James Wedick was a FBI street agent and supervisor for 35 years. Before retiring in April 2004, he was in charge of a number of high-profile criminal investigations into public corruption. Soon after Umer and Hamid Hayat were arrested in the Lodi, California terror case, Wedick was sought out by Umer Hayat's defense attorney to review the government's evidence. At the trial, Wedick wasn't allowed to testify about the FBI's videotaped interrogation of the Hayats and their confessions, nor about the quality of the overall investigation; the judge ruled the value of Wedick's testimony was "outweighed by its potential for confusing the jury." In this interview, Wedick discusses the weaknesses in the government's case, the problems in how it was handled and his concern about the FBI's new paradigm favoring disruption and prevention over prosecution. This is an edited transcript of an interview conducted June 30, 2006.
How did you get involved in the Lodi, [Calif.] investigation and trials of Hamid and Umer Hayat?
I was asked to get involved in the Lodi investigation by one of the main attorneys, Johnny Griffin. Johnny Griffin had engaged me as a private investigator in other investigations. … It was not long after [Hamid Hayat was taken into custody] that Johnny asked me to help him with the investigation.
When you first heard about the Lodi case, what did you think?
… [W]hen I heard that these two gentlemen were being prosecuted down in Lodi, … [I thought that] these gentlemen are probably going to be convicted, because when the U.S. attorney decides to prosecute somebody, they almost always have the evidence. … They always had the evidence, plus another 50 percent.
And what was your reaction when you looked at the evidence, the videotaped confessions, that Johnny Griffin gave you?
… He asked me what my professional opinion was and whether or not I thought the gentlemen would be [convicted] if they used these video confessions. I spent a weekend looking at the video confessions. I was shocked, … because what I saw was something rather unprofessional, something that suggested that these agents were not really familiar with the two individuals being prosecuted, and they didn't look like they had done their homework relative to Al Qaeda in Pakistan and the Middle East.
Editor's Note: FRONTLINE asked Drew Parenti, special agent in charge of the FBI's Sacramento field office, to respond to Mr. Wedick's accusations. Click here to read a summary of his reply.
I began to suspect maybe that the evidence was not there. But I said to Mr. Griffin: "Johnny, they couldn't have authorized the prosecution based on these confessions. … There must be a silver bullet, a smoking gun, something that would suggest they had conducted an investigation overseas that would clearly establish that these individuals were involved with Al Qaeda and were, in fact, sent here to make jihad in the United States."
That's the kind of evidence I was looking for. They didn't show it to us, so I warned Mr. Griffin … to be on the lookout for it.
And did it show up?
That's the amazing thing: It never showed up. They produced a photograph that suggested that there was a terrorist camp operating literally within two miles of a known Pakistani military camp, which seemed rather bizarre, but the photograph doesn't include or identify anything that would suggest a terrorist camp. It was just a clump of buildings located in a mountainous region, with trees and a dirt road.
Surely, surely you're not going to suggest [based on that evidence] that these individuals should be sent to prison for a long time. If that's your smoking gun, then, as I said to Mr. Griffin, we can go home today and not worry about this case, because I didn't think a jury alive would convict on that kind of evidence. …
Well, I originally thought that the Lodi case started because Hamid Hayat was found to be on a plane headed to the United States, and they had put his name on the no-fly list, … and because of that, the bureau charged him.
I've since learned that that was not the case; that the FBI actually had conducted a four-year undercover operation, which blew my mind when I first heard of the circumstances, because I wasn't told of that when I initially got involved.
Why did it blow your mind?
Because when the Hayats were originally charged, they appeared before the magistrate, and the government has literally days to turn over statements made by the defendant in the government's possession. The government did not turn over those statements, and it was a month or two before they did. … I had been in the FBI for almost 35 years, and never before had I been involved in a prosecution where if we had tapes of a defendant in our possession, those tapes weren't prepared in boxes and ready to be turned over to the defense within days. That did not happen in this case.
Consequently, when it did happen, it blew my mind, because it suggested to me that the U.S. Attorney's Office was operating under the guise of some other rules that I have since learned may not have the interests of justice at heart.
What do you mean?
Well, why didn't they turn over the statements? What did that mean? It meant to me that they were hiding the ball. … Like any good FBI agent, I've become suspicious for a reason, and that caused me to become suspicious.
