LOS ANGELES — It’s been nearly seven years since Hamid Hayat, the American-born son of a Pakistani ice cream truck driver, was sentenced to 24 years in prison by a Sacramento, Calif., judge for intending to wage violent jihad.
Hayat, who allegedly attended a jihadi training camp in Pakistan, had been indicted under a law that makes it a federal crime to knowingly provide material support or resources in preparation for or in carrying out specified crimes of terrorism.
The statute — Title 18, U.S. Code, Section 2339A — has become a key legal weapon in the U.S. government’s anti-terrorism arsenal. It allows law enforcement to prosecute people on the theory that even though they have not actually committed a terrorist act, they had the mental intent to do so.
“Hamid Hayat had a jihadi heart and a jihadi mind,” a prosecutor told the jury that in April 2006 convicted him of violating Section 2339A.
The 9th U.S. Circuit Court of Appeals affirmed the jury’s verdict in March 2013, but one member of the three-judge appeals court panel, legal scholars and at least two national magazines have expressed doubts about the case and the “anticipatory” or “preemptive” prosecution law under which Hayat was charged.
“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,’” Judge A. Wallace Tashima wrote in his dissenting opinion in the case of U.S. v. Hayat.
He faulted the trial judge for “preventing Hayat from introducing exculpatory evidence” and “allowing inflammatory expert testimony that usurped the jury’s role as finder of fact.”
The key evidence against Hayat included a note written in Arabic that government agents found in his wallet. Khaleel Mohammed, a professor of religion at San Diego State University who testified for the prosecution, said it was an Islamic supplication that means, “Oh Allah, we place you at their throats and we seek refuge in you from their evils.”
Echoing Tashima’s concerns, Professor Robert M. Chesney of the University of Texas School of Law said in a law review article that the case “epitomizes the anticipatory prosecution strategy and the tension it generates between the benefits of [crime] prevention and the costs of potential false positives.”
The Section 2339A charge against Hayat “functioned as a sweeping form of individual inchoate crime liability,” he concluded.
Hayat, 31, is currently housed at a federal prison in Phoenix and, with his appeal having been denied, his prospects for exoneration appear slim. But Dennis Riordan, one of the top appellate lawyers in California, continues to work on his behalf.
“We’ve determined that he’s completely innocent of the charges,” Riordan told MintPress News in an interview.
In a new bid to overturn Hayat’s conviction, Riordan argues that Hayat’s trial lawyer, Wazhma A. Mojaddidi, made numerous errors that deprived Hayat of his constitutional right to effective representation. At the time she defended him, she had practiced law for less than two years and, according to Riordan, had no criminal law experience.
“An attorney who is 18 months out of law school couldn’t possibly litigate this case competently,” Riordan said.
Preemption strategy
Section 2339A is one of two “material support” laws that Congress passed in the wake of the February 1993 attack on the World Trade Center.
While Section 2339B targets those who aid designated terror groups, 2339A authorizes prosecutions of “unaffiliated” suspects. Both laws define “material support” broadly to mean financial services, training, expert advice, false identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel and transportation.
“These provisions can be used to impose punishment for conduct remote from the commission of criminal harms, often conduct involving minimal and outwardly non-criminal acts,” Professor Norman Abrams of the UCLA School of Law noted in a law review article.
The laws became particularly important after the 9/11 terror attacks, as the Department of Justice and the FBI adopted a strategy to preempt acts of terror before they occurred rather than simply investigate them after the fact.
“Prevention is the goal of all goals when it comes to terrorism because we simply cannot and will not wait for these particular crimes to occur before taking action,” then-Attorney General Alberto Gonzales said in 2006.
Those prosecuted under Section 2339A include attorney Lynne Stewart, who was convicted in 2005 of relaying messages to followers of an Egyptian cleric accused of plotting terror attacks, and Hafiz Khan, a south Florida imam convicted last year of funneling more than $50,000 to the Pakistani Taliban.
Hamid Hayat was working as a cherry packer in Lodi, Calif., when he and his father, Umer Hayat, were arrested in June 2005. He had recently returned from a two-year stay in Pakistan where, according to the U.S. government, he attended a terrorist training camp near Balakot.
