The government’s case against Hamid Hayat relied on the testimony of a troubled FBI informant — whose own mother said he was “a bagful…
Nazhat Shaheen has twice endured the loss of her first son.
The first time she lost him, he was a newborn. Soon after she gave birth in her native Pakistan, her in-laws took her son, Naseem, during a contentious divorce from her husband. Her own parents then sent her to the United States, to begin a new life.
The second time she lost Naseem, he was a young man who had moved to the United States and reunited with her. But she began to suspect that Naseem could not be trusted, and after a few months, he left her home in the Midwest and drifted to the West Coast.
He would not disappear from her life, however.
Shortly after 9/11, the FBI hired Naseem to spy on a mosque in California, and he subsequently became the government’s star witness in the trial of Hamid Hayat, a hapless cherry packer accused of being a member of an al Qaeda sleeper cell in rural America. When Naseem’s mother read about her son’s role as an informant, she wrote a letter to Hayat’s lawyer saying that Naseem was “a bagful of lies.”
Shaheen has never spoken publicly about her son and his crucial role in one of the most infamous terrorism trials of the post-9/11 era, but not long ago she agreed to talk with me. We met at her home, and because her community does not know what her son did in the case, I agreed to use only her maiden name.
“I’m convinced that Naseem is a deceitful character,” she told me. “What he did with Hayat is so deceitful. It’s an injustice, the fact that it seems to me that he again deceived a family by taking them into his trust.”
A mosque under surveillance. An FBI informant with a troubled past. A young American Muslim accused of traveling to a far-off place to train for terrorism. The Hayat case began in the fragile weeks after 9/11. Now, as President-elect Donald Trump prepares to take office, the case has new resonance. Trump has demanded that Muslims inform on one another. He has threatened to kill terrorists’ families. He has promised to waterboard and torture terrorism suspects.
The country first heard the story of Hamid Hayat in the summer of 2005, when the FBI announced that it had broken up an al Qaeda sleeper cell in Lodi, California. Hayat was the son of an ice cream truck driver, and he was repeatedly described by family and acquaintances as an idle young man whose mental capacity had been slowed by a nearly fatal bout of meningitis. His arrest immediately brought the national media to the small city, choking its usually calm streets with television trucks. A CNN headline blared “FBI: Al Qaeda plot possibly uncovered,” and warned that the plotters were “trained on how to kill Americans.” It was one of the most frightening cases of terrorists in America since 9/11, and much of the media treated the FBI’s charges with little skepticism.
At Hayat’s trial the following spring, a jury heard testimony by Naseem Khan, who was paid to inform on Lodi’s mosque. The jury deliberated for nine days before convicting Hayat of material support to terrorism and lying to the FBI. At the start of a press conference, U.S. Attorney McGregor Scott celebrated the conviction by pumping his fist in the air, local press reported. A federal judge sentenced Hayat to 24 years in prison. The Hayat case was a test for a controversial new government strategy of pre-emptive prosecution — a strategy that centered on using paid informants to coax terror suspects into making statements about what they might do someday — and it appears to have been deeply flawed.
Almost as soon as the spotlight shifted away from the conviction, the case began unraveling. Two days after the verdict, a juror gave a sworn statement that other jurors had bullied her into convicting Hayat, inflicting such severe pressure on her that she had to be treated for migraines during the trial. She said the jury foreman had made “racial slurs,” including saying of Muslims, “If you put them in the same costume then they all look alike.” She added that on the second day of the trial, the foreman had made a hangman’s gesture, as if he were tying rope around his neck, and said, “Hang him.”
That was the first of several remarkable twists. A few months later, the prosecutor admitted in a televised interview that al Qaeda never had a sleeper cell in Lodi. Hayat appealed his conviction, and though it was upheld, one of the appellate judges penned a scathing dissent, writing that the case showed the “unsettling and untoward consequences” of the government’s anti-terrorism strategy. Hayat’s appeals lawyer accused his original lawyer of failing her client. Hayat’s case had been her first criminal case, her first jury trial, and her first time cross-examining witnesses in federal district court, a notoriously difficult skill.
