In 2001, the U.S. government launched an investigation into the city of Lodi, California. Authorities had received a tip that local businesses in Lodi, which is home to a large Pakistani community, were sending money to terrorist groups abroad. The investigation ultimately fell flat, but it did lead authorities to a young California native named Hamid Hayat who, four years later, was taken into custody for suspected connections to terrorism. For reasons that are still unclear, Hayat confessed that he had visited a terrorist training camp in Pakistan and returned to the United States to wage jihad. This past April, a California federal court found the twenty-three year-old guilty on four counts. He faces up to thirty-nine years in prison.
Though seemingly straightforward, Hayat's case was in fact anything but. The prosecution’s case depended less on convincing the jury that Hayat had attended a training camp than on proving he intended, at some point, to commit a terrorist act. The jury was tasked with reviewing the hazy details of Hayat’s life for clues of such intent or capability. Aside from the confession, which was “as irresolute as his life,” the only insights the jury had into Hayat’s mind were snippets of a taped conversation between Hayat and an FBI informant who had posed as an extremist, literature found in his possession by a powerful Pakistani militant, a scrapbook of clippings praising the Taliban and sectarian violence, and small scrap of paper—found in the defendant’s pocket—on which one line of Arabic was written: “Oh Allah, we place you at their throats, and we seek refuge in you from their evil.” With little evidence to consider, the jury was asked to decide whether Hamid Hayat could be considered a threat to national security.
To Atlantic national correspondent Amy Waldman, Hayat’s trial exemplified a burgeoning post-9/11 trend: the U.S. government’s pursuit of preemptive prosecution. “This preemptive strategy represents a major moral and legal change in the American approach to justice,” Waldman writes in the The Atlantic’s October issue. “Its premise is that terrorism—implicitly, Islamic terrorism—represents a singular, unprecedented threat to American safety and society.” As a result, much of the evidence in cases brought to trial under this framework is religious in nature. Prosecutors have argued in a handful of cases to date that dangerous intentions are demonstrated in at least one of two ways: through preparatory acts, such as training, or through speech, belief or association that indicates sympathy or support for terrorism.
The latter category is especially problematic. At what point does speech or belief become so dangerous that it ceases to be protected by the constitution? According to a 1969 Supreme Court ruling (Brandenburg v. Ohio), prohibited speech, by definition, has to be “directed at inciting or producing imminent lawless action,” and it has to be “likely to incite or produce such action.” So, Waldman asks, what of language that does not explicitly incite, but rather “through a long slow process” indoctrinates? “On the continuum between word and deed, belief and action, where do we draw the legal lines?”
In her thorough examination of the current legal and judicial landscape, Waldman poses a series of thought-provoking questions on everything from the genesis of this newly popular preemptive approach to its legitimacy and implications. She illuminates both the characters in the debate and the roles they play: offering a look, for example, at the growing cottage industry of Islamist expert witnesses who can command at least $200 an hour for their testimony. Or the (mostly non-Muslim) jurors who, so ignorant in their knowledge of Islam, are given crash courses in drawing distinctions between fatwas and fatahs, jihad and hirabah. Or the fractured world of Islamist scholars and clerics, most of whom cannot agree on a common interpretation of the Koran. “When Muslims themselves cannot agree on what so many aspects of their faith mean,” Waldman asks, “how can American jurors?”
A former reporter for The New York Times and The Washington Monthly, Amy Waldman lives in Cambridge, Massachusetts where, in addition to her work for The Atlantic Monthly, she is also a fellow at the Radcliffe Institute for Advanced Study. "Prophetic Justice" is her first Atlantic piece. We spoke by phone on September 7, 2006.
How did you become interested in Hamid Hayat’s case?
I read news reports on it around the time he was arrested. I had just moved back to California, and had spent time in Pakistan as a reporter, so I was intrigued by his case. Separately I started looking at cases—the al-Timimi case, for example—that dealt explicitly with questions of speech. In looking at all these different cases, I was surprised at the way in which religion was being used and how central a role it played during all the trials.
How did this case stand out from the others?
They’re all different. But Hayat’s case was an especially good example of preemptive prosecution. I didn’t necessarily realize that at the outset, but once I started looking at it more closely, it became increasingly clear that that’s what was going on.
Like so many others (the Ali al-Timimi case, for example), this story involves a kind of intercultural struggle. Do we know anything more about Hayat’s background—his family, his education—that might provide clues as to how his life took this course?
