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?
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At the age of twenty-two, Hamid Hayat appeared to be adrift on two continents. He slacked, by turns, in his hometown of Lodi, California, and in his family’s home country, Pakistan. Having lived for roughly equal amounts of time in each, he seemed without direction in either. But on June 5, 2005, the young American offered up alarming evidence of personal initiative: after hours of questioning at the FBI’s Sacramento office, he confessed that he had attended a terrorist training camp in Pakistan and returned to the United States to wage jihad. In quick succession came his arrest, a packed press conference, and his indictment—and suddenly, it was all over but the trial.

From Atlantic Unbound:

"Islam on Trial?" (September 12, 2006)
The author of "Prophetic Justice" discusses the murky business of prosecuting would-be terrorists on the basis of their beliefs.

Hayat’s case presented a peculiar challenge for the prosecution, which needed to show not just that he had trained in Pakistan and concealed doing so, but that he had intended to commit terrorism. Yet the only direct proof of any of this was Hayat’s videotaped confession, which was as irresolute as his life. The slender, deferential young man repeatedly contradicted himself. He parroted the answers that agents suggested. And the details of any terrorist plan were scant and fuzzy.

The government said that its direct evidence was limited because it had intercepted Hayat so early in the process. “This is not a case where a building has been blown up, and, you know, the forensic investigators go in, they go looking through the rubble looking for clues,” one prosecutor, David Deitch, told jurors. “This isn’t that kind of case. This is a charge that allows the FBI to prevent acts of violence like that.” Would Americans, he asked, want any less?

To prove intent, then, the government had to turn to the rubble of Hayat’s life—an accretion of circumstantial but ugly evidence that prosecutors said proved “a jihadi heart and a jihadi mind.” There were Hayat’s words, taped by an informant, in which he praised the murder and mutilation of the journalist Daniel Pearl: “They killed him—I’m so pleased about that. They cut him into pieces and sent him back … That was a good job they did—now they can’t send one Jewish person to Pakistan.” There was what the prosecution called Hayat’s “frequently expressed hatred toward the United States”; his comment that his heart “belongs to Pakistan”; his description of President Bush as “the worm.” There was, at his house, literature by a virulent Pakistani militant and a scrapbook of clippings celebrating both the Taliban and sectarian violence.

And folded in his wallet was a scrap of paper on which was written a squib of Arabic. Prosecutors first translated the words as “Lord, let us be at their throats, and we ask you to give us refuge from their evil,” and then amended it, after the defense protested, to “Oh Allah, we place you at their throats, and we seek refuge in you from their evil.” But regardless of the translation, the interpretation of what the government called the “jihadist note” never changed. The prosecution cited it as “probative evidence” that Hayat had “the requisite jihadist intent” when he attended the training camp and then returned to America.

The note became a kind of leitmotif in the case. Weighing a request for bail by Hayat’s father, who had been charged with lying about his son’s training, U.S. Magistrate Judge Gregory G. Hollows wrote:

The allegations depict Hamid as one who would be ruthless in his disregard for human life if and when ordered to do so on account of a “religious” philosophy. Although religion can form the basis of mankind’s most noble deeds, it can also have the effect attributed to it by Pascal: “Men never do evil so completely and cheerfully as when they do it from religious conviction.” The scrap of paper found in Hamid’s wallet certainly speaks to the latter category.

An expert witness for the prosecution testified that the prayer would be carried around, as a prosecutor recapped, “by a holy warrior, a violent jihadi, who felt himself to be traveling in an enemy land, and who was ready to commit violent jihad.” That exposition resonated with at least some jurors, who speculated that the paper might be Hayat’s graduation certificate from the terrorist training camp. The prayer encapsulated everything they feared about the power and danger of religious conviction, and it helped ensure, after a ten-week trial, Hayat’s criminal conviction.