Most surprising to legal experts and even the trial judge, Hayat’s lawyer never applied for national security clearance, which meant she couldn’t see any of the classified evidence against him. As a result, the prosecutor and judge evaluated, on their own, the classified evidence that the jury heard. This appears to have resulted in the jury not being told about information in a classified government memo I obtained through the Freedom of Information Act that undermines the government’s case against Hayat.
Since I began researching this case in 2014 for the Investigative Reporting Program and The Intercept, I’ve uncovered a number of reasons to doubt whether Hayat received a fair trial. The key concerns surround the informant, Naseem Khan, whose own mother now attests to his untrustworthiness. The government’s case was based largely on Khan’s testimony and the conversations he recorded, even though his integrity was questionable and he was incentivized to find or suggest something that could be used against Hayat.
There is also fresh doubt about a key issue at the heart of this case: Did Hayat receive training at a terrorist camp in Pakistan? At trial, prosecutors tried to buttress Hayat’s equivocal statements with satellite images of a mountaintop facility where they alleged he had trained. But the memo I obtained shows the government’s intelligence experts disagreed about what camp he attended. This casts doubt on the government’s confident assertion that Hayat had indeed attended a terrorist training camp.
In response to these new questions, prosecutors declined to comment, other than to describe outreach efforts in the Muslim community where Hayat grew up.
To understand Hayat’s case, it’s essential to get a sense of his community. Driving in, Hayat’s hometown of Lodi looks like a typical Central Valley town. Fields of wheat, corn, and grapes give way to a Wal-Mart and a Target, car dealerships, and strip malls of Panera Bread, Starbucks, and In-N-Out Burger. Downtown, leafy sycamore trees shade wide boulevards. The building facades look like the set of a western frontier film. Several restaurants offer tastings of local zinfandel wines. A restored, bright yellow train station hints at the town’s origins as a stop on the Central Pacific Railroad.
But drive a mile southeast of downtown, and Hayat’s world comes into view. Tucked next to a city park is the Lodi Muslim Mosque, a low building ringed by a black fence and rose bushes. It’s here, in a series of streets named for trees — Poplar, Maple, Cypress — where Hayat lived with his parents, brother, and two sisters in a tiny yellow house on Acacia Street, a five-minute walk from the mosque. Here, men in traditional Pakistani robes arrive each day for prayers. The houses are modest. Many women wear hijabs. Many speak little English.
Hamid Hayat’s father, Umer, had joined this stream of immigrants in 1976, leaving his ancestral village, a farm town of a few thousand people called Behboodi. He found work as the local ice cream seller in Lodi, driving the streets in a van that tooted “Pop Goes the Weasel.” He returned to Pakistan briefly, where he married the daughter of a revered Islamic scholar, and brought his bride back to Lodi, where they raised four children. Like others in Lodi’s Pakistani community, though, the Hayat family lived between two worlds — their new American life and their Pakistani homeland.
Umer Hayat hoped his eldest son, Hamid, would become an Islamic scholar like his grandfather. In 1991, when Hamid was in elementary school, his father plucked him out of Lodi and sent him to live with his grandparents in Pakistan to study the Quran. He remained there until 2000, when he contracted meningitis, a brain infection that left him comatose. His family said he never fully recovered and remained mentally disabled and weak. Shortly afterward, his parents brought him back to Lodi.
At 19, Hamid seemed headed for a low-wage job and an ordinary life in small-town America. He spent his days watching cricket and wrestling on television. He slept on a mattress in his parent’s garage and worked part time at a mosque in a nearby town. But his path changed the day he met a smooth-talking man named Naseem Khan.
The case against Hayat began with a mistake and a lie.
On October 17, 2001 — barely a month after the September 11 terrorist attacks — two FBI agents got a tip that a Pakistani immigrant in the ski town of Bend, Oregon, might be involved in terrorist financing. There, they found the man they thought they were looking for, Naseem Khan.
Khan, a 28-year-old Pakistani immigrant, worked at a convenience store. The agents questioned him in his apartment and quickly realized they had the wrong Naseem Khan; the surname “Khan” is the “Smith” of Pakistan, and Naseem is a common first name. But during the questioning, Khan broke some incredible news. He turned to the television, which was showing an image of Osama bin Laden and other top al Qaeda leaders. He pointed at the screen and told agents he knew one of the men, Ayman al-Zawahiri. Khan told the agents that he and the al Qaeda leader used to pray at the same mosque in rural California.