Since that time, I have found out the investigation was -- we like to use the word "predicated" or "opened" based on a report from an informant, that turns out the information was false. Now, that should not have happened. The investigation should not have gone forward based on false information.
As you watched the Lodi trial unfold, you discovered that the informant originally reported that he had sighted Ayman al-Zawahiri in the Lodi area. Zawahiri is the number two man in Al Qaeda, underneath [Osama] bin Laden, … and the bureau took the report and opened the investigation on the report, which is totally ludicrous.
First of all, he was never in the Lodi area during that period of time. And to open an investigation based on that report suggests that the agents are not schooled very well, or they hadn't expected that they were going to use this information in a prosecution. And, of course, they had to because they charged the Hayats. …
They start with the idea that the informant had information suggesting that individuals had come to the United States with the idea they were going to commit jihad and, as I understand it, were involved with the two imams … who were in the Lodi mosque.
[Why was the government suspicious of these imams?]
We know that they feared that the imams were leading a sleeper cell here in the United States. But nowhere has the bureau introduced any hard-core evidence to suggest that or prove that, which, if you're going to bring about a prosecution, you're going to have to do.
That is one of the most troubling things here in the investigation. Not only did the government not have the evidence, but ultimately it culminated in a hearing here in the United States where they attempted to have the imams charged. But the immigration authorities elected to deport them, meaning the evidence was so lacking that they [had to] be allowed to go. That was after the four years of the bureau conducting an investigation as well as paying almost [$230,000] to this informant.
How much does it cost to conduct a four-year undercover investigation?
Millions of dollars. You're talking about agents monitoring the informant, which I don't think they did very well; agents processing tapes; handling administrative matters; pursuing leads; conducting, I would imagine, an overseas investigation.
Let me read you something. John Negroponte is the director of national intelligence. He is the highest ranking intelligence official now in the United States, and every year he has to present a threat assessment to the Congress and the American people. When it came to domestic terrorism, he said: "Regrettably, we are not immune to the threat of such 'homegrown' jihadist cells. A network of Islamic extremists in Lodi, Calif., for example, maintained connections with Pakistani militant groups, recruited U.S. citizens for training at radical Karachi madrassas, sponsored Pakistani citizens for travel to the U.S. to work at mosques and madrassas, and, according to the FBI information, allegedly raised funds for international jihadist groups." True?
That report is ludicrous, and the reason I say that is because in that report, he mentions the sleeper cell in Lodi, Calif. There has not been any evidence introduced in the federal court that would suggest the FBI is watching any real sleeper cell in the United States, period. And for it to be used in an intelligence assessment before members of the Senate Select Committee on Intelligence suggests he hasn't done his homework. …
Are you saying that there is nothing to back that up?
There is nothing to back that up. I have been in negotiations and talks with various members of the government, … and on a number of occasions I was told that I could expect each Hayat to be convicted not so much on the evidence, but because they could count on hysteria here in the United States to prosecute these individuals and convict them, which is unbelievable.
Who said this to you?
I'm talking agents and prosecutors here, responsible for the Hayat investigation. … [T]hey did not have the evidence that they needed to prosecute either individual, and they were willing to allow them to be convicted based on hysteria, and they knew it. And that is not the Department of Justice that I worked with for almost 35 years. …
Editor's Note: McGregor Scott has denied, both in his interview with FRONTLINE and a follow-up conversation, that anyone from his office made such a statement to Mr. Wedick.
What I'm amazed about [in] this investigation is when the government rested its case, I turned to Johnny Griffin and suggested we could go home because they had failed to produce any evidence that suggested Hamid Hayat or Umer Hayat were terrorists, or that they were terrorists here in the United States waiting to commit jihad.
What happened was [Umer Hayat's] jury was completely hung, and the case was ordered a mistrial. [Hamid Hayat's case], we now know, was hijacked … and we're in the process of attempting to have that verdict thrown out because of jury misconduct. That jury misconduct, if anyone looks at it, is very real. Aside from prejudice, it's clear that one of the jurors brought outside, extraneous information into the jury room before they rendered a verdict, which obviously prejudices the jury and is grounds for a verdict being overturned.
