Can defense attorneys for two South Florida Muslim clerics accused of aiding terrorists go to Pakistan to question crucial witnesses?
A federal judge will soon answer that question after holding a critical hearing Monday. Prosecutors flatly opposed that scenario “under any circumstance” before the high-profile trial gets underway in Miami in January.
“That’s just unacceptable to the government,” Assistant U.S. Attorney Pat Sullivan told U.S. District Judge Robert Scola.
Scola has already ruled it would be unsafe and impractical to hold the deposition of five defense witnesses at the U.S. Embassy in Islamabad with both sides present. But Scola left open the possibility of allowing defense lawyers do a live, videotaped deposition in Pakistan with the prosecutors participating from Miami.
Sullivan said the defense plan would prevent prosecutors from effectively cross-examining the witnesses in person. Moreover, the witnesses would face no perjury sanctions if they lied during their testimony, he said.
“The request to do these depositions in this way is unfounded,” Assistant U.S. Attorney John Shipley told the judge. He suggested that Scola require both sides to stay in Miami and question the witnesses while they remain in Pakistan during the actual trial. “It’s certainly a fair alternative,” he said.
The Miami terrorism indictment was filed with much fanfare in May 2011. Prosecutors charged Hafiz Khan, 77, former imam of the Flagler Mosque in Miami; his son, Izhar Khan, 26, the one-time leader of the Masjid Jammat Al-Mumineen mosque in Margate; his daughter, Amina Khan; her son, Alam Zeb; and Ali Rehman with conspiring to provide financial support for the Taliban from 2008 to 2010.
The FBI used a confidential informant, bank transfer records and more than 1,000 wiretapped phone calls to build the case against the Khan family and others.
Defense attorneys want to question Amina Khan, Zeb, Rehman and an unindicted co-conspirator, Noor Mohammed, a suspected Taliban soldier, all of whom have said they don’t want to come to the United States to testify at trial. The fifth witness is a Pakistani pharmacist who received some of the money transfers from Hafiz Khan’s foreign bank accounts.
Izhar Khan’s attorney, Joseph Rosenbaum, has argued that that the prosecutors oppose any deposition of the Pakistani witnesses because their testimony could poke holes in the government’s case, which is built on phone recordings of the Khan family’s alleged fundraising for the Taliban, a U.S.-designated terrorist group.
He has further argued that witnesses would provide “context” for the phone calls, proving that the defendants wired about $50,000 from Miami to Pakistan to aid schools and families in the embattled northwest territory known as the Swat Valley — not to fund Taliban violence against U.S. government interests in the region.
In Pakistan, Hafiz Kahn’s daughter, Amina, and her son, Zeb, have said the federal case distorted the patriarch’s good deeds to help relatives. Zeb, 20, said money sent from Miami was meant to repair a religious school founded by his grandfather and to help poor relatives rebuild houses damaged in fighting between the Pakistan army and the Taliban.
In June, prosecutors dropped charges against the elder Khan’s son, Irfan Khan, a one-time Miami cab driver, without explanation. Khan, a 39-year-old naturalized U.S. citizen, had been detained for almost a year before obtaining bail last April.