This was an enormous claim. If true, it meant that bin Laden’s No. 2 had lived and prayed in rural America. Back then, there was palpable fear that al Qaeda had “sleeper cells” lying in wait throughout the country. The FBI had issued a $25 million reward for information about al-Zawahiri’s whereabouts. Khan told the agents that he was 100 percent sure and could still picture the priest-like al-Zawahiri speaking to the congregation. The agents thought they’d stumbled onto something big. They asked Khan to infiltrate the mosque and gave him a cover story and a code name: Wildcat.
There was just one problem: The story about al-Zawahiri was a fabrication.
It’s not clear why Khan lied. Years later, on the witness stand, he stuck to his story, even as FBI agents testified it wasn’t true. It is clear that Khan stood to gain professionally and financially from the lie. After years of working at Taco Bell, McDonald’s, and making $7 an hour at the K Market convenience store, Khan suddenly landed a full-time job in federal law enforcement. Over three years, the FBI paid Khan nearly $230,000, picking up the tab for all of his expenses, even regular car washes.
Wildcat arrived in Lodi in November 2001. He rented an apartment near the mosque and began sending detailed dispatches to his FBI handlers. He suggested that a local Pakistani grocer was suspect because he was well-connected in the mosque. Another man fell under suspicion because he owned a house where Muslim men gathered on weekends to drink tea and gossip. Khan homed in on two imams, both charismatic scholars from Pakistan who’d caused controversy in the mosque with a proposal to build a new Islamic school. He began hanging around the mosque, offering up his computer services and secretly recording the imams.
That’s how Khan first met Hayat.
Hayat couldn’t believe his luck when Khan befriended him. Hayat, gangly and meek, wasn’t part of the popular crowd. Khan, square-jawed and confident, pretended to take the teen into his confidence. Hayat should have been suspicious — Why would a man nearly 10 years his senior, an educated man with an apparently well-paying job and a flashy sports car, want to spend time with a 19-year-old loafer? Instead, Hayat spilled his feelings to Khan and invited him into his parents’ home, where Hayat’s mother cooked Khan homemade beef curry and his father treated Khan as a surrogate son.
Hayat and Khan talked for hours, mostly in Urdu and Pashto, and Khan recorded at least seven of these conversations. I obtained copies of these tapes and FBI translations. Much of their meaning depends on the listener. Are these the dark innermost thoughts of a jihadi or the ramblings of a troubled teen desperate to impress? What is clear is this: Khan posed as a radical Islamist, and he flattered and encouraged his target, praising Hayat’s wisdom and knowledge of Islam.
Hayat easily fell into the trap. He bragged about his family’s political ties, telling Khan that his grandfather was so influential that Pakistan’s president sent him to Afghanistan after 9/11 to negotiate with the Taliban to turn over Osama bin Laden. He claimed to know several jihadi fighters because they’d studied at his grandfather’s school. He bluffed about being a seasoned fighter himself, concocting an apparent tall tale that he’d helped throw stones to smash windows in a Taliban attack. He told another seeming lie about being held in a Pakistani jail for passing counterfeit money. He gleefully celebrated the gruesome beheading of Wall Street Journal reporter Daniel Pearl, who had been kidnapped by Pakistani militants, declaring, “Now they can’t send one Jewish person to Pakistan.”
During their conversations, Khan probed Hayat for information about terrorist training camps. He gave Hayat a hypothetical. Suppose Khan wanted to go to Pakistan to get jihadi training. How would he do that? Hayat replied that he’d watched a video online about training. He said he’d heard that there were camps near Pakistan’s disputed Kashmir region. He suggested that Khan could make contact with Hayat’s grandfather. Hayat said he’d like to go for training, too. It remained a hypothetical until the Hayat family decided to return to Pakistan in 2003 with plans to find a husband for one of their daughters and a bride for their oldest son.
