Federal prosecutors say it’s too dangerous for them to travel to Pakistan to interview witnesses for the upcoming trial of two South Florida Muslim clerics accused of funneling money to terrorists.
But the defense attorneys pressed a federal judge on the issue and plan to visit the volatile region in February during a trial break. They hope the witnesses can help exonerate their clients, Hafiz Khan and his son, Izhar Khan.
In interviews with the Daily Business Review, the attorneys for the father-and-son imams talked about the undertaking and gave a preview of what they plan to argue in front of a jury next month.
It’s a defense that will partly center on free speech, a government informant who infiltrated the clerics’ mosques and whether the defendants knew money sent to Pakistan was earmarked for the Taliban.
“This is like putting on a wedding for a thousand people with a staff of two,” said Joseph Rosenbaum, the Miami attorney for Izhar Khan. “This is a tremendous undertaking.”
“Surprisingly, it seems no one has had to do live encrypted video depositions from Pakistan to Miami before. Go figure,” said Khurrum Wahid, a partner at Wahid Vizcaino in Pompano Beach. He represents the father.
The trial is set to start Jan. 2. When U.S. District Judge Robert N. Scola breaks for a judicial conference, the defense attorneys will head to Pakistan. The prosecutors will be allowed to cross-examine the witnesses via a live video feed. The defense attorneys will then decide whether to present the testimony to the jury.
“The logistics are in motion,” Wahid said. “It has been a distraction of our time to make these arrangements, but the technology in Pakistan is there, so it will happen.”
In pleadings, prosecutors John Shipley and Patrick Sullivan said they felt the attorneys’ safety could not be guaranteed in Pakistan, citing news reports and State Department travel warnings.
At an Aug. 30 hearing, Wahid told Scola that Pakistan was safer than other countries for witness examinations. “Pakistan is not Mogadishu” in Somalia, he said.
But Sullivan rebutted: “The government really doesn’t think there is a real factual dispute about the dangerousness to prosecutors and agents in Pakistan if we were to go there to take depositions. I don’t think anyone disputes that it is very dangerous.”
So in a compromise, prosecutors will be allowed to question five witnesses remotely.
“What the judge said was he wasn’t ordering them to go. I could understand the rationale, and if they want to do the cross- examination from the safety their office or safety of courtroom I don’t fault them,” Rosenbaum said. “But we will be there.”
Rosenbaum doesn’t foresee a safety issue in Islamabad.
“It’s a city of diplomats. All the embassies are there,” he said. “It’s not like we are going to the Swat Valley. We are not going to Peshawar.”
Cuban spy case
Coral Gables attorney Paul A.McKenna represented Gerardo Hernandez, one of five men accused of spying for Cuba in the 1990s. He said depositions and witness examinations in Cuba occurred routinely in that case and were crucial to the defense, which ended in convictions.
“Everything Judge Scola is ruling upon sounds like what happened in the Cuban spy case,” McKenna said. “The defense has a right to put on witnesses. That’s the American way. You don’t get in the way of that.”
McKenna said advances in technology such as Skype make travel unnecessary for prosecutors.
The prosecution, for its case, is relying primarily on wiretaps of about 1,000 phone conversations, most in the language of the Pashtun people of south-central Asia. It is in these conversations that Hafiz Khan, the father and the imam of the Flagler Mosque in Miami, allegedly made incendiary statements against the United States
Prosecutors said he called for a suicide bomb attack on the Pakistani parliament and the assassination of Pakistani officials, including president Asif Ali Zardari.
U.S. Attorney Wifredo A. Ferrer said at the time of the indictment in May 2011 that Hafiz Khan “was by no means a man of peace.”
His son, Izhar Khan, was the iman of the Masjid Jamaat Al-Mumineen mosque in Margate. They are charged along with Hafiz Khan’s daughter, Amina Khan; her son, Alam Zeb; and Ali Rehman with conspiring to provide material support to Taliban terrorists from 2008 to 2010.
Rosenbaum and Wahid argued in a hearing last month that the Pakistani witnesses would provide context to the wiretaps and help support the claim that the clerics thought they were providing $50,000 for schools and families in war-torn regions of the country.
Wahid said the money went to relatives, a school and other needy people. “These witnesses complete the story as to where the funds ultimately went and for what purpose,” Wahid said.
Rosenbaum noted during the bond hearing that the government could not say specifically where the money went after it was wired from the defendants to Amina Khan in Pakistan.
“That is powerful,” Rosenbaum said.
The defense has already had to deal with mighty hurdles. Wahid and Rosenbaum had to find an independent interpreter to translate the wiretaps. Rosenbaum said, “The elephant that will be in the courtroom is the Taliban. After 9/11, it’s tough.”
Also at issue is the psychological state of Hafiz Khan, both before his arrest and during his incarceration. Was his call for an Iranian-style revolution to establish Islamic law in Pakistan attributable to the rantings of an old Pakistani man and, though offensive to many Americans, protected speech?
Scola found him mentally competent to stand trial after proceedings were temporarily suspended.
“My client is old and frail,” Wahid said. “He is still in solitary confinement, and as the season changes he finds it unbearably cold in his cell. This is more than a 78-year-old man should have to endure. He is looking forward to the start of trial and an opportunity to be vindicated.”