The September 11, 2001, attacks on the World Trade Center and the Pentagon prompted a fundamental shift in the American government’s approach to Islamic terrorism. Before 9/11, the government largely responded to attacks that had already occurred—by launching cruise missiles at terrorist bases in Afghanistan and Sudan after the 1998 embassy bombings in Africa, for example, or by prosecuting the planners and perpetrators of those bombings in federal court. (The notable exception was the trial and conviction in 1995 of Sheikh Omar Abdul-Rahman—the “blind sheikh—for “seditious conspiracy” to blow up New York landmarks.) But after 9/11, the focus turned to prevention.

Abroad, the government has pursued a doctrine of preemptive war. At home, it has pursued a strategy of what might be called preemptive prosecution. The criminal-justice system, the Justice Department said in a recent white paper on counterterrorism, now “operates effectively as an element of national power.” The goal has become to stop another terrorist attack before it happens. In 2002, the FBI told its fifty-six field offices they could no longer set their own law-enforcement priorities: the top priority for every office was preventing another attack. McGregor W. Scott, the U.S. attorney who prosecuted Hamid Hayat, says that then Attorney General John Ashcroft told him during their first meeting after Scott’s appointment, “Your job is to prevent further acts of terrorism.”

That job—a real-life, never-ending version of the television show 24—has weighed heavily on agents and prosecutors, in part because they have been ill-equipped to perform it. Trained in the classic art of whodunit—collecting fingerprints, interviewing bank tellers after a robbery, trying the purported robber—agents and prosecutors now have to figure out who will do it.

This preemptive strategy represents a major moral and legal change in the American approach to justice. Its premise is that terrorism—implicitly, Islamic terrorism—represents a singular, unprecedented threat to American safety and society. Testifying before Congress in 2004, Paul Rosenzweig of the Heritage Foundation paraphrased a well-known maxim, saying, “It is better that ten guilty go free than that one innocent be mistakenly punished.” September 11 changed the paradigm, he argued, and now, “we simply cannot afford a rule that ‘Better ten terrorists go undetected than that the conduct of one innocent be mistakenly examined.’”

The notion of preemptive prosecution is, of course, not without precedent. McGregor Scott notes that we prosecute felons for possession of firearms to stop them before they can use guns to commit a violent crime. David Cole, a professor at Georgetown University Law Center, cites the indictment of Al Capone for tax fraud as a “pretextual prosecution—the government couldn’t get him for more serious crimes—whose effect was also to prevent future crimes. Paul Robinson, a law professor at the University of Pennsylvania, argued even before 9/11 that the lengthy incarceration of habitual offenders was more about preventing future crimes than about punishing past ones, and warned against the ambiguity of punishing “dangerousness.”

The 9/11 attacks made this shift explicit for one category of crime and, in practice, largely for one category of American. In search of potential terrorists, the government has cast a broad net across the country’s Muslim communities, often relying on undercover informants. This has led to hundreds of legal cases against Pakistani, Saudi, Moroccan, Algerian, Palestinian, Yemeni, and American Muslims. In many instances, the prosecutions have been pretextual: charges of lying to law-enforcement agents, fraud, money laundering, and, often, immigration violations. But a number of prosecutions, like Hayat’s, have been explicitly preemptive: cases against individuals the government said were planning to commit terrorist acts or were encouraging or supporting others to do so.

The Bush administration did not seek legislation to authorize its new preemptive approach, instead relying on existing, if previously little used, laws. Key among these were two statutes—passed in 1994 and 1996 respectively—barring “material support” of terrorism, which can mean anything from personnel to funds. The laws, which were expanded under post-9/11 legislation, allow the government to bring terrorism- related charges even when no terrorism has occurred.