But the people you talked about who told you they were going to win this case based on hysteria, at least they [won part of it this time]. That's why you're appealing.
That is one of my concerns. But there was no way I was going to recommend that a defendant should agree to a 15-year sentence because he could be expected to be convicted because of hysteria here in the United States. …
So you're saying that they were telling you, "Plead your client to 15 years because he's going to get convicted not on the facts but on hysteria."
In a large part because of the hysteria, absolutely.
Not the facts.
Not the facts.
When you look at this case as a whole, based on your experience in the FBI, what were they really after? Why did they wind up with the Hayats?
They were the last men left. The imams had been deported. They had not developed any evidence suggesting anybody else was here in the United States awaiting to commit jihad. They had paid more than almost [$230,000] to a government informant. … They had to bring about charges concerning someone.
But again, let me take you back to Negroponte's statement. He says it's based on FBI information; he says, "A network of Islamic extremists … maintain[ed] connections with Pakistani militant groups, recruited U.S. citizens for training …, and sponsored Pakistani citizens for travel to the U.S. to work at mosques and madrassas. …"
They never produced any of those people?
Mind you, not only did they not produce anybody; they had a four-year undercover operation. ... The only people that they elected to charge here in the Lodi case were the two Hayats, meaning they did not have the evidence to suggest that anybody else warranted prosecution.
Now, when you look then at the evidence that they used to prosecute the Hayats, it's pathetic. We spent one afternoon with an expert that they put on the stand suggesting that a prayer [a tawiz] that [Hamid] had in his back pocket [indicated] that he was in the United States to commit jihad.
Ridiculous. I can tell you the that if an agent ever [came] into my office and suggested that as part of the evidence he was going to introduce or use a witness that would talk about someone's religion, the conversation would be over. That agent would be thrown out of my office, and we'd be on to something else. …
Can you imagine? They're bringing about a criminal prosecution based on a prayer in this gentleman's back pocket that is basically a traveler's prayer that hopes to protect you if you come upon marauders or someone wanting to [do you harm], not attack the United States government or do harm to its citizens.
Editor's Note: Read an article from The Atlantic Monthly describing in detail the evidence against Hamid Hayat -- in particular the "jihadi" prayer -- and how it was used to convict him.
So Al Qaeda in Lodi, Calif., turned out to be an ice cream truck driver and his not-particularly-intelligent son.
I sat for almost two months next to the ice cream truck driver and his son. I'm here to tell you that … there's nothing about these two individuals that would warrant that they be prosecuted. What bothers me is that the only reason that they were prosecuted was because somebody was pursuing that terrorism pot of gold, which is the real motivator here, and not whether or not they were here in the U.S. to commit jihad.
And I don't mind upsetting the U.S Attorney's Office or friends that I used to work real close with in the FBI, because I never joined the outfit to pursue a prosecution if it didn't warrant being prosecuted. And an ice cream truck driver and his lazy son don't meet the test.
Some people in the FBI headquarters say the government didn't overstate its case; that the type of presence shouldn't be seen as overhype, referring to the trip to Pakistan, the admissions in the interrogations of going to training camps, of approving of the killing of [journalist] Daniel Pearl, etc.; that the presence of these people is a problem. He said, "We have a pretty high level of confidence in a specific report that this individual actually did go to a terrorist training camp [in Pakistan]."
Right. They never brought any evidence to suggest these individuals were terrorists. In fact, their young street agent testified in court that they did not conduct any overt investigation in Pakistan. And later, [U.S. Attorney and lead prosecutor in the Hayats' case] McGregor Scott and the SAC [special agent in charge] responsible for the bureau here in Sacramento said, "Well, the reason that they did not do that was because Pakistan was a sovereign nation."
Ridiculous. The bureau has one of its largest overseas offices in Islamabad, Pakistan, more than 50 agents. For you to send an agent to take the stand and to suggest that you did not conduct any investigation in furtherance of proving that they were connected to a terrorist organization is bizarre. …
In Washington, what they say to us is there was evidence in this case that they couldn't present because it was [classified].