The indictment alleged that the younger Hayat violated section 2339A by providing himself as “personnel” to further a future crime of terrorism. He admitted guilt during a lengthy interrogation by the FBI, but his lawyers say the confession was coerced.
The key trial witness against Hamid Hayat was Naseem Khan, an FBI informant who had taped more than 40 hours of conversations they had before Hayat went to Pakistan. At one point, Hayat expressed approval of the execution of journalist Daniel Pearl, saying, “That was a good job they did.”
Professor Mohammed, an expert in Islamic studies, also took the stand. Asked what kind of person would carry the supplication found in Hayat’s wallet, he replied, “A person who perceives him or herself as being engaged in war for God against an enemy.”
The jury deliberated for more than nine days before convicting the younger Hayat. The case against his father ended in a mistrial. The jury foreman, Joseph Cote, told Atlantic Monthlymagazine that the supplication was “quite critical” evidence against Hamid Hayat and dismissed the testimony of a defense expert who said Pakistanis quite commonly carry such a writing, or “tawiz,” to ward off evil.
Hayat “returned to the U.S. ready and willing to wage violent jihad when directed to do so regardless of the havoc such acts could wreak,” U.S. District Judge Garland E. Burrell said at his sentencing in September 2007.
“Disastrous” mistake
The Atlantic Monthly raised questions about “material support” terror prosecutions in an October 2006 article titled “Prophetic Justice,” and Rolling Stone followed suit in February 2008 with “The Fear Factory.”
“For law enforcement, fear and the politics of fear have entwined to create a radical new paradigm,” Rolling Stone’sGuy Lawson wrote.
Responding to that article in a news release, a top FBI official cited Hamid Hayat’s case as one in which “defendants were found guilty, in spite of having some dedicated and talented defense lawyers articulate the same claims Mr. Lawson has swallowed.”
But in a petition for post-conviction relief that was filed last month, Dennis Riordan says Hayat was represented at trial by an attorney who “knew nothing about defending a client in a complex federal criminal proceeding. The lawyer who could overcome that handicap to provide adequate representation in this most difficult of federal prosecutions has not been born.”
Wazhma Mojaddidi speaks Urdu and Pashto, skills that, Riordan says, could have made her a valuable junior member of a defense team. But she could not defend Hayat by herself, according to the petition, and made the “disastrous” mistake of ceding “key decision-making power over strategic and tactical matters” to Johnny Griffin, the far more experienced lawyer representing Hayat’s father.
Riordan argues that Griffin wanted Umer Hayat’s case to go to trial as soon as possible and that Mojaddidi, hamstrung by her co-counsel’s strategy, failed to call alibi witnesses who would have testified that Hamid Hayat was never at a camp near Balakot or anywhere else in Pakistan.
“She was aware …. [that] Hamid had spent the entirety of those two years residing in his home village of Behboodi or staying at his relatives’ homes during his mother’s trips to Rawalpindi for medical care,” the petition states.
According to Riordan, Mojaddidi should also have been able to “eviscerate” Professor Mohammed’s testimony, if not prevent the witness from even taking the stand in the first place.
Expert witnesses, he told MintPress, are barred under the rules of evidence from testifying about a defendant’s state of mind and several Islamic scholars contacted by Atlantic Monthly reporter Amy Waldman told her the “critical” supplication was a “common prayer” that asks for God’s protection from people who may do harm to the believer.
Mohammed’s testimony “should have been excluded or substantially limited, and any competent trial counsel would have objected,” says the petition, which asks Judge Burrell to either vacate Hayat’s conviction and the related sentence or conduct an evidentiary hearing.
Judge Tashima of the 9th Circuit was sympathetic to Hayat’s arguments, noting, among other things, that Mojaddidi failed to object to Mohammed’s “blanket conclusions regarding Hayat’s readiness to ‘engage in war.’”
Riordan sees another tough legal battle ahead. Hayat’s case, he told MintPress, was the Sacramento FBI’s “chance to get into the big time” and a reversal of his conviction would be a “big setback” for the government’s preemptive prosecution strategy.
“It may get ugly,” he added.
Read the full motion below: