Hard Break
Could 18 New Alibi Witnesses Give Hamid Hayat a Second Chance?
Nine years ago, Hamid Hayat was convicted — without any hard evidence — of plotting to kill Americans. Can 18 new alibi witnesses make a difference?
by Najeeb Hasan
What Ali Hasan Cemendtaur remembers most about Behboodi, a tiny agricultural village in Pakistan’s Northern Punjab is that it teemed with young, unmarried men who were western by birth, but living there, in their parents’ village, seeking a madrassah education, a bride, or both. In March of 2006, Cemendtaur, a Pakistani-American blogger, interrupted a family vacation to Karachi in an attempt to unravel the mystery of how Hamid Hayat, a quiet and unremarkable 22-year-old from Lodi, just south of Sacramento in central California, spent his time during a recent stay in the village. It’s a mystery that was elicited by Hayat’s headline-grabbing arrest upon his return to the United States a year earlier in 2005, when he became a face of American-born terror after claiming to attend a jihadist training camp in Pakistan as part of a plot, as the government later put it, to “kill Americans.”
By the time of Cemendtaur’s visit, Hayat’s trial was nearing its verdict. In fact, just six weeks later, on April 25, a jury in Sacramento found him guilty of providing material support to terrorists and making false statements to the FBI, for which he was sentenced to 24 years in prison. Cemendtaur, who had been following the case closely from his home in Silicon Valley, wanted to do what Hayat’s defense never did: collect — for a home-edited video he later posted on his blog — first-hand accounts of Hayat’s stay in Pakistan, a two-year period between 2003 and 2005 which the government alleged he spent partly at a militant camp in Balakot, in Pakistan’s Khyber-Pakhtunkhwa, about 100 miles northeast of his native Behboodi.
Cemendtaur arrived already deeply skeptical about the case against Hayat, which rested on knotting together a meandering, often bewildering confession with strands of circumstantial evidence. The government’s case prompted Judge A. Wallace Tashima to begin his dissent to a 2013 Ninth Circuit decision affirming Hayat’s conviction by observing:
“[I]n this case, the government has concluded that it is not for it to say what offense Hamid Hayat has committed, but it is satisfied that he committed some offense, for which he should be punished.”
Judge Tashima’s purpose was to raise alarm at the lack of hard evidence that convicted Hayat, making his conviction an “unsettling” demonstration of the side effects of “anticipatory prosecution,” a post-9/11 counterterrorism strategy to punish suspects for crimes they might commit.
The evidence against Hayat went as follows: In a lengthy — and voluntary — FBI interrogation, a flagging and eager-to-please Hayat eventually agreed to repeated suggestions that he trained at a jihadist camp in Pakistan, which he described as run by “big people … taller than me” or, perhaps even, by “maybe my uncle” or “maybe my grandfather.” (Later, after his confession, a relieved Hayat invited FBI agents to a reception for his new bride in Lodi.) Hayat also kept a scrapbook of sorts, stuffed with news articles about right-wing Pakistani politics and Islamist literature, which included anti-American screeds. In his wallet, he carried an Islamic supplication that prosecutors translated as, “Oh Allah, we place you at their throats, and we seek refuge in you from their evil,” and a government expert testified would only be in the possession of a jihadist. And finally, he forged a friendship with a paid informant, Naseem Khan, playing the role of a politically frustrated Muslim, to whom, in sporadic bravado, Hayat sometimes expressed horrible things, such as gleeful satisfaction about the murder of the reporter Daniel Pearl — “They cut him into pieces and sent him back,” he approvingly told Khan. It was to Khan that he boasted he would attend a training camp in Pakistan — and to whom later, during phone calls from Pakistan, he made excuses for not going. “You told me I’m going to a camp; I’ll do that,” Khan prodded Hayat at one point, exasperated. “You’re sitting idle. You’re wasting time … You’re fucking wasting time.”
Still, Cemendtaur says that when he arrived in Behboodi, “I had an open mind that maybe I’ll find something, some activity that would lead me to believe that something might have happened.” He wanted to interview Hayat’s wife because Hayat, after recanting his confession, claimed he was in Behboodi for marriage and to care for his ailing mother. Predictably, the villagers steered Cemendtaur away from her (the two are divorced now), despite his offer to speak to her from behind a curtain. “I was telling them it’s because of their backwardness that all these problems are coming,” he says, rolling his eyes. In the end, his visit to Behboodi and a neighboring village lasted about a day. He remembers a generous dinner and an equally generous breakfast in addition to widespread incredulity about Hayat’s arrest, based on both disbelief that a training camp existed in Balakot and descriptions of Hayat’s near constant presence in the village during his stay.