No, that's not true. The reason that's not true is because their agent took the stand and said, "As it relates to the two defendants on trial here, we did not conduct any investigation concerning their efforts to be terrorists." Now, mind you, let's look back. Their undercover operation, their informant literally threatened Hamid Hayat that if he didn't go to a camp he was going to grab him by the neck and take him there. This was long before anybody knew the FBI was conducting an undercover operation or an investigation. That suggests that these two individuals weren't here in the United States to conduct jihad, and they knew it. …
So Hamid Hayat goes to Pakistan, and the FBI puts him on the no-fly list? Why?
I suspect that they put him on the no-fly list because they didn't really suspect that he was a terrorist, because if he was, they would have been watching him more closely. But they used the no-fly list more or less as an early warning so that they'd get the heads up from the airlines that he was coming home, and they'd be able to ratchet up a surveillance if they needed or do some other investigation.
But in my mind it's clear: They didn't feel that he was a threat to the United States, because if he was, during that time while he was over in Pakistan, they would have been looking at his activities, and they were not. They clearly were not. If they had, they would have had to turn over to us any tapes that they would have had in their possession.
But their informant was talking to him on the phone in Pakistan.
[In fact], the informant was threatening him on the phone. He accused Hamid of being a lazy, no-good-for-nothing bum who had basically shined him on about going to a camp, and that if he didn't do something -- go to a camp -- he literally was going to take him by the throat and take him to the camp himself. Now, that's a threat. …
In their hearts they knew he was not a terrorist, so they didn't pursue him; they didn't monitor his activities. They put him on the no-fly list.
But the airlines didn't pick him up?
The didn't pick him up. They realize he's on the jet, and they needed to notify the bureau and the CIA, so the plane is diverted to Japan. He's interviewed, and he's allowed to come back to the United States. Now, the reason he's allowed to come back to the United States -- and I understand very well; I have a background in informants and working these kinds of investigations -- it's clear they wanted him or his father to wear a wire against their principal targets, the imams. And they do that.
But the investigation goes nowhere. Their problem is it was a four-year investigation, and they literally pay an informant almost [$230,000]. So they decide they're going to prosecute somebody, and that somebody happens to be the Hayats.
Now, in my opinion -- but it's a professional opinion that I think is valuable, because this is not like this is the first time this happened to us -- when somebody agrees to wear a wire and it doesn't work out, you don't then decide to prosecute them. I mean, they knew he was not a terrorist, and they knew that the wire wouldn't work. It had probably one in 100 chances to work, and it didn't.
All right. They should have just folded their tent and left, but they didn't. They decided to trample on the rights of this kid and his father to prove a point -- a point that they didn't believe in, because if they did, they would have monitored his activities in Pakistan.
If they believed he was a terrorist, they should have monitored his activities. And if they had monitored his activities, they'd realize he's not a terrorist and move on to what they really should be pursuing, which is individuals who are here in the United States, waiting to commit jihad.
The imams, it seems, were their real targets, and yet they get deported. What's that about?
That means that they did not have the evidence to charge them with terrorism. So how is it that they think they could charge these two lesser figures? Because … what is it that Hamid Hayat said in any of his discussions that was disgusting? That is the comments he made about Daniel Pearl, and that's something that to this day bothers me, but it is not something that you're going to send somebody to prison for almost 40 years. …
When we talk to people in Washington, people like Art Cummings, special agent in charge of counterterrorism at the FBI's Washington, D.C., field office, and they argue that the FBI has successfully changed into an intelligence organization that is now focused on prevention, that's what this Lodi case is all about. That's what the deportation of [the] imams is all about.
Are you saying to me that the bureau is going to go to a new paradigm where we're going to prosecute people for thought crimes?
Their answer to that is: "We don't prosecute the thought crimes. We watch people to see if they may do something to express their [violent thoughts], but we only prosecute as a last resort if it looks like they may do something; in this case, go to a camp or lie to an FBI agent."
… You cannot send criminal informants into a minority, poor community, pay huge sums of money, and expect to collect legitimate evidence. What's going to happen is you're going to have criminal informants who are going to take advantage of the situation and who are going to probably entrap young Muslim men. … You just can't operate that way. If you're going to use the criminal justice system, you're going to have to use evidence that supports the crime. If you can't articulate the evidence, you can't prosecute the crime.
