FBI refuses to turn over classified phone intercepts

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Irfan Khan, a naturalized U.S. citizen from Pakistan, was indicted on terrorism charges, along with his father and brother — both Muslim imams at South Florida mosques. They were accused of conspiring to provide up to $50,000 to the Pakistani Taliban terror group. Irfan Khan spent 319 days in solitary confinement, but in June 2012, federal prosecutors abruptly dropped all charges. Khan’s brother was also acquitted by a federal judge, due to the lack of evidence. The elderly father, Hafiz Khan, was convicted at trial and sentenced to 25 years behind bars.

Irfan Khan is currently suing the U.S. government for malicious prosecution. He is accusing authorities of manufacturing a non-existent case against him. A Miami federal judge refused the attempt by the Department of Justice (DOJ) to get the case dismissed. It is currently set for trial in June 2015.

This is not the first time the government stands accused of overreach in its “war on terrorism.” The odds are stacked against the defendants in criminal cases, as well as plaintiffs attempting to successfully sue the government on the grounds of malicious prosecution. In this lawsuit, the FBI is refusing to turn over thousands of classified phone intercepts. The agency is claiming that it would take about two years to declassify and translate up to 40,000 calls from the Pashto and Urdu languages, before they could be released to Irfan Khan for the lawsuit. This statement is very alarming, since it shows that the FBI didn’t bother to translate thousands of telephone calls deemed to be relevant to the prosecution at issue. The calls, potentially containing exculpatory evidence, should have been declassified and turned over to Khan’s lawyers in the criminal case, years earlier.

Irfan Khan’s civil attorney, Michael Hanna, believes that the intercepted calls may contain material showing that the government had compelling evidence of Khan’s innocence, but chose to prosecute him nonetheless. The lawsuit alleges that Khan was unfairly arrested on flimsy evidence in 2011 in an FBI probe into his Muslim imam father’s alleged support for the Taliban. Khan was essentially prosecuted for listening to his father’s rants against the Pakistani government and for sending small amounts of money to his relatives in Pakistan, which he wired using his own name.

The government claims that the evidence was sufficient and points out that the grand jury returned an indictment against Khan. It is well known that federal grand juries often rubber-stamp cases presented by the government, since the opposing party or defendant has no opportunity to participate. The predictable outcome is best described by the longstanding aphorism that a grand jury can be persuaded to indict a ham sandwich.

The FBI claims that the vast majority of the calls being sought for Khan’s lawsuit are still classified, because they may reveal FBI sources and surveillance methods. The DOJ’s filing states that “The tens of thousands of calls that (Khan) seeks bear no relevance to any of the elements of a malicious prosecution claim, and will not lead to any evidence that does.” However, it is unclear how the feds know whether the calls are relevant to the prosecution, since they haven’t even been translated.

Even if a judge orders the calls to be released, the government will most likely use the state secrets privilege to avoid producing them. The government’s memo filed in court sets the stage for this course of action, by asserting that information can be withheld “when genuine and significant harm to national defense or foreign relations is at stake.” Our national security would be better served if the government solved real cases of terrorism, instead of putting on security theater 101, where questionable prosecutions are concocted out of thin air for the sake of appearances and statistics.

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