Until recently, Cemendtaur may have been the only observer of Hayat’s arrest and trial to visit Behboodi. But last year, as part of a petition for a new trial filed on April 30, Hayat’s attorneys presented 18 sworn statements from relatives and acquaintances in Behboodi that paint Hayat as a simple-minded loafer who didn’t possess the nerve — or the freedom — to venture unaccompanied from his village had he even wanted. If Hayat’s conviction once depended on, as Judge Tashimi lamented in his dissent, “dire, but vague predictions” about his future behavior by the government, the new statements offer a startlingly clear and comprehensive account of Hayat’s stay in Pakistan, prompting his attorneys to describe them as “irrefutable proof” their client virtually never left the company of his friends and his family long enough to attend a jihadist camp for the “period of months” the government claims he did.
The petition itself takes aim at Hayat’s original defense attorney, an immigration lawyer who had never tried a criminal case, arguing through multiple examples of alleged failings that her inexperience led to an inadequate defense for Hayat. In terms of the legal narrative, by themselves the statements — and the other new evidence and expert testimony collected by his current attorneys — can’t overturn Hayat’s conviction. Rather, the new evidence is designed to support Hayat’s assertion that the limitations of his attorney actually hurt his defense. The attorney, Wazhma Mojaddidi, who began representing Hayat in the spirit of community service — she took a token fee and would have done the case for free, she said in legal documents — stands by her work on the case, saying that her representation was “competent” and all her decisions were “strategic” and in consultation with Hayat.
Shirin Sinnar, a civil rights attorney and an assistant professor at Stanford Law School, describes the statements as giving any judge real reasons for pause, including the sheer number of witnesses, the fact that Hayat was in such close, almost daily contact with many (but not all) of them, and their portrayal of him as somebody ultimately incapable of traveling alone. “These are three separate things about the statements that are each quite powerful,” says Sinnar, who has followed the case since Hayat’s arrest in 2005. “If you had any of that appear in court, it would have created a reasonable doubt. Any judge seeing that many statements by people who are in close contact [with the defendant] would be affected by them.”
Of the 18 statements, only one — by Muhammad Nauman, a cousin — associates Hayat with a jihadist camp — but only in connection with Khan, the government informant, who Hayat initially telephoned frequently while in Pakistan after meeting him in Lodi. “I was surprised that [Hayat] talked with such enthusiasm about what his friend Naseem Khan said,” says Nauman. “Hamid used to say that Naseem Khan was an emotional person, and he was interested in jihad. He would come to Pakistan soon, and he wanted to go to a training camp. Hamid never said anything about going to a camp himself.” Hayat told Nauman that Khan was planning a trip to Pakistan and that it was his responsibility to “show him around.” But, says Nauman, “his friend never came to Pakistan, and Hamid never went anywhere.” He concludes: “In my opinion, Hamid was brainwashed. His friends could usually frighten and threaten him and get their way. He was a very simple human being.”
Taken together, the new statements place Hayat predominantly in Behboodi between 2003 and 2005, a period that includes the “months” in the stretch between October 2003 and November 2004 that he is said by the government to have trained at the jihadist camp. He also made planned trips to Rawalpindi, about 50 miles southeast, always with his mother, who was seeking treatment with a hakim, or traditional doctor, for Hepatitis C. Even though he was a young adult, he was “afraid of traveling alone” and didn’t have permission to spend even a single night away from his relatives according to one uncle, Attique ur Rahman, who owns homes in both Behboodi and Rawalpindi. “There is no question of him ever travelling alone,” adds Muhammad Daud, a friend from Rawalpindi. “Even when he was travelling locally, he would take one of our friends with him. He had no clue about routes here.”
Decidedly, then, Hayat wasn’t a loner who could slip away unnoticed for any span of days, let alone the months it would require for jihadist training. While in Behboodi, many friends and relatives recount seeing him “almost every other day” or even “almost everyday.” He awoke well past the mornings; led the social life of any young adult blessed with an inordinate amount of spare time — video games, films, and trips to restaurants and pool halls in neighboring Hazro; and habitually played cricket between the late afternoon and sunset prayers. “He could not live without TV or games,” says Nauman, the cousin. “If the TV’s aerial or the game console broke down, he spent the whole day in a terrible mood.” He held the keys for the baithak, a near daily evening gathering of village gossip and recreation (card games, films, more cricket). Muhammad Anas, an uncle who Hayat stayed with during his trips to Rawalpindi, describes his nephew’s behavior as “childish,” saying he was “scolded frequently” for playing video games all day and cricket in the evenings.