By the time the family left for Pakistan, Khan had woven himself even deeper into their lives. When Hamid’s younger brother, Arslan, wanted to buy a laptop to take to Pakistan, Khan offered to help and took him shopping. Khan learned that the family planned to take a lot of cash to Pakistan — remittances from other Lodi families as well as money that Hayat’s family had stashed away for the weddings, close to $28,000. Khan secretly notified federal officials about it, and at Washington Dulles International Airport, U.S. Customs and Border Protection officers pulled the family out of the security line and confiscated the cash. Unsure what to do, Hayat made a call for help to a trusted friend — Naseem Khan.
When Hamid Hayat arrived in Pakistan, Khan waited for him to get terrorist training. Khan called Hayat’s cellphone and the family’s landline to check in with him. Throughout that summer, Hayat offered up excuses about why he hadn’t yet gone to a camp. It was too hot, he told Khan. The political climate in Pakistan had changed, and it was too difficult to go, he said. Khan began to get frustrated. Stop wasting time, he told Hayat, after the teen said he was staying in the village to care for his ailing mother. Eventually, having had enough, Khan threatened Hayat.
“God willing, when I come to Pakistan and I see you, I’m going to fucking force you to, get you from your throat and fucking throw you in the madrassa, in your grandfather’s madrassa,” Khan said in one of the recorded conversations.
“I’m not going to go with that,” Hayat said.
“Oh yeah, you will go,” Khan told him. “Yeah, you will go. You know what? Maybe I can’t fight with you in America, but I can beat your ass in Pakistan, so nobody’s going to come to your rescue.”
While Hamid lazed around the village that summer, playing cricket video games, Khan cozied up to his father, who had returned to Lodi from Pakistan. Khan pretended to empathize with the father’s fears that his son would never become an Islamic scholar. Finally, in a conversation in July, Hamid’s father told Khan that he had good news. That November, after Ramadan, Hamid would enroll in a religious school and get “training.” Here, again, the narrative diverges. Hamid’s father later said that he meant his son would receive religious training at school. Khan testified at the 2006 trial that the father meant jihadi training at a militant camp.
In fact, though Khan tried to get Hayat to talk about militant training over the phone, Hayat never said he had attended or had plans to attend a camp. Quite the opposite. In their last phone call, on October 7, 2003, Hayat told Khan that he “never intended on going to a camp.”
What happened to Hayat in Pakistan from October 2003 until May 2005? Here again, there are two different narratives. In the FBI’s version, Hayat went to visit his grandmother in a nearby city sometime around November 2003, where he hopped a bus headed for the border with Kashmir. He got off near the town of Balakot and hiked up a path that zigzagged into the mountains, where he joined a terrorist training camp. After months of training, he received orders to return to small-town California and await instructions from the local imams to launch a terrorist attack.
Hayat’s version is much less dramatic. He maintained that he played video games, watched American movies, and hung out at the local snack shop with his friends. Each night, he joined other village men to gossip. He accompanied his mother to doctor’s appointments, went to a friend’s wedding, and briefly attended a religious revival meeting of a Muslim missionary group called Tablighi Jamaat.
In March 2005, Hayat took his first major step toward adulthood. In a large ceremony, he married a woman from his village. He wore a garland of yellow, red, and white flowers, a flowing white robe, and an intricately stitched red cap. His bride wore a sparkling red and gold ensemble. Two months later, Hayat and his mother boarded a flight to the United States with plans for Hayat’s new bride to come to Lodi once he’d settled back in and arranged immigration papers for her.
But that ordinary life never happened for Hayat. He’d been added to the U.S. government’s no-fly list, created after the 9/11 attacks for people banned from flying into or out of the United States on commercial aircraft. When U.S. officials learned he’d boarded a plane heading for America, they notified the airline, which quickly diverted the flight to Tokyo. There, an FBI agent questioned him, and Hayat denied attending a terrorist training camp. Hayat was then allowed to board a different flight to San Francisco. He thought the ordeal was over.
When Hayat arrived in Lodi, he set about getting his life in order to prepare for his new bride to join him. Through a friend, he found work at a local fruit-packing plant. His efforts to create stability abruptly ended on June 3, 2005, when FBI agents knocked on his door and asked if he’d mind answering a few questions.
