Prophetic Justice

The United States is now prosecuting suspected terrorists on the basis of their intentions, not just their actions. But in the case of Islamic extremists, how can American jurors fairly weigh words and beliefs when Muslims themselves can’t agree on what they mean?

The prosecution’s exploration of what it called Hayat’s “jihadi mind-set” occupied a significant portion of Hayat’s trial in Sacramento this spring. Some of the evidence came from comments Hayat had made while conversing with an informant, Naseem Khan, who at the FBI’s behest had worn a wire and posed as an extremist. As in the Idaho case, prosecutors suggested that terrorism created new standards for dangerous speech, in which the endorsement of violence was as problematic as the incitement of it. Hayat’s speech was “not mere political discourse,” the prosecutor David Deitch argued, saying:

Hamid Hayat, like anybody, is welcome to have different views about American policies or about the policies of any country. But when you consider the evidence in this case, consider his views on violence, consider his views about the appropriateness of violence against the enemies of Islam, against what he viewed as the enemies of Islam, and that includes the United States.

The defense tried to argue that Hayat’s speech was common in Pakistan, where he had spent much of his life. That did not impress the jurors. Neither did his scrapbook filled with articles about the Taliban, jihad, and anti-Shia violence, nor the books by Masood Azhar, one of Pakistan’s most extreme militant leaders, that were found at his house. All of this—explicated by an expert on the stand—became evidence of his mind-set.

And so, of course, did the prayer from his wallet: “Oh Allah, we place you at their throats, and we seek refuge in you from their evil.” So critical did the prosecution believe the prayer was to its case that it called an expert, Khaleel Mohammed, a Guyanese-born, Saudi-trained scholar, to interpret it, at $250 an hour. Mohammed is an assistant professor of religious studies at San Diego State University and is best known for asserting that, according to the Koran, Israel belongs to the Jews. Most other Islamic scholars find that position politically unpalatable and scholastically indefensible. As a result, Mohammed is quite possibly more popular with Jewish groups than with Muslim ones. His testimony on the supplication was clear, consistent, and definitive.

“In your opinion, is this supplication peaceful?” another prosecutor, Laura Ferris, asked. “It’s not peaceful,” Mohammed answered. “Why do you say that?” Ferris asked. Mohammed replied:

Because every—just about every commentary I checked puts it in a case where someone who is in jihad makes this supplication, someone who is at war with a perceived enemy. The common phrase gives the explanation that it is to be used when in activity against an enemy.

The supplication’s context, he said, was for use “when one is engaged in war, a holy war, fighting for God, against an enemy that is perceived to be evil.” Guided by Ferris, a white-collar-crime prosecutor who had traded the intricacies of financial fraud for those of Islamic theology, Mohammed sketched the supplication’s lineage, tracing it back to two compilations of hadith. He said the supplication could be a tawiz—an amulet with a prayer carried as protection against evil. If so, it would be carried by “a person who is engaged in jihad.” All the commentaries, he said, indicated the supplication being used in jihad: “With this uniformity of context, there is no other way it could be used.” Mohammed testified that he had consulted an array of experts, from Pakistan to Perth, Australia. Some hadn’t heard of this prayer; others, he said, corroborated his thesis.

No expert testified for the defense about the meaning of the prayer. Wazhma Mojaddidi, Hayat’s lawyer, told me that several experts were asked but declined, even though they told her they disagreed with Mohammed’s interpretation. She felt they were reluctant to oppose the government. A Muslim herself, Mojaddidi tried to challenge Mohammed during cross-examination, but his version persuaded the jury. The jury foreman, Joseph Cote, told me after the trial that he found Mohammed “probably the most learned man I have ever encountered.” The defense had done nothing to convince Cote that the supplication could have a more benign interpretation than the one Mohammed presented. “[The prayer is] essentially asking Allah to protect him from his enemies so if he is threatened he is able to kill them,” Cote said. “There’s no latitude in the interpretation—it’s like, ‘Put the knife at the throat of my enemies,’ or something like that.” He called it “quite critical” evidence. “It became quite apparent that this is no accidental piece of paper that you would fold up and put in your wallet like a Saint Christopher medal or anything like that,” he told me. “This is something very, very—very specific.” Cote was dismissive of an expert for the defense, Anita Weiss, a professor at the University of Oregon who had testified that Pakistanis commonly carry a tawiz to ward off evil, much the way Jews place a mezuzah outside their door.

For the prosecution, Mohammed’s explication of the prayer was the “icing on the cake,” as McGregor Scott, the U.S. attorney, put it. Mohammed’s interpretation, he said, fit “very neatly into our theory of the case.” He told me:

Quite candidly, when you listen to that translation—“Oh Allah, we place you at their throats”—it’s pretty hard to put a benign meaning to that. To try to represent that this is a common thing that people carry about just defies common sense.

The rules of evidence make trials as much about what is excluded as what is admitted. In a filing about her testimony, Weiss said that she had shown the supplication to three Pakistanis in Oregon, who pronounced it “likely common” among travelers. They had laughed when she asked if it would be carried by a jihadist in particular. But for procedural reasons the judge barred her from testifying to that effect. Nor did the jury hear what Hassan Abbas, a Pakistani academic who had served as a prosecution witness, told me when we met. Abbas had testified about Pakistani extremist groups and the literature found in the Hayat household; he was not asked about the supplication. He said to me that he was surprised the prosecution had made such a big deal out of the prayer, because almost everyone in Pakistan carried a tawiz. He pulled out his wallet and removed a square of folded white paper that was laminated with plastic—a tawiz from a mystic he trusted in Pakistan. Unable to extract the paper from its plastic covering, Abbas wasn’t sure what it said—he thought it was a set of numbers surrounded by different names for Allah—but it offered him comfort nonetheless.

I asked other scholars about the prayer. Mohammed had testified that it was not common—“something almost secretive,” were his words—so I was surprised when the first three people I sent it to replied immediately that they recognized it, and called it very common. Bernard Haykel, the NYU professor who had testified in the Detroit case, wrote:

The bit you sent me is a very canonical and widely used Sunni (originally Prophetic) Islamic invocation or supplication in the event a Muslim is in fear of something or someone. It is in no way exclusive to terrorists or to Jihadis, though the latter no doubt also use it.

His translation was roughly the same as Mohammed’s, but with the caveat that “the Arabic expression ‘to be at their throats or chests’ means ‘to confront them.’”

Ingrid Mattson, a professor of Islamic studies at Hartford Seminary, wrote:

I recognized the words right away. It is a traditional supplication that you will find in many, many collections of prayers … This particular supplication you have sent me is reported to have been said by the Prophet when he feared harm from a group of people.

All her prayer books gave the same reason for saying it: “to ask God’s protection from people who might do you harm.” It was certainly possible that someone with nefarious intentions would have such a prayer in his pocket, Mattson said, “but the prayer itself is a ‘defensive’ prayer; it does not, in itself, connote a desire to do harm.”

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