A federal judge has agreed to hear new evidence in a California terrorism case notorious for the government’s false claims that it had uncovered an Al Qaeda sleeper cell in rural America.
Lawyers for Hamid Hayat, a 34-year-old Pakistani-American convicted after one of the first post-9/11 terrorism investigations by the FBI, will be able to present evidence to support his claim that he is entitled to a new trial because his lawyer failed her client.
“Finally, after 11 years, the bankruptcy of this conviction is going to be exposed at this hearing,” said Dennis Riordan, Hayat’s appeals lawyer. “It’s going to be obvious that, not only should he have prevailed at trial, but that he’s factually innocent.”
Hayat’s appeals lawyers claim that his trial lawyer, Wazhma Mojaddidi, failed her client in several ways, including not calling alibi witnesses, not applying for a security clearance to see the government’s evidence against her client, and not having her client testify.
A spokeswoman for the U.S. Attorney’s Office for the Eastern District of California declined to comment on last week’s court order. Mojaddidi did not return calls to her law office. Hayat’s appeals lawyer said that he’d sent the decision to Hayat but hadn’t heard back from him.
The case was the subject of a November 2016 series in The Intercept that uncovered new evidence in the case, including doubts about the credibility of the government’s undercover informant and expert testimony about the terrorist training camp Hayat is alleged to have attended.
In the court order filed on Wednesday, U.S. Magistrate Judge Deborah Barnes wrote that Hayat’s claims about his trial lawyer “raise serious questions concerning the competency of the defense.”
Stanford Law Prof. Robert Weisberg, a criminal law expert who has written critically about the performance of Hayat’s trial lawyer, called the judge’s decision to hear new evidence “significant.”
“It’s a pretty striking opinion, very well reasoned,” Weisberg said.
No date has been set for the evidentiary hearing. A status conference in the case will be held on June 23 in federal court in Sacramento to discuss logistics and a hearing date. At that time, the court will also consider defense claims that prosecutors withheld key evidence, including information about the terrorist training camp.
Hayat’s case began in the fragile days after the September 11 attacks. The FBI sent an undercover informant to a mosque in the rural Central Valley town of Lodi, California, after the informant, a Pakistani immigrant named Naseem Khan, told the FBI that he’d seen Al Qaeda leader Ayman al-Zawahiri praying at Lodi’s mosque. Khan’s claim turned out to be false, but Khan continued providing information to the government and turned his focus onto Hayat, then 19.
Khan befriended Hayat and told agents that Hayat planned to attend a jihadi training camp in Pakistan. Khan secretly recorded conversations in which Hayat made disturbing statements, including saying that he was pleased about the death of Wall Street Journal reporter Daniel Pearl, who was kidnapped and killed by terrorists in Pakistan. In the spring of 2003, Hayat left California to visit family in his ancestral village in Pakistan.
He was arrested in 2005, a few days after he returned to the United States. He was accused of attending a jihadi training camp in Pakistan and lying to the FBI during an interrogation. Hayat’s father, Umer Hayat, an ice cream truck driver, was also arrested and accused of lying to the FBI.
The case made national headlines after the FBI announced that federal agents had uncovered an Al Qaeda cell in Lodi, the rural Central Valley community where the Hayat family lived. The director of national intelligence at the time, John D. Negroponte, testified to Congress that the Hayat case was a prime example of a “homegrown jihadist cell.” But later, then-U.S. Attorney McGregor Scott said in an interview that there had never been an Al Qaeda cell in Lodi.
In 2006, a jury heard Hayat’s case. During opening statements, then-Assistant U.S. Attorney Robert Tice-Raskin described Hayat as a man “with a jihadi heart and a jihadi mind.” A jury convicted Hayat, and a judge sentenced him to 24 years in prison.
Hayat has maintained his innocence, claiming that he never attended a training camp and that he spent his time in Pakistan visiting family and playing cricket video games. His appeal has slowly wound its way through the court system. In 2013, when an appeals court decided to uphold Hayat’s sentence, Ninth Circuit Judge A. Wallace Tashima sharply disagreed with his colleagues’ decision, writing, “This case is 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.’”
The case continues to be controversial in Lodi, which has long been home to a community of Pakistani immigrants. Many felt their community was unfairly targeted after September 11.
Taj Khan, a retired engineer and a leader among the Pakistani community, has long advocated for Hayat’s release. Reached by phone, he said that he plans to attend the hearing. “I’m so glad that somebody is looking into it because the guy is sitting in jail, wasting his life away at taxpayer expense, and this injustice needs to be corrected,” Khan said.