[Pnews] For Years, Reporters Questioned the Terror Prosecution of Hamid Hayat. Now He’s Been Freed.

Prisoner News ppnews at freedomarchives.org
Fri Aug 16 10:58:43 EDT 2019


https://theintercept.com/2019/08/16/terrorism-september-11-prosecution/


  For Years, Reporters Questioned the Terror Prosecution of Hamid Hayat.
  Now He’s Been Freed.

Trevor Aaronson - August 16, 2019
------------------------------------------------------------------------

_After spending_ 14 years in prison on charges that he attended a 
terrorist training camp in Pakistan, Hamid Hayat was freed on August 9 
following a California judge’s decision to overturn the conviction.

 From the start, Hayat’s case had been controversial.

The government’s star witness, Naseem Khan, was a fast-food worker 
earning $7 per hour before the FBI enlisted him as an informant and paid 
him nearly $230,000 over three years. Khan came to the FBI’s attention 
about a month after the September 11 terrorist attacks by claiming to 
have information about a visit to the United States by Ayman 
al-Zawahiri, Osama bin Laden’s deputy in Al Qaeda. Although agents 
determined that Khan’s information about al-Zawahiri was bogus, the FBI, 
in a post-9/11 rush to build a network of thousands of informants in 
U.S. Muslim communities, recruited him into the ranks anyway. By the 
time Hayat went to trial in 2006, federal prosecutors downplayed Khan’s 
credibility questions, calling his al-Zawahiri report a case of 
“mistaken identity.”

The informant’s claims that Hayat was involved in terrorism weren’t 
enough on their own to convict the man. The government also relied on 
the fact that, during an interrogation, Hayat told FBI agents that he 
had attended a training camp — though he gave agents conflicting 
information and several different locations for the camp, with one in 
Afghanistan and others in Pakistan. The admissions came after agents 
kept him awake until 3 a.m. and as he complained that his head hurt and 
that he wanted to go home and sleep.

    The overturning of his conviction likely wouldn’t have happened
    without a sustained reporting effort that spanned a decade and a half.

“But I need you to tell me details about targets, what they said, you 
know. And this is where I need your memory to come back,” the 
interrogating agent told Hayat.

In response, Hayat was vague. “Like I said, sir, you know, big 
buildings, and, you know, like hospitalities 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.

At the same time, agents questioned Hayat’s father Umer, who worked as 
an ice cream truck driver in Lodi, the agricultural town in Northern 
California where Hayat also lived. They told him that his son had 
confessed to attending a training camp, but they minimized the 
seriousness of the action. One agent suggested to Umer that had he 
visited his son at the training camp, it would be similar to a parent 
checking out their child’s college campus.

Umer then gave the FBI agents what they wanted, describing a training 
camp in fanciful detail — with 1,000 fighters wearing masks “like ninja 
turtles” and using swords to attack dummies made to look like President 
George W. Bush, Secretary of Defense Donald Rumsfeld, and Secretary of 
State Colin Powell. Umer later recanted his confession, saying he based 
his descriptions on scenes from the movie “Teenage Mutant Ninja 
Turtles,” which he’d recently watched, only after agents refused to 
believe he’d never visited the camp.

Despite the problematic confessions and the FBI informant’s credibility 
problems, Hamid Hayat was convicted at trial of material support to 
terrorism and lying to the FBI and sentenced to 24 years in prison. The 
overturning of his conviction likely wouldn’t have happened without a 
sustained reporting effort that spanned a decade and a half and involved 
multiple news organizations.

_Among the early_ skeptics of the case was Lowell Bergman, whose 
reporting for “60 Minutes” on the tobacco industry was dramatized in the 
movie “The Insider.” A journalism professor at the University of 
California, Berkeley, and director of the Investigative Reporting 
Program, or IRP, which he founded, Bergman was working with PBS 
Frontline and the New York Times when the government prosecuted Hayat. 
His 2006 film with Frontline, the Times, and the IRP, “The Enemy Within 
<https://www.pbs.org/wgbh/pages/frontline/enemywithin/etc/synopsis.html>,” 
detailed the Hayat case and documented problems with the FBI’s 
counterterrorism program.

For years, Bergman pushed for and supported efforts to continue 
reporting on the issue. I worked for him at the IRP from 2010 to 2011. 
During that time, I was investigating the FBI’s counterterrorism 
program, and Hayat was one ofmore than 500 defendants 
<https://www.motherjones.com/politics/2011/07/fbi-terrorist-informants/> 
whose cases I analyzed for trends. Bergman regularly brought up the 
Hayat case, lobbying me to spend more time looking into it.