"The Education of Ali Al-Timimi" (June 2006)
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Actually, quite a bit emerged about him and his family during the trial. His grandfather is a very well known conservative cleric in Pakistan. His father came to Lodi, California, in the 1970s and drove an ice cream truck for a living and, like many immigrants, kept very strong ties to Pakistan. Hamid Hayat himself lived in Pakistan as a youth—maybe from the age of nine to eighteen or so, if memory serves me correctly—with his extended family there. To me, he really seemed to be straddling two worlds. At some point, he expressed interest in becoming an imam, for which he spent some time working at the mosque in Lodi, but he didn’t seem to be actively pursuing that. He didn’t really seem to have a focus. He went back to Pakistan in 2003 to find a wife, a pretty common move for a lot of South Asian immigrants, and to tend to his mother, who was seeking medical care. But one definitely gets the sense from the trial that he wasn’t up to much over there, and obviously the central question is whether he attended the terrorist training camp during that visit.
So we’re not even sure he ever attended a training camp. But let’s say he did go. Is it possible that that decision could have been an arbitrary one? As if he just made it on a whim?
In fact, that’s what he tried to tell the FBI at one point—that he went to the camp but didn’t know what it was. So it’s really hard to say. He did not come across as a planner. Even the jurors and the prosecutor agreed that he was not a proactive kind of person. If he had been participating in something—a question I think is still murky—his role was most certainly that of a foot soldier. That’s even how the prosecutor put it.
This is kind of reflected, I think, by Hayat’s relationship with the FBI informant. The informant was quite a bit older—maybe in his mid thirties—and as Hayat was not a worldly person in any way, He seemed impressed by the informant’s sophistication. I wish I’d had the space to get into it in the piece because the relationship between the two of them revealed a lot. Naseem Khan, the informant, has said that his instructions from the FBI were to pose as an extremist and to really encourage Hayat to engage in conversation. This raises the specter of entrapment. But the FBI and the prosecution believed that if someone is in fact willing to engage in such conversation, then that’s a fair indication that there may be something worth investigating further. The FBI and the prosecution felt it was totally legitimate for Khan to have encouraged Hayat to engage in extremist rhetoric for this reason.
Hayat was hard to read in that he boasted and bragged a lot, but much of what he said was not true. He clearly held opinions that most Americans find reprehensible, but does that mean he would act?—and are beliefs a reliable way to judge someone’s intent to do so?
So for all we know, that could have been the first such conversation he’d ever had? Theoretically speaking?
I doubt it. The defense—I thought this was interesting and having spent time in Pakistan I don’t think they’re wrong—tried to make the argument that people in Pakistan have these kinds of conversations all the time. Anti-Americanism is very common there. A lot of people don’t think the Taliban are evil in the way we do. So, I wouldn’t assume that he didn’t hold those opinions—I think he probably did. He’s coming from a very different cultural context. I think the jury probably thought, “Well, he’s living in America now. That kind of talk doesn’t fly here.” But it’s important to remember that in Pakistan, where he had spent so much time, his thinking is not necessarily abnormal.
You note in the piece that Hayat’s confession to the FBI was “as irresolute as his life.” Let’s say Hayat made a false confession. What might have been his motivation for doing that?
If he did make a false confession, he probably didn’t realize what the implications of doing that would be. I also think he was expressing a certain amount of deference to authority. When you listen to or watch the confession, you get the sense he was simply saying what he thought the agents wanted to hear. At the end of questioning, Hayat invited one of his interrogators to his wedding. This is to say, I just didn’t get the sense that he quite realized what was at stake. On top of that, the FBI was also interrogating his father at the same time, and part of their strategy seemed to hinge on using each against the other. “Your father said you did this. If you don’t want to get both of you in trouble, you need to come clean with us now.” And vice versa. But it’s a real mystery, to be sure. The jury certainly believed it was a real confession, though I think many of us watching the trial were more skeptical.
And the taped confession is, by nature, very forced. Here you have the FBI asking Hayat all these leading questions, on the premise that Hayat had already confessed off camera so they were just recreating what had originally transpired. There’s no record of the off-camera confession—no transcript or video. The point of the taped confession is to just get it on the record. Still, the questioning does come across as extremely leading. It’s tough.
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.
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.
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