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?

I sent the prayer to Salman Masood, a Pakistani who reports for The New York Times from Islamabad. He too recognized it right away: “It is a very common prayer,” he wrote in an e-mail, “which in a very rough translation asks Allah to save one from the evil of enemies.” In a book titled The Prophet’s Prayers, Masood found this translation: “Oh Allah, we pray that you put fear in the hearts of our enemies and ask for your protection against their mischief.” (The Muslim Students Association/University of Southern California hadith database gives still another translation: “O Allah, we make thee our shield against them, and take refuge in Thee from their evils.”) Masood also found the prayer in a small booklet that teaches how to say the five daily prayers of Islam; it had a subsection with this supplication. The booklet said that “this prayer should be said ‘when you have the fear of enemies,’” Masood wrote. “It’s a very common prayer, and yes, I would say that many Pakistanis know about it.”

Did all of this prove that Hayat wasn’t a terrorist or a jihadi? No. But the prayer’s commonness means that it didn’t prove that he was. And the prosecution’s focus on—and narrow interpretation of—a prayer known to and used by millions of Muslims seemed to border on criminalizing a religious practice. What Muslim, after this case, would carry this supplication, even though it is found in common prayer books? No wonder many Muslims (and non-Muslims) I spoke to argued that the upshot of these cases was to redefine for one class of Americans what constitutes permissible speech, association, or belief—to ask Muslims to prove their Americanness by denying their texts, history, and religion.

Walid Phares had argued to me that we ought to pass laws—or at least a congressional resolution—against the ideology of jihadism, much like Britain’s ban on the “glorification of terrorism.” I didn’t take his argument seriously, if only because it was so vague. But I came to believe that the public debate such a law would provoke would be preferable to the ad hoc redefinition of Muslims’ basic freedoms these trials represent. At least then we would have to argue out whether jihadism is any different than Jerry Falwell’s biblically based rhetoric against gays, or the Army of God’s use of the Bible—on publicly accessible Web sites—to justify the use of unspecified “force” in the abortion wars.

In May, TheWashington Post ran an article by Mohammad Ali Salih, the Washington correspondent for the London-based Arabic daily Asharq Al-Awsat. In it, Salih describes his elderly father, a villager in Sudan, reciting a prayer to him over the phone. The prayer goes like this: “May Allah guide you in whatever you do. May Allah protect you from evil. May Allah destroy your enemies.” Salih worries, in the article, that an eavesdropping National Security Agency could misinterpret his father’s words. “His everyday conversation has always been peppered with Islamic words and phrases such as Allahu akbar’ [God is great], ‘jihad,’ and ‘infidels,’” Salih wrote. In an interview, Salih told me that his father was the product of a lifetime in the village, while he himself had changed over the course of thirty years in America. When I told him that a prayer similar to his father’s had been used as evidence of Hayat’s terrorist mind-set, Salih grew exasperated. “Then my father would be a terrorist,” he said. “People shouldn’t take prayers so literally.”

After nine days of deliberations, Hamid Hayat’s jury  found him guilty on four counts: one count of providing material support or resources to terrorism, and three counts of lying about it. He faces up to thirty-nine years in prison. The government’s press release trumpeting the conviction highlighted, among other evidence, the “jihadi supplication” from his wallet: “According to a government expert in Islamic law, the supplication was of the type that would be carried by a warrior/jihadi who perceived himself as being engaged in war for God against an enemy.”

After the verdict, one juror recanted, saying in an affidavit, “I never once throughout the deliberation process and the reading of the verdict believed Hamid Hayat to be guilty,” and that she had changed her vote “because the pressure began to take its toll on me.” Hayat’s lawyer, Wazhma Mojaddidi, joined by one of California’s best appellate attorneys, Dennis Riordan, is moving for a new trial on that and other grounds. The recanting juror said that the jury foreman, Joseph Cote, had on a number of occasions “gestured as if he was tying a rope around his neck and then pulling the rope in an upward motion”—something that Cote has denied and no other juror has so far corroborated. She also said that Cote had made “racial slurs,” quoting him as saying, “If you put them in the same costume they all look alike.” Cote says that he was misquoted and misunderstood. Either way, he acknowledges, as the affidavit says, that he apologized because his comment angered some jurors. But another juror, Starr Scaccia, told me:

The Muslims are everywhere. Or, I don’t know if they’re Muslims or exactly who they are—but they all pretty much look alike. They all have beards, they all have the longer hair … it’s hard to distinguish within that race who is who.

