The law has two goals here: security and justice. For justice, we need to use the same standards that we apply to and that have evolved in our criminal justice system. As to security, no one has convinced me that applying those same standards to these cases would put us at greater risk. And conversely, I’m not sure this approach is the best way to divine true danger—even as we’re putting enormous investigatory and financial resources into some of these prosecutions, what else are we missing? Of course, we run into the problem of trying to prove a negative here—you can’t disprove that Hayat would have committed a terrorist act had they not arrested and convicted him—but I’m just not convinced that authorities are apprehending the most dangerous people through this approach.
While I think there are mostly good intentions behind this approach—an interest in protecting the public—I did find it really baffling how little curiosity there was within law enforcement over the supposed plot Hayat was part of. Let’s say he was a foot soldier in a larger plan. Where are the other eighteen or nineteen people who have been sent over to the U.S. to launch an attack? Who and where is the mastermind behind the scheme? There was so little effort to determine any of these things, at least publicly. I found that peculiar.
And yet proving his involvement in a plot wasn’t even necessary to the case.
No, it wasn’t. The prosecution could get a conviction without getting into that, which is exactly what they did. But if your interest is really in protecting the public, then why aren’t you avidly pursuing what is alleged to be an active threat? This is why some people suspect bureaucratic issues at play—prosecutors who want convictions, a justice department that wants a strong record in the “war on terror.” Obviously, I can’t get into people’s heads and speak to their motives, but I do think that if security is the real concern, there should have been a much bigger effort on everyone’s part to nail down exactly what Hamid Hayat was involved in.
There was an additional back-story that I didn’t include in the piece for space reasons that involved two Pakistani imams living in Lodi who allegedly were up to no good. But law enforcement never ended up charging them with anything; they reached an agreement on deportation instead. And so, again, if these two men were so dangerous, if they were perhaps the masterminds behind this group, if they were possibly the link (as one FBI agent suggested) back to Al Qaeda—why weren’t they put on trial?
Is freedom of speech really what’s at stake here? Will the U.S. have to redefine—or revoke—that freedom in order to justify using this kind of approach?
I don’t think freedom of speech is the only thing at stake, but it is certainly one of the things at stake. And historically, tests of freedom of speech have come for one of two reasons—either the speech in question is generally repugnant, or it is speech that feels especially threatening because of the historical or political moment. The rhetoric of Islamic extremism falls into both these categories and as a result it has really tested our commitment to that freedom.
But of course, when you’re living in a certain time, you forget that your experience is not necessarily so unique. It’s easy for us to believe that the threat we face now is much greater than any previous threat. And for all those reasons, taking a different approach, or tweaking the law to fit our current needs and cater to our current fears, seems justifiable. But history is laden with very similar experiences and threats—America’s experience in World War I, or our internment of Japanese-Americans in World War II, or the threat of communism.
As reprehensible as so much of this belief and language is, I have not met anyone who can make a convincing argument that this particular threat is so different from any other repugnant ideology that has come before it that it warrants our radically rewriting our whole approach to free speech or justice.
What does the future look like for this case? Do you think Hayat’s chances for a successful appeal are good under this system?
The defense will first move for a new trial, which is pretty routine. If their motion for a new trial is denied, then they will try for an appeal.
It’s hard to know what will happen. Hayat may have a better chance on an appeal than with a new trial. There are a number of grounds on which the defense could make an appeal. And as for his chances, I wouldn’t want to predict. I don’t think anybody knows.
What was the most challenging part of this process for you?
Getting the jurors to talk was definitely one. I think probably the most difficult thing was trying to address the question you brought up earlier: where do we draw the line? This is a really difficult question because prior acts of Islamic terrorism have definitely been grounded in ideology or theology or a combination of the two. So I do understand the desire to cut that off at the root; I just don’t think it’s feasible or fair. But I understand the impulse.