MIAMI — Two South Florida Muslim clerics a father and son separated by more than 50 years in age are struggling to persuade a Miami federal judge to allow their lawyers to travel to Pakistan to question alleged Taliban sympathizers who might help their defense against terrorism charges.
Lawyers for Hafiz Khan and Izhar Khan, former imams of mosques in Miami and Margate, have already lost their first bid to travel with federal prosecutors to the U.S. Embassy in Islamabad to take depositions from five witnesses who do not want to come to Miami to testify at the upcoming trial.
Among the potential witnesses are two other Khan family members and another suspected Taliban supporter who were accused in the same case of conspiring to aid the Taliban with money and guns.
Last week, U.S. District Judge Robert Scola rejected the defenses initial deposition plan which was strongly opposed by federal prosecutors as unsafe and impractical. But Scola left open the possibility for the defenses alternative: allowing the Khans lawyers to question the witnesses at a hotel such as the Marriott in Islamabad in a live, videotaped deposition with the prosecutors participating from Miami.
If there is a way for you to take their deposition, Im going to let you do it, Scola said, setting the stage for a final hearing Oct. 29.
The clock is ticking, however, because the material-support trial that initially drew national headlines is scheduled for early January. Bottom line, the defense said: No deposition, no fair trial.
These witnesses are so important if were going to have any defense, Izhar Khans lawyer, Joseph Rosenbaum, told the judge. Without [the deposition], we dont have a shot.
Rosenbaum argued that that the prosecutors oppose any deposition of the Pakistani witnesses because their testimony could poke holes in the governments case, which is built on phone recordings of the Khan familys alleged network of fundraising for the Taliban, a U.S.-designated terrorist group.
He 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 the Talibans violence against the U.S. government interests in the region.
Assistant U.S. Attorneys Pat Sullivan and John Shipley said in court they were opposed to any deposition, even if it were taken at a modern hotel in Islamabad. They declined to say why at Thursdays hearing.
In court documents, they opposed the defenses initial deposition plan, saying Pakistan is dangerous and that the witnesses could not be questioned at the U.S. Embassy because of their involvement in the alleged crime of aiding the Taliban. A fourth witness for the defense, Noor Mohammed, is suspected of being a Taliban soldier, and a fifth is a Pakistani pharmacist who received some of the money transfers from Hafiz Khans foreign bank accounts.
On Thursday, the prosecutors called an FBI witness who served at the U.S. Embassy in Islamabad over the past year to testify about the safety risks of taking the deposition there as well as outside the diplomatic zone.
In court papers, they argued: The entirety of the governments case against these defendants concerns the Pakistani Talibans hostility, animosity and lethality towards United States citizens.
By contrast, Rosenbaum called two female professors from the University of Colorado and University of Illinois who testified that Islamabad was a modern city of diplomats, business people and relative wealth. The witnesses said the city would be safe for both prosecutors and defense attorneys to conduct the deposition in an off-site hotel.
But Scola kept raising the question about whether it would be safe for U.S. prosecutors to travel to Pakistan if the public knew the purpose of the trip: Gathering testimony for a high-profile terrorism trial in Miami against alleged Taliban supporters.
The question is whether it is safe for prosecutors to go to Pakistan, said Scola, who also noted the well-known case of a teenage girl, Malala Yousufzai, who was recently shot in the head by the Taliban to silence her because she advocated education for girls.
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; Izhar Khan, 25, the one-time leader of the Masjid Jammat Al-Mumineen mosque in Margate; his sister, Amina Khan; her son, Alam Zeb; and Ali Rehman with conspiring to provide financial support for the Taliban from 2008 to 2010.
In June of this year, prosecutors dropped the charges against the elder Khans 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.
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.
In Pakistan, Hafiz Kahns daughter, Amina, and her son, Zeb, have said the federal case distorted the patriarchs good deeds to help their family and 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.
But the conspiracy indictment portrays Hafiz Khan as a talkative Muslim spiritual leader who solicited thousands of dollars from donors in the United States, directed family members to help disburse them and openly discussed deadly plots against foes who disagreed with strict Islamic law, or Sharia.