Shirin Sinnar is an assistant professor of law at Stanford Law School.

Viewpoints: Court's decision in terrorism case is very disturbing

Published: Friday, Mar. 15, 2013 - 12:00 am | Page 11A
Last Modified: Sunday, Mar. 17, 2013 - 11:46 am

In recent years, many federal terrorism cases have involved the plucking of low-hanging fruit: the prosecution of naive, barely competent and often mentally unstable young men who are seduced by government informants into planning wild plots of terrorist violence. The question usually is whether the suspect would have proceeded to a path of terrorism without an informant egging him on, reinforcing radical ideas and suggesting actual plots. Disturbing though these cases are, there is often little doubt that the suspect took steps to realize his warped fantasies of violence, even if those steps were at the government's instigation.

But the case of Lodi resident Hamid Hayat, whose 2006 conviction for supporting terrorism was affirmed Wednesday by a federal appeals court, is even more troubling. Serious doubts remain as to whether Hayat, bravado aside, did anything at all. Unfortunately, the 9th U.S. Circuit Court of Appeals affirmed his conviction in an opinion that disturbingly failed to credit the likelihood of prejudice and other serious errors infecting the trial.

Hayat, then 21 years old, was convicted of providing material support to terrorists for allegedly attending a terrorist training camp in Pakistan, and for lying to government officials about it. The government's case was thin: It offered as evidence Hayat's vague and shifting videotaped confession, which a former FBI agent who sought to testify on behalf of the defense called the "sorriest confession (he had) ever seen."

The government also put on the witness stand a paid informant whose credibility was already called into question by his incredible claims of seeing al-Qaida's second-in-command, Ayman al-Zawahri, at the Lodi mosque, a claim that the government acknowledged was highly unlikely to have been true. And it relied on an expert who testified that an Arabic supplication in Hayat's wallet showed he was the "kind of person" who saw himself as a jihadi warrior – even though other Islamic law experts have called into question the meaning of carrying such a supplication.

But that was not all. There was good evidence that the jury foreman in the trial made comments reflecting racial and religious prejudice. While an appeals court can't overturn a conviction simply because it disagrees with the jury's decision, evidence of a juror's bias would entitle Hayat to a new trial. Unfortunately, the appeals court stretched to find an innocent interpretation of comments that strongly suggest prejudice.

The foreman had told other jurors that, while the government informant might have mistaken another worshipper at the Lodi mosque for Ayman al-Zawahri, "they all looked the same when wearing a costume." Such a statement suggests the juror's patent inability – or unwillingness – to see Muslims as individuals rather than as interchangeable members of a group. Moreover, the foreman later told a reporter that after seeing young men of Pakistani origin carry out the London subway bombings, he could not let Hayat go free "on the basis of what we know of how people of his background have acted in the past." These are outrageous statements, yet they did not persuade the appeals court to overturn Hayat's conviction.

Judge A. Wallace Tashima, writing in dissent, also faulted the trial court for allowing a government expert to opine that the Arabic supplication in Hayat's wallet showed his disposition toward violence. In a case with so little evidence of actual involvement in terrorism, the prosecution relied heavily on evidence that Hayat had "a jihadi heart and jihadi mind." Allowing an expert to claim, essentially, that Hayat had the mental state of a "jihadi" crossed an impermissible line – particularly in a context where ordinary jurors would know next to nothing about Islam and would have every reason in the world to defer to the government expert's interpretation.

Only Tashima would have granted Hayat a new trial. Perhaps as a Japanese American who was interned as a child, he remembered well the danger of preventative security measures founded on group-based judgments. In dissent, he called the Hayat 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.' "

Even among anticipatory prosecutions, this case stands out for the fragility of the government's case and the rank taint of prejudice, raising the haunting prospect that a man who had done nothing was convicted for a violent state of mind. Let's hope the full court of appeals will reconsider.

Shirin Sinnar is an assistant professor of law at Stanford Law School.

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