We've done that successfully for years, whether it be organized crime, incoming drugs shipments: If they are involved in real crimes, they'll go about procuring guns, weapons, explosives and accumulate money, use fictitious identities, etc. All those are overt acts that can be used to charge someone in conspiracy to commit jihad in the United States, and they can be prosecuted. But to pay an informant a huge amount of money and then to also supply the ingredients, you're stepping into dangerous waters. I don't think that you can sustain that kind of a prosecution.
I'll read to you what Art Cummings said: "Criminal prosecution in the collection of evidence is incidental to the prevention mission. It is not the objective; it is not the mission. The mission is prevention. Once I identify someone that I believe to be involved in terrorism, that person is but a means for me to collect against the possible operation. …" That's yet again another paradigm shift.
You're not going to be able to sustain a prosecution, and you're not going to be able to sustain pursuing terrorism using that paradigm. Without evidence, you're going to end up entrapping individuals, and that's against the law. You'd better realize that today and go back to the long-proven method of collecting evidence and using it to bring about a prosecution. Don't think that just because 9/11 happened that gives you carte blanche to do anything you want. …
When we go to Washington and we talk with FBI officials, … they say that they're not so interested in prosecution. They're interested in working people, watching them, turning them into informants; prosecution is the last resort. But when you look at this case, that seems upside down. What was going on here? What happened?
If you're going to use informants, you have to follow through. By that I mean when they were successful in getting the Hayats to return to the United States, and Umer Hayat ultimately agreed to wear the wire, it was somewhat ridiculous because they did it at, I think, 2:00 in the morning. How much chance of success can you possibly have? But what they should have done was, when they realized that they were going to be able to get one of them to agree to wear a wire, that was it. If it didn't work, they shouldn't then decide to prosecute, because it sends a bad message to the community. It sends the message that even if you agree to help us out, we might bite you in the ass anyway. That isn't good law enforcement.
One of the things that I learned in working with informants in a community: You have to make sure that when you do something, you continually send a good message so that the last investigation will always help you with the next investigation. The Hayat case is an example of why nobody will help the FBI, because look what happened. When they helped, the two of them were prosecuted. Bad message, bad message. …
… In my opinion, the bureau is totally missing it with respect to informants. [In] the Lodi investigation, not only was the investigation predicated on false information -- i.e., Ayman al-Zawahiri being in the Lodi area -- but that informant was not familiar with anybody in the Lodi community. He had no more a chance of securing success in assisting with that investigation than the man in the moon. …
One of the things that I was most impressed about when I attended a funeral for Umer Hayat's father in the Lodi area [was the] more than 500 men [who] came from all parts of Northern California. They all appeared to intimately know the Hayat family. What struck me was that if the bureau doesn't take the time to get involved with the Muslim community -- not on a once-a-month basis, but on a basis where they're seeing them daily -- they're going to miss the information they need to open an investigation, because it's clear to me it's a tight-knit community, the Muslim community. They know more than anybody else if somebody comes in and starts to preach fundamentalist ideas. And if they work closely with the community, they'll find that fundamentalist sooner than any informant would, no matter how much money they pay.
What is the impact, then, of this case on that community and possibly other [Muslim communities]?
Well, right now they distrust the bureau. They see the bureau bringing about a prosecution that shouldn't have been brought about because they know the Hayats as [people who were] not here in the United States to commit jihad. …
The damage has been done, but it's not too late -- it's not. They can reverse course. We are interested in locating and finding terrorists. Even the Muslim community, they're not interested in seeing fundamentalists come into their neighborhood and preach ideas of jihad. It's imperative upon the bureau to get with the community leaders. If they do, I guarantee you it will be productive. …
You described the counterterrorism war as a tidal pool. What do you mean?
Congress has passed or allocated a huge terrorism pot of gold that every agency is attempting to obtain a piece of. Each agency wants their share of the pot. In so doing, they will at different times classify crimes as being terrorist-related when they're obviously not.
I've been back and had conversations with bureau officials today where they have told that they continually find middle management attempting to open investigations that concern terrorism that clearly are not terrorism-related. But they're all doing it because they want one, to be recognized that they're doing something in the terrorism fight; and two, they want to secure assets for their field division so that they can increase their ability to conduct investigations.
In other words, it's the flavor of the month.