My conversations with a few of the jurors exposed a profound cultural gap. They did not understand why Hayat had lived in Pakistan with his grandfather, a well-known conservative cleric, for much of his childhood, or why he had collected political articles in his scrapbook rather than “Girl Scout and 4H-type” clippings, as Scaccia said she herself had done as a youth. But when I went to see Cote in his Folsom home, I did not find the certainty about the case I was expecting.

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Joseph Cote

Cote is a retired salesman with white hair and beard and a forceful and engaging manner. One could imagine more than his age—he turned sixty-five in August—giving his words weight with fellow jurors. Cote visited Saudi Arabia in the 1980s, and still carries vivid memories from that experience. But after 9/11, his curiosity about Islam and concepts like martyrdom became more avid. When he was called for federal jury duty this year, he had just started reading Ross Dunn’s Adventures of Ibn Battuta: A Muslim Traveler of the 14th Century.

The only evidence of Hayat’s attendance at a training camp was his confession, which Cote never really doubted. Eventually the other jurors came around, or were brought around, to his way of thinking. But that did not mean that he or they were free of doubt about their decision to convict Hayat on four counts. In fact, in our more than two hours of talking, Cote seemed to contradict himself about what exactly the jury had been asked to decide.

Hayat faced one charge of providing material support or resources. The statute under which he was charged did not require prosecutors to identify a specific terrorist organization. As a result, the government could elide the perplexing question of exactly which organization Hayat had trained with, since he had named several in his confession.

But the government did have to prove that Hayat had provided material support or resources “knowing or intending that such material support and/or resources were to be used in preparation for, or in carrying out, terrorism that transcends national boundaries”—and that he had covered up his training with similar intent. But what had Hayat been intending to do? There was a vagueness at the heart of the case: by the trial’s end, Hayat’s beliefs were clear, but there wasn’t any evidence of a terrorist plan. If the charge had been “attempted terrorism,” Cote said, Hayat would have walked.

Hayat’s intent was the last issue the jurors discussed, when they had wrapped everything else up. To Cote, it was just a subset of the main charges, but he called it “the most perplexing question in the entire indictment—the least damning, legally speaking, from his perspective, yet perhaps the most weighty morally. After the judge denied their request for a dictionary, the jurors spent an entire morning wrestling with what the word intending meant. Starr Scaccia said she was the only juror who was truly convinced that Hayat would have carried out an act of terrorism; her fellow jurors “didn’t feel he had the guts to do it.” The truth, Cote kept saying to me, was that they just didn’t know.

This was their conundrum: Do you send a man to prison—ostensibly for training and lying—when the real question is whether he is a threat, and most of you don’t think he is? “That’s what made the verdict so tough,” Cote said. “Because we thought in the gut, ‘Maybe he may not do it.’” But what Cote called the “literal world,” defined by the boundaries of law and evidence, did not allow for shades of gray.

During our interview, Cote said several times that the jurors were not asked to decide whether Hayat was capable of engaging in terrorism. “Believe it or not, that’s the only way I can sleep nights,” he said. And yet they did decide it, Cote said, concluding that the evidence suggesting that Hayat would act—the scrapbook, the prayer, and so on—was stronger than the evidence that he would not. In essence, the prosecution’s strategy had paid off: there were no details of a plan, but Hayat’s purported predisposition—his words, more than his deeds—had become decisive.

McGregor Scott, the U.S. attorney who brought the case, believes the jury did find that Hayat had the intent to act—or at least that he possessed the intent at some point in time. “The crime was complete when he returned to the United States with the intent to commit jihad,” Scott said—even if Hayat later changed his mind.