The next morning, Hayat and his father headed to the FBI’s Sacramento office for an interview. They went voluntarily and without a lawyer. Agents walked Hayat back to an interrogation room, and his father waited in the lobby. It was about 11:30 a.m. Hours went by. No one recorded that part of Hayat’s interrogation, but agents later said they questioned him about whether he’d attended a terrorist training camp. When he said he’d never received training, they asked him to take a polygraph, which investigators said he failed. (Although often portrayed in films and television as infallible, polygraphs, popularly known as lie detectors, are typically not admissible as evidence in court because of doubts about their accuracy.) At the time, Hayat’s father, still in the lobby, knew none of this. Nonetheless, when he didn’t hear anything, he started to worry, smoking cigarettes to calm his nerves.
It was nearly 5:00 p.m. before agents turned on the video camera and recorded any of their conversation with Hayat. The camera peered down on Hayat from a perch in the corner. The room looked small and austere, a carpeted office with a cluttered desk. No artwork or windows appeared in the frame. Two agents, both with close-cropped hair and both wearing button-down shirts, faced Hayat, who sat against the wall in a cushioned chair of the sort found in a dentist’s waiting room. Hayat’s shoulders hunched forward, his ankles crossed, his arms threaded tightly under his left leg. When he spoke, his voice sounded soft and timid, his accent thick. He still wore a visitor’s badge clipped to his T-shirt. Throughout the interview, he seemed confused about what to do with his hands. He sat on them, then bit his nails, then grabbed at his neck. He seemed both nervous and eager to please.
The agents tried to build a rapport. They told Hayat that they knew a lot about training camps, and that they understood it was common for people to go for training in Pakistan. They tried to make it seem casual and no big deal. The agents did much of the talking. Hayat mostly nodded his head and gave short answers.
He tripped over simple words and idioms, his English rusty after two years of speaking Urdu and Pashto, and there was no translator. What is “martyr”? he asked. What are “marching orders”? What is “GPS”?
Hayat gave multiple, conflicting stories about attending a training camp. He told the agents that he’d gone to the training camp twice — once in 2000 and again sometime in 2003 or 2004 — something he’d never mentioned to Khan. He gave the agents several locations for the camp — first he said it was hidden in a forest near Balakot (the place he’d told Khan he’d seen in an online video), but later he said it was hundreds of miles away in Afghanistan’s Tora Bora region, and then he told them that it was actually hidden just a few miles from his family’s village in northern Pakistan. He also gave conflicting stories of the time of year he trained and said it was both the hot season and the cold season.
At one point, the agents pulled out a map of Pakistan. They began to be visibly frustrated.
“I’m trying to make the stories come together here,” one agent said. “So be, be very descript [unintelligible] in the places that you’re talking about and make sure, make sure you’re, you got this right.”
Hayat made himself out to be a dismal jihadi. He said he only saw four weapons at the camp — one shotgun, two pistols, and a machine gun. He said he shot a pistol, but that his aim was so bad that camp workers never taught him to reload and instead assigned him to the camp’s kitchen, where he spent his days washing vegetables and chopping onions. The training usually lasted five months, but after three months, he’d had enough and ran away.
As the agents questioned Hayat, he didn’t know that his father had been brought from the lobby to another interrogation room for questioning. The room was identical to Hamid’s interrogation quarters. Two agents sat just a few inches from his father in swivel chairs. One agent leaned in close. The other slouched back, his legs stretched toward Umer Hayat. The agents said his son had admitted attending a training camp, but they tried to downplay the seriousness of the situation. They told Umer that they understood that attending a training camp was a normal part of life in Pakistan. One compared Umer’s visit to the camp to a parent inspecting a potential college campus.
Unlike his reserved son, Umer spoke animatedly, waving his arms and talking loudly as he described a visit to the training camp. He described how he watched as 1,000 fighters wearing masks like “ninja turtles” pole-vaulted “like 50 feet” in the air and sliced swords through dummies decorated with photos of President George W. Bush and other American leaders. He contradicted his son’s story when he told the agents that the camp was hidden in a large underground basement near his father-in-law’s religious school near Rawalpindi, a metropolis of close to 2 million people.