It's the carrot that's held out in front of the horse. And that's what they have to be mindful of: that that carrot, not only can it affect the way investigations [are] pursued, but the way the FBI runs itself. …
[It has been] almost five years now since 9/11, and for whatever reason there hasn't been a major terrorist event here in the United States. To overlook other crimes is almost unforgivable. … So my advice would be that … they reprioritize their resources so that they don't forget that there are other crimes that they need to be concerned about aside from terrorism.
What they're saying is because they shifted all these resources, because, in some ways, they use the blunt force of the U.S. government on the question of terrorism, that's one of the reasons we haven't had an attack.
That's not true. I have a personal point of view that those 19 hijackers were probably the luckiest people on this earth. By that I mean had it been a cloudy day, they probably never would have found the Twin Towers. …
We moved heaven and earth because of the events, but in so doing, we're overlooking some major crimes that we need to make sure we don't overlook because if we do so, at some point, we're going to realize that we're being victimized in a way that we'll never recover. … The bureau needs to not forget that there are these other crimes out there that they need to resolve. …
Are we really pursuing the real enemy in the United States, or is there some enemy maybe that we're missing because we're going in the wrong direction? What's going on here?
Well, like in the instance concerning the [Lodi] imams, I think that if the bureau had information suggesting that they were involved with violent jihad here in the United States that whatever that information is, or was, was old. It contradicted the information that was now on record, and that was [that] the imams had changed their mind. They were part of an ecumenical movement here that was trying to unite the different religions in the Lodi area.
I talked to a number of people who said, "We're sorry they're gone." [In Lodi, there were] two churches -- I think one was the Catholic and the other a Methodist -- that were located across from each other that hadn't spoken to one another for 10 years. The imams had preached getting together, and because of them, [these two churches] had actually gotten together.
Regardless of the old information, the bureau was going down the wrong track by prosecuting these two gentlemen, and they should have realized that. They had the evidence to realize it, and they decided not to, … because they were chasing that terrorism pot of gold. …
Both Hamid and Umer Hayat admitted to visiting a camp in Pakistan. Why would someone do that?
They were attempting to return home, to go back to their house. … They had repeatedly denied attending any camp, being associated with any terrorist activities, but then finally at some point, if you look at the tape-recorded confessions, you'll see that they more or less answered the way the bureau wanted them to answer. Most of the answers were just short bursts of agreement of whatever was proposed. Other times it doesn't make any sense. What I found shocking was the bureau never tried to mitigate or reconcile the differences between what Hamid said and what Omer said.
… [I]f you deal with anybody involved with committing crime who is from a minority ethnic community, they never thought whatever they said could possibly result in them being sent to prison for years on end. If you ask anybody involved in law enforcement, they'll tell you that [concerning suspects with a limited education], their goals are usually, can I get home today?
All they wanted to do was get home?
That's all they wanted to do was go home. They had no thoughts that if they cooperated with the FBI that either of them would spend the rest of their lives in jail. It never, ever occurred to them.
And how would you have conducted the interviews?
A confession lasts hours on end, so at the very minimum, at the end of each confession, I would have asked each gentleman to tell me in their own words what it was that they thought they did -- whether it be they attended a camp, traveled to receive jihad instruction or whatever -- but in their own words.
Any time a defendant is charged in court, the judge usually says to the defendant standing right there: "Well, OK, can you articulate for me in your own words what you think you've done?" Then it becomes incumbent upon the individual who has been charged and who has agreed to plead to a prosecution that he has to articulate what he thinks he did wrong, and then in his own words he has to expound on that topic. They did not do that here, which in my mind is Investigation 101. It's incredible that they did not, because the individual doesn't have to say much, but he has to convey to you the thought that he did something wrong, that he's aware of what it is that he's done. …
What was the reaction of the FBI when they found out you were working for defendants?
Not happy. … They basically, through my wife [who works for the FBI], passed along a threat that they didn't want to see me at one of their luncheons. Having said that, I did go to the luncheon.
But in answer to your question: They are upset, but the plain fact of the matter is our system of justice requires that every man and woman be provided with the best defense possible. If that means someone has hired me or, as in the Hayat case, asked for my assistance and I've agreed to help them, then so be it. …
Did you make a lot of money on this case?
None. I'm doing it simply because they're not guilty. …
SUPPORT PROVIDED BY
NEXT ON FRONTLINEFirestone and the WarlordEncore PresentationFebruary 3rd