Deputy Attorney General Paul McNulty said in a recent press briefing that he encouraged prosecutors to bring charges against would-be terrorists as early as possible. But that approach can be at odds with prosecutorial success: the earlier you intervene to stop a suspected crime, the less proof you have that a crime was going to be committed. “As a prosecutor, you probably don’t have as much evidence of guilt [as] you would if the thing were much further along,” McGregor Scott, the U.S. attorney in Sacramento, says. “We don’t have [the defendant] in the rental van with a whole bunch of C4 [explosives] in the back driving to the federal building.” Whether that points to a lack of evidence or a lack of guilt, it presents prosecutors with a practical problem: how to prove that a suspect who has not committed a violent crime is dangerous enough to convict. In the armed felon’s case, the measure of dangerousness—proven past bad acts—is at least clear. But most terrorism defendants have not had previous convictions. Determining their intent, therefore, is what David Cole calls an “inevitably speculative endeavor.”

The government has sought to demonstrate danger in two ways. The first is through acts, such as training, that are seen as preparatory to terrorism (but not concrete or defined enough to result in conspiracy or other overt charges). The second is through speech, belief, or association—documented through the defendants’ words or material found in their possession—that suggests sympathy or support for terrorism. In case after case, the government has sought to prove allegiance to a radical Islamist philosophy that supports violence in Allah’s name. Much of the evidence, as a result, is religious in nature.

The government’s professed target is extremist dogma. But, as Mary Habeck notes in Knowing the Enemy: Jihadist Ideology and the War on Terror, extremists have gained traction precisely because their dogma finds its roots in Islam’s sacred texts—the Koran and hadith, the traditions of the Prophet Muhammad as documented by his companions—and in subsequent interpretations of Islam. That continuum of religious dogma presents a challenge for Islam, but also for the American court system, where the effort to try terrorist extremism has arguably resulted in the trial of Islam itself.

In 1925, John Scopes went on trial for teaching evolution in Dayton, Tennessee. The judge limited the number of experts testifying on the truth of evolution, saying it was irrelevant to proving whether Scopes had taught it. But lawyers on both sides—Clarence Darrow and William Jennings Bryan—virtually conspired to put fundamentalism on trial, as Sadakat Kadri recounts in his book The Trial. At Darrow’s request, Bryan took the stand as a biblical expert, saying, “They came here to try revealed religion. I am here to defend it, and they can ask me any questions they please.”

In their exploration of Islam, the recent terrorism trials have had a similar, if perhaps less circuslike, feel. The prosecution introduces beliefs into evidence, and the defense challenges the meaning or significance of those beliefs. Expert witnesses in Islam then fight pitched battles of interpretation for each side. Some of the experts are mainstream scholars, others outliers with unconventional views. Together, they make up a small but often lucrative cottage industry where their expertise can command $200 an hour or more. In the courtroom, they create a theological thicket that may be shaped as much by their own agendas and perspectives as by the facts of the cases.

Jurors have been schooled in the difference between fatwa (religious edict), and fatah (conquest). They have had tutorials in the history of Islam, from the angel Gabriel’s revelation of the Koran to the Prophet Muhammad to the rise of Osama bin Laden. They have learned about the meaning of bida, or innovation; the authentic chain of transmission for a hadith; and the virgins awaiting a martyr in paradise.

Such a thorough judicial disquisition of a religion has no modern parallel in America. Unless religious beliefs bear directly on guilt—the use of the illegal drug peyote in religious rituals, for example—they are generally barred from trials as prejudicial. Why have the rules changed? Because, as Aziz Huq, a lawyer at New York University’s Brennan Center for Justice, puts it, in recent times no other religion has been “so intimately linked in the public mind to violence.” Since 9/11, judges have given lawyers wide latitude to bring religion into the courtroom.

This surfeit of information on Islam is being presented to non-Muslim jurors who in large part operate from ignorance. Most Americans can parse the differences among Catholics, Holy Rollers, and followers of Jerry Falwell, but when it comes to Islam they know only that “there are terrorists, and then there are good Muslims,” says David Nevin, a criminal-defense lawyer.

