be during the trial. Perhaps it didn’t occur to Hayat’s defense attorney because she herself is Muslim. I think she assumed she could take on the tawiz herself during the cross-examination and debunk the prosecution expert’s interpretation herself. But the jury knew nothing at all about the subject, so when the prosecution put an expert on the stand who came across as incredibly learned and persuasive, and the defense offered nothing, the jury was swayed. Even if the defense attorney’s questioning did contain a different interpretation of the tawiz, her questions do not count as testimony on record. Only the witness’s answers do. The defense did at the last minute try to get a professor who was already testifying more generally about Pakistani culture to testify to the meaning of the prayer, but the judge barred it because of various procedural rules.
Your piece illustrates a series of fine lines between beliefs, intentions or capabilities, and actions. In a post-9/11 world, what is your sense of where the law should fall? Did you come across any compelling alternative approaches during your reporting?
That’s essentially the central question in the whole war on terror. And there’s clearly not a simple answer. Where does one draw the line on a continuum between words and deeds? Between ideas and beliefs and actions? To me—and maybe this isn’t a totally clear or satisfactory answer—these cases were drawing those lines too early. I think you need more evidence of an action or a plan. This isn’t to say that you need to wait for someone to blow something up, but I do think you need more evidence of a plot or intent. There’s a reason that our criminal justice system has generally shied away from trying to divine intent before a crime has occurred—it’s a very difficult thing to do. The reason I think using someone’s beliefs as a substitute for evidence is so problematic is because such beliefs are so easily misinterpreted. That is what these cases have shown me.