The “punch line,” Cote said, was that he thought these cases were more than a jury could handle.

We’re not being asked, “Did the defendant commit the crime?”—whether it’s larceny, murder, whatever. Now you’re being asked, “Is the defendant capable of doing a crime?” And I don’t think that that is in the … level of understanding of the juror.

The doubt “works on you,” added Cote, who used the phrase “the haunt.” What haunted him was having to weigh, with inconclusive evidence, the risk that the man before the jurors was dangerous against the countervailing risk of depriving an innocent man of his liberty. He and his fellow jurors had no extraordinary talents to bring to bear on that task; they were Americans who had been selected for jury duty because of their very ordinariness. As Cote saw it, they were ill-equipped to handle what was being asked of them.

In the end, Cote decided that they couldn’t take a chance. There are “so-called new rules of engagement, and I don’t want to see the government lose its case,” he said. He looked at Hayat and saw what he called a “nice young man.” But in his mind was the specter of other nice young men, three of them also of Pakistani origin, who had carried out the London subway bombings. “Can we, on the basis of what we know, put this kid on the street?” Cote asked. “On the basis of what we know of how people of his background have acted in the past? The answer is no.”

What was Hayat’s background? His religion, his nationality, his political beliefs. Aziz Huq of the Brennan Center says that courts have generally required overt acts to convict because without such evidence, people tend to fall back on immutable characteristics like race or religion, or on political beliefs, which, if not immutable, should be immune to pressure from the justice system. We interned Japanese Americans based on race, yet not one was ever connected to a criminal act against this country. We prosecuted Americans for membership in the Communist Party, even though there was rarely a demonstrable link between party membership and violence against the United States. Hayat’s “background,” it seemed, fell into the same category.

The other result of this approach is to reduce risk through the de facto restriction of the fundamental liberties of a select group of Americans. Legal scholars have warned against precisely this, because it eliminates the political check inherent in a universally distributed restriction. When you add to this the difficulty of a jury misinterpreting signals of dangers from a religion it does not understand, you get a prescription for possible wrongful imprisonment.

Huq identified a corollary danger: many people who hold certain beliefs, or even take steps preparatory to terrorism (like training), will never act. “There are always multiple possible outcomes,” he said. Is it really the best strategy, he asked, to treat as criminals people who are five steps back from a crime? Many people who subscribed to Hayat’s way of thinking—anti-American, pro-Taliban, and so on—would never become terrorists. Are we punishing people for an outcome that may never come to pass?

Hayat was convicted as much for what he might do as for what he had done. Closing arguments usually provide dramatic recountings of a crime. The prosecutor David Deitch suggested crimes that Hayat could commit, from spraying a crowd with an AK-47 to wearing a backpack full of explosives into a crowded shopping mall.

In the wake of 9/11, many Americans will accept, if not applaud, this approach. For us, terrorism possesses unrivaled destructive power, both in the scale of damage it inflicts and the fear and vulnerability it creates. After all, if stopping inner-city or gang violence were as important to us as thwarting terrorism, we could start preemptive prosecutions of young men, based on their race, their familiarity with firearms, and their possession of music that glorifies or encourages violence. This preventive approach, Cote said, means that “just as there are people in prison who never committed the crime, this may also happen. Not this particular case, I’m saying, but future cases.” He argued that it was “absolutely” better to run the risk of convicting an innocent man than to let a guilty one go. “Too many lives are changed” by terrorism, he said. “So shall one man pay to save fifty? It’s not a debatable question.”

I left his house and started back to Sacramento, passing the grounds of Folsom State Prison along the way. In the aggregate, at least, Cote’s instinct seemed to offer an appealing surety. Only when I was back on the highway did I see its practical flaw: prosecuting and imprisoning one innocent man would do nothing, in fact, to save the fifty at risk.

Photograph of Joseph Cote by Paul Estabrook

Amy Waldman is a national correspondent at The Atlantic.
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