Meanwhile, the other agents continued to question his son, focused on what types of targets he had received orders to attack. When he didn’t give them an answer, they asked what type he might attack, if he ever got such an order.
“Like buildings, and I’ll say buildings,” Hayat said.
“What kind of buildings?” the agent asked.
“Bigger buildings, you know, buildings,” Hayat said.
“OK, financial buildings? Ah, private buildings? Commercial buildings?” the agent said.
“You know, commercial projects and like those kind of buildings, I’ll say,” Hayat said.
This exchange continued until the agent, sounding frustrated, said, “But I need to you tell me details about targets, what they said, you know. And, this is where I need your memory to come back.”
“Like I said, sir, you know, big buildings, and, you know, like hospitalities [sic] and, you know, finance buildings, banks and, what’s it called, ah, hmm, maybe like, you know, uh, stores, stores,” Hayat said.
“What kind of stores?” the agent asked.
“Stores, like food stores, anything like that,” Hayat replied.
The interrogation ended around 3 a.m. Hayat complained that his head hurt, and he said he wanted to go home to get some sleep.
“No, no you’re not going to go, you’re going to jail,” one agent said.
Confused, Hayat asked the agents if the jail had a place for him to sleep. At that, the tape ended.
Hayat was booked into the Sacramento County Jail. Meanwhile, the agents hatched a plan to use Hayat’s father, Umer Hayat, as bait to try and hook their main targets, the two Lodi imams. The FBI believed that the imams, Muhammad Adil Khan and Shabbir Ahmed, posed a danger because they planned to create an Islamic school in Lodi, but the FBI didn’t have evidence to criminally charge them. In the middle of the night, agents attached a body wire to Hayat’s father and sent him to talk with the imams. He showed up, unannounced, at each imam’s residence and began crying and talking frantically about Hayat and training camps. The plan failed. Neither imam said anything incriminating. Agents brought Umer Hayat back to the FBI and arrested him. Later that day, both imams were taken into custody on immigration charges, but they never faced any terrorism charges.
By then, the Hayat family in Lodi hadn’t heard from the father or son since they left for Sacramento to talk to the FBI. The family and community leaders grew so concerned that they contacted the local office of CAIR, the Council on American-Islamic Relations, a civil liberties group that advocates for Muslims. CAIR reached out to one of its volunteers, a lawyer named Wazhma Mojaddidi. She was 31 years old and had only been a lawyer for about a year and a half — after passing the bar exam on her third try — and took mostly family and immigration cases. She’d never had a criminal case or a jury trial.
But she was a refugee from Afghanistan, an Urdu-speaker from the same Pashtun tribe as the Hayats, and she wanted to help. It’s a decision that would haunt her — and the Hayat family — in the years ahead.
A summary of Hayat’s trial reads like a law school exam question, a litany of issues at every turn, from allegations of jury misconduct to a possible false confession to whether his lawyer was equipped to represent him. But, at its core, the Hayat case was about one thing: Did Hayat receive terrorist training in Pakistan in preparation for an attack in America?
At trial, prosecutors offered no physical evidence that he attended a terrorist camp. They had no eyewitnesses, no video, no photographs of him at the camp. They zeroed in on four satellite images of the alleged camp. That sounds clear, simple. But, according to a government memo about its witness preparations that I obtained through a Freedom of Information Act request, just a few weeks before trial, the government’s own experts still couldn’t agree on what camp Hayat attended, something Hayat’s lawyers say they were never told.
About two weeks before trial, prosecutors met in Sacramento with an analyst from the National Geospatial-Intelligence Agency, which works closely with the CIA to analyze satellite imagery. The NGA analyst planned to testify about satellite images of a location that matched the coordinates for the Kalas Camp, a militant training facility that seemed to fit Hayat’s first description of the camp. It was located a few miles outside of Balakot, up a zigzagging road through a dense forest. An intelligence report by the NGA claimed the camp had closed in 2002 but that it reopened in the spring of 2003.
However, a CIA analyst believed that Hayat had attended a different camp, a place called the Ichrian Camp. Ichrian is a small village located in roughly the same region as Balakot. A disagreement among experts may not seem that unusual, except for one thing: The defense never knew about the disagreement and neither did the jury, because the prosecution never disclosed it to the defense.