Nevin successfully defended a Saudi graduate student, Sami al-Hussayen, who was tried in Idaho in 2004 for helping to manage Web sites containing jihad-related material. He recalls asking a pool of 150 potential jurors how many of them had ever known a Muslim. Only four or five people raised their hands, and all of them were vetoed as jurors by the prosecution. Nevin compares what followed to the Far Side cartoon in which a dog faces a jury of cats.

He analogizes Islam in his and other terrorism cases to the bogeyman—the frightening unknown. Talking about Islam in court is a way to prey on a jury’s fears, he argues—the equivalent of repeating the words brain damage to a jury in a malpractice case. Some prosecutors have invoked the violence in Islam’s history to indict modern defendants, or have suggested that Muslims may be prone to lying. On the whole, American judges have been unwilling to rule such assertions more prejudicial than probative.

The understanding of Islam in the courtroom is also clouded by the crisis of authority in the religion itself. For centuries, the Koran was rarely translated out of Arabic, giving authority to those—usually religious scholars, or ulama—with command of the language. In the past half century or so, the Koran has been more widely translated—or “interpreted,” since Muslims don’t believe it can be literally translated—and that has opened its interpretation to the layperson. The Internet, meanwhile, allows anyone to disseminate texts, opinions, and fatwas—and gain a following. And clerical authority has waned as places like Cairo’s Al-Azhar University, the heart of Islamic learning, have put themselves in the service of secular state interests.

In the Idaho trial, one expert witness, Reuven Paz, provided an apt example of this last trend. In 1956, Paz said, religious leaders at Al-Azhar gave Egyptian President Gamal Abdel Nasser a fatwa prohibiting any possibility of peace with the Jews. In 1978, different clerics at Al-Azhar gave Anwar Sadat “a fatwa that actually legitimized peace with Israel, and basically upon only just a different interpretation of mostly the same verses of the same hadith.”

The debates within Islam also concern who has the right or authority to do the interpreting. Men like bin Laden—who lacks religious credentials—now issue or order up a fatwa. Extremists proclaim their right to interpret Islamic texts. And clerics no longer have the authority to repudiate such interpretations.

Any judicial proceeding involves a search for facts, and trials often hinge on whose experts a jury finds more credible. But the effort seems fraught when it comes to the volatile question of religion, especially one in such tumult. In search of religious truth, lawyers, judges, and jurors who know almost nothing about Islam must wade through multiple layers of translation—from Arabic to English; from the spiritual to the secular; from the metaphorical to the literal. When Muslims themselves cannot agree on what so many aspects of their faith mean, how can American jurors?

Six days after the 9/11 attacks, a group of agents from the Detroit Joint Terrorism Task Force searched an apartment in pursuit of a man on the FBI’s terrorist “watch list.” What they found instead were three North African men—a fourth would eventually be arrested—and material the government believed pointed to terrorist planning. The men, the indictment said, “operated as a covert underground support unit for terrorist attacks within and outside the United States, as well as a ‘sleeper’ operational combat cell.”

The trial that followed in 2003 provided a dramatic illustration of the battles of interpretation in the war on terrorism and within Islam. With only limited evidence of a possible plot, prosecutors tried to link the defendants to what the indictment called a “transnational network of radical Islamists.” In a lengthy introduction, the indictment described Salafiya, a movement that aims to emulate the first generation of Muslims, by saying that it wages constant “global jihad” to conquer infidel areas. The indictment cited bin Laden’s fatwa against “Jews and Crusaders,” and the fatwa of Sheikh Omar Abdul-Rahman against American civilian targets, although no evidence tied either to the defendants. (The indictment also noted that the campaign against the Soviets in Afghanistan drew extremists who “were encouraged to engage in jihad as an essential element of their religious duty.” The prosecution did not say that the United States had provided that encouragement, along with funding and weapons. In a number of terrorism trials, the anti-Soviet resistance that the United States actively backed has been used as proof of violent zealotry.)

