Last week, a group of human rights lawyers filed a motion to vacate the sentence of Hamid Hayat, a young American citizen of Pakistani descent who was convicted of planning terrorist attacks on the United States.
In 2007, when Hayat was sentenced to 24 years in federal prison, US Attorney McGregor Scott said, “The threat to our nation demonstrated by the acts of the 9/11 terrorists was brought home with the revelations of Hamid Hayat’s actions two years ago… The many men and women who investigated and prosecuted Hamid Hayat are to be commended for their perseverance and great skill.”
But lawyers now say that Hayat was railroaded by overzealous prosecutors, that the US government suppressed evidence of his innocence and that his case was damaged by an inexperienced defense attorney.
Some background: Just four months after the 9/11 attacks, and five weeks after the FBI released a list of America’s most wanted terrorists, one of the bureau’s paid informants made an unlikely claim: He told his handlers that he’d seen the number two man on that list, Ayman al-Zawahiri — second-in-command of al-Qaeda and Osama bin Laden’s personal physician — at a mosque in the small farming community of Lodi, California.
Four years later, headlines across the country would blare that an al Qaeda “sleeper cell” had been unearthed in Lodi. Five men were arrested in connection to the investigation. Three Pakistani citizens — including an imam of the local mosque who had been “working to mend [strained] relations” between members of his faith and the larger community — were detained on immigration charges and later deported.
The other two arrests were Hamid Hayat, an aimless young man who had visited Pakistan as a 19-year-old, and his father, Umer. Hamid was the only member of the supposed “cell” to face actual terrorism charges — his father was charged with lying to the FBI about his son’s activities, pled guilty and was released after being sentenced to time served.
Hamid Hayat has been languishing behind bars since his arrest nine years ago. BillMoyers.com spoke about the case with Layli Shirani, one of his San Francisco-based attorneys. Below is a lightly-edited transcript of our discussion.
Joshua Holland: Before we dig into Hayat’s case, I wonder if you could put it into the larger context of how the US was approaching these kinds of prosecutions in the years after 9/11?
Layli Shirani: I think the Hayat prosecution is a perfect example of how politics, fear and ignorance can yield tragic results. After 9/11 there was widespread panic about the possibility of further attacks, and this fear gave rise to an Islamophobia that I think persists to this day. The law enforcement and intelligence communities were under enormous pressure to identify possible terrorists, and they relied very heavily on paid informants to infiltrate mosques and other gathering places for Muslims. As far as I can tell this strategy hasn’t been successful in stopping real threats.
I don’t know if you remember the Detroit sleeper cell case or not. Six days after 9/11, the FBI went looking for a suspected terrorist at his last known address. Instead, they found three Middle Eastern men who didn’t know the previous tenant. But on the basis of a day planner that had some doodles, and a video of tourist destinations — Las Vegas, Disneyland — and the word of a cooperating defendant who was in the country illegally, two of the three men were convicted of providing material support to terrorists.
That case blew up when it came to light that the informant had lied to the government, and subsequent investigations revealed that there had been grave doubt expressed at different levels of the Justice Department and law enforcement regarding what the sketches/doodles and the video depicted.
I think that case ushered in a new, unspoken ethos: It was acceptable to prosecute and imprison individuals who had not done anything but speak critically or even tastelessly of the United States. That was the view of the jury foreman on the Hayat case, as expressed to Amy Waldman of The Atlantic. And it was enough to build cases only on questionable evidence, or the word of a paid informant. I think Hayat’s case — and many others like it — was constructed that way.
Holland: Can you briefly summarize the government’s version of events surrounding Hayat’s 2003 trip to Pakistan?
Shirani: In 2003 Hamid Hayat traveled to Pakistan with his family. He returned in 2005. The government’s version is that sometime between those dates, I believe 2004 and early 2005 — they give a one-year period — they alleged that in that period of time, he attended a terrorist training camp.
And then, on the way back to the United States in 2005, they redirected the plane to Japan and he was taken off the plane and questioned, and the FBI agent there determined that he wasn’t a danger and they let the flight continue to the United States.
But when he was back home, he got a visit from the FBI — within I think a day or two of his return — and that was that. He was detained and the charges against him ended up being that he had trained in Pakistan, and returned to the United States with the intent of waging violent jihad against American institutions.
Holland: He got onto their radar after an informant named Naseem Khan fingered him. Tell me about that.
Shirani: Khan was a fast-food worker who was approached by FBI agents looking for a different Naseem Khan. He is arguably the only winner in all of this, if you count his earnings of about $230,000 over four years.
He first told agents that he had seen Ayman al-Zawahiri in a Lodi mosque. This led to another big announcement from the DOJ: the discovery of an al-Qaeda sleeper cell in Lodi. The government now admits that there was never a sleeper cell in Lodi. All that came of that was the prosecution of Hamid Hayat.
Khan was hired by the government and they moved him to Lodi and they set him up, and his primary objective was to find out if the imams at that Lodi mosque were in fact agents of al-Qaeda, or, at any rate, up to no good. And when he didn’t turn up anything, he instead latched onto this young man and became friends with him and his family and began recording their conversations, which basically consisted of political conversation that was somewhat critical of the United States. There was a lot of bluster in that conversation, but none of that, as far as I know, is a crime.
Holland: Khan was an older man, and he was taking this young Hayat under his wing and encouraging him?
Shirani: Yes. I know that Hamid looked up to him.
Holland: Tell me about Hayat’s interrogation.
Shirani: It was surreal. Obviously, he was jetlagged. Throughout the interrogation, he’s yawning and dozing off. And I should say, with no disrespect to my client, that he is not a very intellectually acute person.