“Lodi, Trevor, Lodi,” I remember him saying with a wry smile as he 
passed my desk once.

In 2013, Bergman captured the interest of Syeda Amna Hassan, a Berkeley 
graduate student in journalism from Pakistan. Hassan researched the case 
for a master’s thesis and eventually tracked down people in Pakistan who 
were with Hayat when he had purportedly attended the training camp. They 
described how Hayat had spent his entire time in Pakistan playing soccer 
and video games, supporting the claim that Hayat’s confession had been 
coerced by FBI agents. Although Hassan’s thesis was never published as a 
news story, she assisted Hayat’s lawyers in collecting evidence from 
alibi witnesses in Pakistan.

Journalist Abbie VanSickle then joined Bergman’s IRP, and she used 
Hassan’s research as a starting point to investigate Hayat’s case 
further. Her reporting — which was published in The Intercept in 
November 2016 as the two-part series “Deceit and Terror 
<https://theintercept.com/series/deceit-terror/>” — told the full story 
of Hayat’s prosecution and its problems. Among VanSickle’s findings was 
that, despite federal prosecutors showing the jury satellite images of 
the supposed training camp Hayat went to, an internal memo revealed that 
the government’s intelligence experts disagreed about what camp he 
attended. (VanSickle continued to cover the Hayat case for The Marshall 
Project <https://www.themarshallproject.org/2018/03/12/the-video-alibi>, 
where she is now a staff writer.)

    Hayat is the first international terrorism defendant in the
    post-9/11 era to have his conviction fully overturned.

Hayat’s path to freedom this month went on a separate track through the 
courts as Bergman, Hassan, and VanSickle investigated. In March 2013, an 
appeals court ruled 2-1 
<https://www.investigativeproject.org/documents/case_docs/2121.pdf> to 
uphold Hayat’s conviction, with Judge A. Wallace Tashima offering a 
full-throated dissent that described the conviction as “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.’”

Lawyers for Hayat then brought a claim of ineffective assistance of 
counsel during the trial. U.S. Magistrate Judge Deborah Barnes held an 
evidentiary hearing in January 2018, in which Hayat’s alibi witnesses in 
Pakistan were finally given an opportunity to testify. This January, in 
a written recommendation 
<https://www.leagle.com/decision/infdco20190115b00> that exceeded 40,000 
words, Barnes advocated for Hayat’s conviction to be overturned. Seven 
months later, in late July, U.S. District Judge Garland E. Burrell Jr., 
who presided over Hayat’s trial, agreed.

I asked VanSickle what she thought of our former boss, Bergman, being 
proven right after nearly 15 years of obsession with the Hayat case. She 
laughed. “It may take 10 years or more, but Lowell is often proven 
right,” she told me.

Hayat’s case is now an exception. Since 9/11, the Justice Department has 
charged nearly 900 defendants 
<https://trial-and-terror.theintercept.com/>with international 
terrorism-related charges. The government has a near-perfect record of 
conviction. Just three have been acquitted, and four have had their 
charges dropped or dismissed. Hayat is the first international terrorism 
defendant in the post-9/11 era to have his terrorism conviction fully 
overturned. (Mohammed Ali Hassan Al-Moayad, convicted of providing 
material support to Hamas and Al Qaeda, had his conviction overturned on 
appeal in 2008 — but then he pleaded guilty to a terrorism charge 
involving fundraising for Hamas.)

But Hayat’s case may not be over yet. The Justice Department has the 
option to refile charges against him, and the U.S. Attorney’s Office in 
Sacramento is now reviewing the case.

Bergman told me he was glad to see the courts share some of the concerns 
he’d long had about Hayat’s prosecution. “This particular case was so 
absurd on its face and had so many reversible errors that it was insane 
that the guy got convicted,” he said. But Bergman thinks the court 
should have gone further by specifically rebuking the government for its 
abusive counterterrorism practices. “Nobody in the judiciary has 
challenged the government’s behavior in these terrorism cases,” he added.

For his part, Hayat is reacquainting himself with having his freedom and 
waiting to see if the Justice Department will again attempt to take it away.

At a press conference in Sacramento on August 11, Hayat, now 36 years 
old, wept. “I still think this is a dream. I wake up, and I still think 
I’m in prison,” he told the audience, adding later: “I’ll never be able 
to pay back none of my brothers and sisters, none of my supporters. I’m 
your guys’ servant until the day of judgment.”

-- 
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 https://freedomarchives.org/
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