In truth, the only possible link between the defendants and the ideology of “global jihad—beyond the defendants’ Islamic faith and an unreliable informant’s assertions—was 105 Arabic-language tapes found in the defendants’ apartment, mostly containing the speech of an Egyptian preacher named Osama al-Kousi. There was no proof that the defendants had either listened to al-Kousi’s words or adhered to them. But al-Kousi’s philosophy became a point of heated contention between the prosecution and the defense; indeed, al-Kousi became a phantom defendant of sorts. Four expert witnesses—two for the prosecution and two for the defense—offered their opinions on his discourse. (“I think the jury will be overjoyed to hear another expert on Islamic fundamentalism,” U.S. District Judge Gerald E. Rosen quipped in advance of yet more testimony.)

Khaled Abou El Fadl, a prominent Islamic scholar, was a witness for the prosecution. El Fadl is of Egyptian origin, was educated at Yale, Princeton, and the University of Pennsylvania, and is now a law professor at UCLA. At one point he testified that al-Kousi described certain jurists or scholars as mistaken or heretical, and others as good jurists—the real scholars: “And that’s a very important theme throughout these tapes—who are the real people that you should listen to, and who are the real scholars you should listen to, and the people that are pretend scholars, not real scholars.”

El Fadl might as well have been talking about the trial’s dueling experts. Over days of testimony, they presented opposite interpretations not only of the tapes but also of Salafism, the sect of Islam that al-Kousi followed. They sparred over the meaning of “economic jihad,” and the beliefs of Ibn Taymiyya, an important thirteenth-century Muslim thinker. They talked about the fragmentation within Islam—and came to embody it themselves.

First for the prosecution came Walid Phares, a Lebanese Christian academic who emigrated to the United States in 1990, at the end of Lebanon’s civil war between Muslims and Christians. In Lebanon, Phares’s political activities included participation in the Lebanese Forces, a coalition of right-wing Christian militias that the defense said the U.S. State Department had labeled anti-Muslim. El Fadl, his fellow prosecution witness, calls Phares an “Islamophobe,” and at trial the defense sought to demonstrate as much. By his own characterization, Phares, an associate professor at Florida Atlantic University, was outside the academic mainstream until 9/11. But since the attacks, he has become a prominent public commentator on the dangers of “jihadism.” He is an analyst on MSNBC, the author of Future Jihad: Terrorist Strategies Against America, and a senior fellow at the Foundation for Defense of Democracies.

As an expert, he brought more certainty than depth to the stand. He conceded that he had listened to some of the al-Kousi tapes while driving, and one while jogging. Much of his knowledge of Salafism had come from the Internet. He testified that he had never been to Saudi Arabia, Yemen, or Egypt; had never taken a course in the Koran or hadith; and had never been to a Salafi mosque. Phares himself revealed the limits of his kind of expertise. He and the defense experts disagreed about whether taqiya—religiously sanctioned dissimulation—would be practiced by Sunnis, which the defendants were, or, as the defense argued, only by Shiites. To prove his point, Phares brandished an article from USA Today about Pakistani men at a Karachi mosque preparing to come to America to blend in as a “sleeper cell.” The article, he said, was an example of modern Sunnis practicing taqiya. The defense was skeptical—USA Today was hardly scholarly literature, the lawyers asserted—but the judge allowed Phares to testify that he had read in the press that taqiya was being practiced in North America, by Sunnis.

As it turned out, the article’s author was Jack Kelley, whose career with USA Today ended in the spring of 2004, when the paper concluded that “at least 20 of his stories contained fabrications and that he also lifted at least 100 passages, without attribution, from other publications.” The story Phares invoked was “among those cited,” a correction attached to it says. According to the paper, “U.S. consulate officials in Karachi, Pakistan, said they could not verify the existence of the specific mosque Kelley described—which would suggest that the young men inside it were equally unverifiable. Presented to the jury as truth, the article was, in fact, a mirage. Phares couldn’t have known that when he testified—but when I met with him this year, he was still citing the Kelley story. As to the tapes, Phares’s testimony was unequivocal: al-Kousi was a Salafi, he said, and thus by definition supported violence. Phares agreed with the prosecutor’s statement that the Salafi philosophy “advocates violence against the non-Islamic world to achieve an Islamic world order.”