By all accounts, and according to affidavits that we recently obtained from family members and friends, Hayat was a guy who is characterized by friends and family members as being very timid and fearful of being alone, of doing anything by himself. He’d had a bad case of bacterial meningitis while in Pakistan that left him especially vulnerable.
So, they put him in an interrogation room with the FBI, and he ends up basically saying, “Oh, I want to help you. What can I do? Tell me.” The interrogation was very leading, to say the least. He was being asked questions about what he saw there, or how many people were there, and it’s clear that here’s a guy who’s trying to guess what the right answer would be. So when he guesses that there were 20 people at the training camp, they say, “Are you sure there weren’t more?” So then he starts saying, “Seventy? Eighty?” You should hear him talking about the guns they used, or what kind of training they received — it’s almost comical.
Holland: He was represented by a lawyer who had never tried a criminal case, much less a complex international terror prosecution. She’d graduated from law school just 18 months before the trial. Did she give him an adequate defense?
Shirani: Sadly, she did not. I mean she really believed in his innocence, and I know that she put a lot of time and a lot of hard work into his case. But unfortunately, she was in no position to give him any kind of adequate defense.
There was a complete failure to investigate. Most of the witnesses who could’ve provided evidence on his behalf were in Pakistan, and his trial attorney didn’t seem to know that she could get their testimony, that she could apply for funding to travel there, or that she could hire an investigator who could get their affidavits, or take their depositions — none of that happened.
The government also came forward sometime early in the case and said that they thought the defense council should fulfill the requirements of the Classified Information Procedures Act. That would allow the trial lawyers — Hamid’s and his father’s lawyers — to see whatever classified information the government had after getting the required security clearances. And in this case, they opted not to do that. They waived their right to see the classified evidence the government had, and we believe that some of that evidence would have been exculpatory.
Holland: And you contend that the camp he was supposed to have visited didn’t even exist at the time.
Shirani: Yes, it certainly appears that way. We’ve talked to several people, including a prominent Pakistani journalist who was covering these movements and had contacts in these camps and had visited these areas. It was widely believed that these camps had stopped functioning by the time Hayat gets to Pakistan. The country was receiving billions of dollars in aid from the United States and they were under great pressure to close down these training camps — even though the training camps in that Balakot region, which is the region where he’s alleged to have attended a camp — those were mainly pro-Kashmiri camps. They had a lot more to do with the conflict in Kashmir than anything else.
In fact, the prosecutors were never able to pinpoint the exact camp that he allegedly went to. The only evidence of a camp that the government presented was in the form of satellite images. A Department of Defense expert on satellite imagery looked at four different images, two taken in 2001 and the others in 2004, I believe, and based on those he said, “Yes, based on my training and experience, these look like camps.”
When he was asked how much conviction he had that these images depicted a terrorist training camp, or a jihadi training camp, he said, “Well, I have a confidence level of 60-70 percent.” And then he basically said that without the confessions he couldn’t say with any certainty what the images showed.
We’re talking about a region that is not very remote — hardly — and it’s not believable that they couldn’t present more evidence of the existence of the camp, if in fact they had it. It also defies logic to think that if they knew of a camp that was training anti-US jihadis, that they wouldn’t have destroyed it and bragged about doing so.
Holland: So it was mostly based on this confession that was taken from an exhausted kid?
Shirani: Well, the government’s case, in addition to the testimony of their informant, was all circumstantial.
There was a scrapbook of articles that Hamid had collected from the Pakistani press. What probably ended up being the most damning for the jury was what the government referred to as a prayer supplication that they found in his wallet. It was written in Arabic, on a folded piece of paper that they found in Hamid’s wallet, and it said something to the effect of “O Allah” — and this is a somewhat disputed translation, but their expert said that it read, “We place you at their throats and seek protection in you from their evils.”
So the government hired this Islamic law professor, somebody who was an erstwhile imam and was also a professor at San Diego State University, who came in and testified that this is a jihadi supplication, that it has no other use. That ended up being very damning for our client.
But right after the trial, real experts on Islamic law and theology — people who also knew about these extremist groups — weighed in. One of them was Professor Bernard Haykel, who was then at NYU and is now at Princeton. And Haykel was able to say that this was just a commonly uttered prayer, and others were able to say that this is part of a very common Pakistani practice called ta’wiz. It’s the practice of carrying some kind of prayer or some kind of writing — sometimes it’s actual words, sometimes it’s symbols — and it’s really just about seeking protection in times of travel.
Holland: You and your colleagues have collected evidence that suggests that Hayat is innocent. Can you run down what you discovered?
Shirani: I think the most compelling evidence of his innocence is that we now have 18 affidavits from friends and family members attesting to his activities and whereabouts during the relevant time period — and by that, I mean the entirety of his time in Pakistan, not just the 12-month time period in which the government alleges he attended a camp.
All of their testimonies are consistent that here was a young man who was not terribly ambitious. He was living in this small village called Behboodi, which was a couple of hours’ drive from Islamabad. It’s a small village where his family comes from originally. And in all of these affidavits, the common thread is that they used to see Hamid very regularly — all the people who lived in the village. Some saw him every day. And those in another village called Rawalpindi said they saw him at least every couple of weeks when he brought his mother there for medical treatment. And in fact, even when he brought his mother to Rawalpindi for medical treatment, his brother was always along, because Hamid didn’t drive.
And another thing that they all say is that he was too afraid to hold a toy gun, much less anything more powerful, and was known by all of them to be fearful of traveling alone. It’s simply impossible that he spent long periods away from these witnesses training in some camp.