Instead, at trial, prosecutors presented satellite images that showed the Kalas Camp. They did not name it, labeling it only as in the “vicinity of Balakot, Pakistan,” but they provided coordinates that matched Kalas. The images were not available in the public court file because prosecutors presented them as large exhibits at the trial and took them away afterward, but I received them through a Freedom of Information Act request to the NGA.
The images revealed a landscape of mountains and valleys. Two of the images showed an expansive view, while two zoomed in close. The dates on the photographs seemed arbitrary — two were taken in October 2001, and two were taken in August 2004. No people were visible in any of the images. Each showed a road snaking along a mountain ridge. The road ended at a clearing near a large building. The 2001 images were labeled to show clusters of tents in the forest around the clearing. The 2004 images showed several new small buildings and no tents.
It’s possible that the disagreement about the camps came up in pre-trial hearings about classified evidence, but Hayat would not have heard about it. Because his lawyer did not apply for a national security clearance, she couldn’t view any secret evidence or attend closed hearings about it. In a deposition later, she said she didn’t get a security clearance because it was part of her trial strategy to push the prosecutors to go to trial as quickly as possible. She believed they didn’t have enough evidence to make their case, and that the trial’s start would be delayed by her application for a security clearance — a long, cumbersome process. It’s a move that bewildered the legal experts I interviewed because it meant she couldn’t see the evidence against her client.
Her decision even bewildered the trial judge, Garland E. Burrell Jr., who publicly admonished her during pre-trial hearings, saying, “One has to wonder why you would accept this case, since to litigate in CIPA proceedings everybody knows, just by reading the law, that you have to have such a clearance.” CIPA, the Classified Information Procedures Act, is legislation that lays out the process for using secret information in criminal cases.
When Hayat’s lawyer told the judge that she didn’t apply for a security clearance because the government “never offered and never told us about any specific classified information, [so] we felt there was no need,” the judge responded by berating her, describing her response as “incredible.” After all, she knew that the judge and prosecutors had been participating in classified hearings to discuss this secret evidence.
“Why do you think the government has been conducting CIPA hearings?” the judge asked. “What do you think we’ve been doing at CIPA hearings?”
It’s impossible to know what happened at those secret hearings, but it is clear that prosecutors believed the judge would see things their way. In the memo where the prosecutors mentioned the dispute among the intelligence analysts, they also talked candidly about the judge. The prosecutors described him as having a reputation for “trusting the prosecution on classified issues” and explained that he was new to national security cases and “looks to the prosecution for guidance and will accept it, if he believes it is grounded in the law.”
On appeal, however, the case came across the desk of a judge who was far more skeptical.
Judge A. Wallace Tashima came of age during another fearful time in America. A child during World War II, Tashima and his family joined the thousands of other Japanese-Americans forced into internment camps. After his release, he excelled in school, eventually graduating from Harvard Law School and becoming the first Japanese-American on the United States Courts of Appeals.
In a 1995 interview, he told the New York Times that his internment had a profound effect. “I’m still keenly aware that the government can make mistakes, and probably more conscious than I otherwise would have been of the persecution of minorities,” he said.
Tashima, who works from the 9th Circuit’s court in Pasadena and is known for a stern but grandfatherly presence on the bench, has been openly critical of the impact of the war on terror, particularly for the rights of the accused. “The war on terrorism threatens to destroy the very values of a democratic society governed by the rule of law,” he said at a 2004 conference at the Japanese American National Museum in Los Angeles.
A panel of three judges heard Hayat’s appeal. Two upheld his conviction, but Tashima wrote a scathing 26-page dissent. He called the case “a stark demonstration of the unsettling and untoward consequences of the government’s use of anticipatory prosecution as a weapon in the ‘war on terrorism.’” He chastised the trial judge for the “patent unfairness” of preventing testimony on Hayat’s statement to Khan that he never attended a training camp.
Most of all, he gave Hayat and his new legal team a reason for hope.
Documents published with this story:
Abbie VanSickle is a reporter for the Investigative Reporting Program at University of California, Berkeley’s Graduate School of Journalism. She also trained as a lawyer and practiced in Washington state.