The defense painted a different picture of both al-Kousi and Salafism. Wael Hallaq, a professor of Islamic law at Montreal’s McGill University, called al-Kousi the “ultimate pacifist” and a critic of radicals. Al-Kousi, Hallaq said, considered himself a better Salafi than those who advocate violence. Hallaq is an Arab Christian, educated in Israel. The second defense expert, Bernard Haykel, is an associate professor of Middle Eastern and Islamic studies at New York University and has a doctorate from Oxford. He is the son of a French Lebanese Christian and a Polish Jewish Holocaust survivor. Defense attorneys on terrorism cases have generally avoided Muslim experts, fearing that juries will not find them credible. Prosecutors have tended to favor them. Each side, El Fadl says, is playing to the jury’s prejudices. Some Muslim (and even non-Muslim) scholars also fear testifying for the defense, lest they attract government scrutiny. In part because of his mixed heritage, Haykel, who has participated in at least three major terrorism trials, is a “dream witness,” according to one defense lawyer.

Haykel has specialized in Salafism, doing extensive field research in Yemen, and he disputed Phares’s interpretation that mainstream Salafism was violent. At one point, the prosecution asked him whether he agreed with the statement, “The Salafist philosophy advocates violence against a non-Islamic world to achieve an Islamic world order.” He replied, “I agree that it applies to the radical Salafism, not to the mainstream Salafists.” Haykel further said that “Mainstream Salafists advocate a strict adherence to Islamic ritual law,” and “total obedience to the ruler of the state they live in.” They oppose electoral politics and political parties, and aim to convert the Muslim world to their way of understanding Islam “through preaching and teaching and propaganda.”

Haykel did not agree that al-Kousi was the “ultimate pacifist,” as Hallaq had maintained, but he did say that al-Kousi opposed jihadis. And he tried to explain why much of what al-Kousi said was not to be taken literally. The reason for this, Haykel said, lay in the character of religious, and specifically Islamic, speech. Al-Kousi, for example, used rhetorical devices common to polemical speech, such as quoting his opponents in order to rebut them. The prosecution, Haykel argued, treated al-Kousi’s recitation of his opponents’ positions as his own. Haykel also went out of his way to distinguish between religious and political speech. In religious speech, he testified, Muslim leaders or scholars say things that would sound very objectionable to most Americans and non-Muslims. Sometimes “very bad things are said about non-Muslims,” he continued, “but that’s religious speech; [it] doesn’t actually lead to actual political activism or engagement.”

THE COURT: How does one distinguish that to—for example, to—the American ear? How does one distinguish that?

HAYKEL: It’s not easy. You’d have to be trained, like I am, in deciphering that kind of talk. It’s like listening to an evangelical Christian. If you don’t know the context, it’s difficult to know what they’re actually talking about. You might think that something is much more extreme than it actually is. The … followers of these movements, students know, and their enemies know, exactly what is being said, because of the pitch, the sources that are mentioned, and so on.

I met with Haykel and asked him to expand on these distinctions. Haykel had testified that when al-Kousi said infidels should be put to death, the Egyptian preacher meant that an Islamic state, not individuals, should carry out that punishment. Similarly, Haykel told me, some of al-Kousi’s statements that sounded violent were actually invocations to God, not exhortations to fellow humans. Asking God to kill enemies or Jews or Americans was not the same as telling people to do so. “You’re not giving directives to the congregation to go and engage in violence,” Haykel said.

