Prophetic Justice

Bruce Schneier has pointed to a fascinating article, Prophetic Justice, in Athlantic Monthly from October 2006.

"At the age of twenty-two, Hamid Hayat appeared to be adrift on two continents. He slacked, by turns, in his hometown of Lodi, California, and in his family’s home country, Pakistan. Having lived for roughly equal amounts of time in each, he seemed without direction in either. But on June 5, 2005, the young American offered up alarming evidence of personal initiative: after hours of questioning at the FBI’s Sacramento office, he confessed that he had attended a terrorist training camp in Pakistan and returned to the United States to wage jihad. In quick succession came his arrest, a packed press conference, and his indictment—and suddenly, it was all over but the trial.

Hayat’s case presented a peculiar challenge for the prosecution, which needed to show not just that he had trained in Pakistan and concealed doing so, but that he had intended to commit terrorism. Yet the only direct proof of any of this was Hayat’s videotaped confession, which was as irresolute as his life. The slender, deferential young man repeatedly contradicted himself. He parroted the answers that agents suggested. And the details of any terrorist plan were scant and fuzzy.

The government said that its direct evidence was limited because it had intercepted Hayat so early in the process. “This is not a case where a building has been blown up, and, you know, the forensic investigators go in, they go looking through the rubble looking for clues,” one prosecutor, David Deitch, told jurors. “This isn’t that kind of case. This is a charge that allows the FBI to prevent acts of violence like that.” Would Americans, he asked, want any less...

Hayat was convicted as much for what he might do as for what he had done. Closing arguments usually provide dramatic recountings of a crime. The prosecutor David Deitch suggested crimes that Hayat could commit, from spraying a crowd with an AK-47 to wearing a backpack full of explosives into a crowded shopping mall.

In the wake of 9/11, many Americans will accept, if not applaud, this approach. For us, terrorism possesses unrivaled destructive power, both in the scale of damage it inflicts and the fear and vulnerability it creates. After all, if stopping inner-city or gang violence were as important to us as thwarting terrorism, we could start preemptive prosecutions of young men, based on their race, their familiarity with firearms, and their possession of music that glorifies or encourages violence. This preventive approach, Cote said, means that “just as there are people in prison who never committed the crime, this may also happen. Not this particular case, I’m saying, but future cases.” He argued that it was “absolutely” better to run the risk of convicting an innocent man than to let a guilty one go. “Too many lives are changed” by terrorism, he said. “So shall one man pay to save fifty? It’s not a debatable question.”

I left his house and started back to Sacramento, passing the grounds of Folsom State Prison along the way. In the aggregate, at least, Cote’s instinct seemed to offer an appealing surety. Only when I was back on the highway did I see its practical flaw: prosecuting and imprisoning one innocent man would do nothing, in fact, to save the fifty at risk."