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Affidavit Changed in Terrorism Accusation

The FBI version filed in court lacks several prominent details in the publicized original.

June 10, 2005|Rone Tempest and Greg Krikorian | Times Staff Writers

SACRAMENTO — Attorneys for a Central Valley father and son arrested in connection with a broad FBI terrorism probe plan to challenge the government case in court today over significantly differing versions of the affidavit used to charge the two men.

The first version of the affidavit released to media organizations Tuesday by the Department of Justice in Washington said potential terrorist targets included hospitals and stores and contained names of key individuals and statements about the international origins of "hundreds" of participants in alleged Al Qaeda terrorist training camps inside Pakistan.

Those details -- among the most alarming in the case -- were widely reported in the press but then deleted in the final version filed with the federal court in Sacramento on Tuesday.

Federal prosecutors blamed the problem on confusion inside the bureaucracy as different versions circulated between federal offices.

"An unfortunate oversight due to miscommunication," said Justice spokesman Bryan Sierra.

But defense attorney Johnny L. Griffin III, who represents the father, 47-year-old Lodi ice cream truck driver Umer Hayat, accused the government of "releasing information it knew it could not authenticate."

Attorney Wazhma Mojaddidi, who represents the son, 22-year-old Hamid Hayat, said she plans to bring up the different versions of the affidavit when she represents her client at his arraignment, scheduled for this afternoon before U.S. Magistrate Judge Peter A. Nowinski in Sacramento. Both father and son are accused of making false statements to federal officials.

A key deletion from the affidavit filed in court, Mojaddidi said, was a statement that Hamid Hayat had said "potential targets for attack would include hospitals and large food stores."

This part of the affidavit obtained from FBI Special Agent Pedro Tenoch Aguilar was one of the most widely repeated in news accounts around the world, leading some terrorism experts to speculate about significant escalation of Al Qaeda strategies against public targets.

"We question how this got out and why this got out," Mojaddidi said.

Sacramento FBI spokesman John Cauthen said the deletions in the document were made because the original details were "not relevant or not accurate in context" for the purposes of proving a probable cause to arrest Hayat and his father.

Another federal source close to the investigation said the material about the hospitals and food stores was deleted out of fear that it might "panic the public." The same source said other deletions, including the names of a friend and uncle who allegedly encouraged Hamid Hayat to go to the camps, were deleted because the younger Hayat was the only person to name them.

Former Los Angeles federal prosecutor Jan Handzlik, now in private practice, said the two versions of the affidavit would probably have no long-term effect, although they could make it difficult for the government to find unbiased jurors.

"The basic problem," said Handzlik, "is that the perception of the defendants in the minds of potential jurors may have been irrevocably affected."

A bigger problem, said Handzlik, may be that "in addition to prejudicing the defendants unfairly, this material may also reveal intelligence material that the government did not want to release."

Although only the Hayats have been criminally charged in the case, sources familiar with the ongoing investigation said the original focus of the federal inquiry in Lodi was Muhammad Adil Khan, a Pakistani resident who has been detained by immigration officials on suspicion of visa violations.

Three sources familiar with the investigation said Khan drew the attention of the FBI nearly three years ago and was eventually monitored by agents after authorities secured a secret warrant under the Foreign Intelligence Surveillance Act.

The sources would not disclose the reason for the original interest in Khan, who is well regarded in the community and affiliated with the Farooqia Islamic Center in Lodi. Nor would they say if that investigation revealed any wrongdoing. But it was that inquiry, according to the sources, that eventually led to some of this week's arrests.

With indictments in the case expected sometime next week, one senior U.S. counterterrorism official said this week that the Lodi case has echoes of a recent federal prosecution in Alexandria, Va., where a well-known Muslim cleric was found guilty of inciting his followers to train in overseas camps for attacks against the United States.

In that case, a federal jury on April 26 found Ali al-Timimi guilty on 10 charges that included urging followers to fight the U.S. But his conviction is controversial because it hinged largely on his remarks -- just days after Sept. 11, 2001 -- that followers should join the armed jihad in Afghanistan.

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