Bin Laden, he said, made similar prayers, but then took it a step further by telling Muslims they had a duty to kill. According to Haykel, al-Kousi never took that step: “He was very clear when he was actually saying you should do something versus what he hoped God would do or he hoped would eventually happen with God’s intercession.” Real jihadists, he said, are “absolutely explicit when they intend violence. There is no obfuscation, there is no double entendre.”

Haykel’s argument, in other words, was that there were clear standards for dangerous religious speech. For much of the twentieth century, the United States wrestled with the question of when speech became so dangerous that it should be stripped of constitutional protection. The government prosecuted people for seditious speech during World War I (some were only recently exonerated, posthumously). During the Red Scare, membership in the Communist Party—and speech and literature in its defense—merited prosecution under the Smith Act, a federal statute that was upheld at the time by the Supreme Court. Partly in response to that history, the Supreme Court in 1969 laid down the clearest standard yet for legally impermissible speech. In Brandenburg v. Ohio, the Court said prohibited speech had to be “directed at inciting or producing imminent lawless action,” and it had to be “likely to incite or produce such action.”

The rhetoric of Islamic extremism may present the toughest challenge for that standard since its establishment. The question lapping at the trials’ edges—and sometimes at their core—is how the law should deal with language that does not incite but, through a long slow process, indoctrinates. On the continuum between word and deed, belief and action, where do we draw the legal lines?

Al-Kousi, the subject of so much expert testimony in the  Detroit case, himself helped to frame the debate. As   the experts recounted, al-Kousi describes on the tapes two kinds of terrorism, intellectual and physical, and says that the former lays the groundwork for the latter. Bloodshed begins with words, he says repeatedly. As Hallaq put al-Kousi’s point, “Terrorism can begin with an innocent word—or something that looks like an innocent word.”

Was al-Kousi warning against intellectual terrorism, or engaging in it? On this, the experts disagreed. Phares said al-Kousi was providing “a mountain of ideological buildup.” Nothing on the tapes called for an attack on the United States, Phares said, but the rhetoric legitimized one. Hallaq and Haykel, in contrast, insisted that al-Kousi was warning against the danger of intellectual terrorism. On the reality of that danger there is less dispute. Phares argues that 90 percent of Islamic terrorism is the nonviolent preparation for acts of violence. The war on terrorism “is a war of ideas, at the end of the day,” he said when I met him at MSNBC, where he was the analyst in residence on a gray Saturday. Haykel, in turn, said when we met two months later:

I think it’s true that jihadism comes with a whole apparatus of propaganda, a whole worldview, a set of ideas, and a way of indoctrinating these ideas into people. People don’t blow themselves up just because they wake up one morning. They need preparation. They need to be inculcated with certain views and ideas, and jihadism is very good about that.

That inculcation has ample source material, Haykel said, because many hadith and Koranic verses seem to advocate violence; most Muslims just know not to take them literally. Is it possible, he was asked during cross-examination, that someone radically inclined might take al-Kousi’s words as a call to action? “Well, the Koran can be taken as a call to action,” Haykel answered. “You don’t need to listen to al-Kousi.”

Religious speech is extreme, emotional, and motivational. It is anti-literal, relying on metaphor, allusion, and other rhetorical devices, and it assumes knowledge within a community of believers. Its potency is deliberate: faith is about calling on a higher power, one stronger than ourselves, and the very language we use helps inflate that strength. We arm ourselves (itself a violent metaphor) with prayer.

This is hardly unique to Islam. The question of how to interpret a text may be as old as writing, and it applies equally to determining where the power of religious speech inheres. In authorial intent? A reader’s interpretation? Historical or modern context? Over the centuries, and even today, the Bible and Christian theology have helped justify the Crusades, slavery, violence against gays, and the murder of doctors who perform abortions. The words themselves are latent, inert, harmless—until they aren’t.