The statements also reveal that Hayat’s temperament was colored by an episode of bacterial meningitis, which he contracted during an earlier visit to Pakistan and which left him with a timid and nervous character. The lasting effects of Hayat’s meningitis, which possibly could have helped explain his junior partner relationship with Khan, the informant, and his guileless FBI interrogation, never became an issue during his trial. In the statements, Fahim Ud Din, an uncle and a doctor who informally advised his treatment, notes that the meningitis affected Hayat’s “thinking capabilities” and “expressiveness.” Daud, his friend from Rawalpindi, says:
“After meningitis, Hamid only grew in height. His mind remained like that of a child. If we spoke too loudly, he got scared.” His younger brother, Arsalan, could wrestle him easily to the ground. He wouldn’t play with guns. “He did not even know how to hold a slingshot,” Hammad Ishfaq, a cousin, points out.
Hayat once mistook another burka-clad woman for his mother and asked her for money, inviting a sharp rebuke. “Just for that,” says Tayyaba Fahim, an aunt, “Hamid started avoiding her, and began to adopt a different route to go home.”
It’s still unclear how the government will respond to these new statements. A spokesperson from the U.S. Attorney’s Office in Sacramento described them as “one side of the story” but declined further comment outside of what the government plans to file in court, for which they have a February 27 deadline. In legal documents filed last November that include extensive questioning of Mojaddidi by both Hayat’s attorneys and the government, the federal prosecutor, S. Robert Tice-Raskin (who’s since left the U.S. Attorney’s Office after being elected judge in Nevada County, California), establishes that Mojaddidi interviewed every person named by Hayat as a potential alibi witness after his arrest, as well as others such as his brother Arsalan. In total, Hayat named four such witnesses in 2005 — his mother, his cousin, his uncle, and his grandfather — and Mojaddidi rejected them all for various reasons. Two of them, for example, weren’t pursued because, Mojaddidi said, they “were elders with beards and they had the whole look, and they were living in Pakistan.” Only one of the witnesses named then by Hayat — his uncle, Attique ur Rahman — matches a name from the new list of 18 witnesses, and Mojaddidi emphasizes that neither Hayat nor the witnesses she spoke to ever asked her to contact any of the other 17 witnesses he’s presenting now. In addition, in the same documents, Mojaddidi tells Dennis Riordan, Hayat’s current attorney, that she made a general conclusion that witnesses in Pakistan who observed Hayat’s activities there — playing cricket, traveling with his mother, visiting friends — wouldn’t be helpful because “the argument could have been that just because he did those things doesn’t mean that he could not have attended a camp at some point when he wasn’t doing those things.”
If the government does end up blaming Hayat and his supporters for not supplying these same alibi witnesses in 2005, it’s an argument that his current attorneys may have anticipated, not least by emphasizing that Mojaddidi never sent an investigator to Pakistan to assess potential witnesses for herself. In documents filed with the court, Hayat’s attorneys write: “In a hypothetical situation involving a client who is accused of a crime and claims he was at a dance ten miles away but does not know the names of anyone there, Ms. Mojaddidi affirmed that she would ‘absolutely’ hire an investigator to find alibi witnesses.”
Now 32 years old and serving his sentence at FCI Phoenix, a medium-security federal prison in Arizona, Hayat is hoping for a second chance at justice. Cemendtaur’s journey to Behboodi in 2006 suggests that Hayat’s alibi witnesses could have been found even nine years ago. In fact, Cemendtaur says, the villagers he spoke with were so sure that Hayat would be exonerated in his trial that they interpreted his arrest as simply a massive misunderstanding. They had their theories — most notably that Hayat was unwittingly entangled in an American effort to justify post-9/11 anti-terror laws — but also found room for optimism. “At the time, the case was not decided,” says Cemendtaur. “Somehow they believed in the American justice system. They were naïve enough to believe that truth would be proved and justice would prevail.”
Najeeb Hassan is a freelance writer and editor living in the San Francisco Bay Area — He can be contacted at najeeb.hasan[at]gmail.com
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