Our current circumstances beg the question so acutely because America has been a target, and because most Americans are not Muslim. “God damn you!” sounds fine to us, as does “Onward, Christian Soldiers.” “Allah, we place you at their throats” does not. If the words themselves were to be labeled dangerous, Haykel asked me, “why not ban the Koran?” An expert, he argued, could distinguish between rhetoric and practice—or, in these cases, between violent words and violent intent. But he was skeptical that prosecutors, judges, and jurors involved in terrorism trials would be able to correctly ascertain where ideology shaded into criminality. Nor was it clear that even experts could: after all, where Haykel saw harmless speech, El Fadl saw malignity. In the Detroit case, El Fadl conceded that al-Kousi’s words were protected speech. But such speech can still be evidence at trial—and indeed, the tapes had helped convince El Fadl of the defendants’ guilt.

El Fadl has written extensively on how puritans have hijacked Islam—an opinion he wields with such vehemence that some in academia believe his emotion has clouded his analysis. “As an American, as a Muslim, I want these terrorists captured and put in jail,” El Fadl said when we met at his UCLA office, where Islamic texts lined the walls, classical music played, cigarillo smoke filled the air, and his tiny blind dog roamed the floor. Wary of witch hunts against Muslims, he had gone to great lengths to assure himself the case was solid before agreeing to testify. He went over all of the evidence with the prosecutor, who told him that the defendants were “100 percent guilty.” He listened to all of al-Kousi’s tapes. He decided, he told me, that the defendants’ behavior “fit more in the m.o. of a terrorist cell than orthodox puritan Muslims.” He took no money for his testimony. He was convinced—and he testified—that al-Kousi advocated a violent philosophy and had misinterpreted hadith to justify it. El Fadl said al-Kousi espoused an “intolerant, puritanical, fanatic, extremist, literalist” position, and that he legitimated violence by dehumanizing his enemies.

Jurors seemed to see the case much as El Fadl did, and they convicted two of the defendants on the material-support charge. Then, in 2004, the government said that a prosecutor in the case, Richard Convertino, had withheld exculpatory evidence from the defense, and it asked for the terrorism convictions to be thrown out. The judge agreed. This past March, amid a major feud between the Justice Department and Convertino, a grand jury indicted Convertino for withholding evidence.

For Haykel, the reversal of the convictions vindicated his sense that the men were innocent and had been picked up just because they were Muslims in the wrong place right after 9/11. Phares, in turn, continued to insist on the tapes’ “jihadist nature.” El Fadl did not even know that the convictions had been overturned, or the prosecutor indicted, until I told him this spring. The news, he said, deeply depressed him, and the day after we met at UCLA he called and asked me to come to his house to discuss the case further.

Although El Fadl thought that the indictment was Islamophobic, he also felt that Convertino was ethical. El Fadl insisted that, even though the indictment stood, Convertino had come to see it his way. (The indictment was later found to have been partly copied from a scholar’s article on Islamic fundamentalism.) Convertino was the best of the prosecutors who had approached him to testify, El Fadl said: “If I can’t trust him, then I don’t want to play.”

For El Fadl, the saga reinforced the difficulty of being a Muslim public intellectual in America today—of being forced to choose sides. He has been assailed by Muslims for his opposition to puritans, and called a “stealth Islamist” by the columnist Daniel Pipes, who polices American Muslims’ speech for signs of extremism. He has received numerous death threats, especially after his testimony in Detroit, and says someone fired a bullet into his house earlier this year. He describes living a life “so charged that every time you act there are 1,000 people interpreting that act.”

But the case’s outcome also reinforced the difficulty of divining intent. El Fadl is a Muslim, a scholar of Islam, far more knowledgeable than any juror—and yet he, too, appeared to have misread the “dangerousness” of the Detroit defendants. What did it mean, then, to ask jurors who are ignorant and fearful of Islam to judge the nature of a Muslim’s beliefs? The risk of misinterpretation runs both ways: extremists can twist religious language, but prosecutors can also see that language as more extreme than it is. Nothing convinced me of this risk more than Hamid Hayat’s trial, and the role played by the prayer found in his wallet.

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.”

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.

chart
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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