MIAMI -- A once high-profile federal prosecution of an elderly Muslim cleric and one of his sons on terrorism finance charges has become bogged down in questions over the imam's mental stability and a legal fight over the testimony of defense witnesses who refuse to leave Pakistan, according to court records and interviews.
U.S. District Judge Robert Scola said in a recent order there is "bona fide doubt" regarding 77-year-old Hafiz Khan's mental fitness to stand trial. Prosecutors say Khan, imam at a downtown Miami mosque, was the ringleader of a group in the U.S. and Pakistan that funneled tens of thousands of dollars to the Pakistani Taliban terror group.
Details about Khan's mental issues were not provided in court documents, but he has appeared frail in court appearances and also suffered several physical health problems while in custody. If he is ultimately ruled incompetent for trial, under federal law Khan would undergo at least four months of treatment before a determination could be made on whether his competency might ever be restored.
Assistant U.S. Attorney John Shipley said in a court document filed Wednesday the government does not oppose a psychological evaluation of Khan, but he added that any evidence of mental problems so far is "unsupported and bare-bones, providing no detail at all." The test for competency in federal court is whether a person can effectively consult with his or her lawyer and can understand the legal proceedings involved.
The mental instability issue cropped up after prosecutors abruptly announced in June the dismissal of all charges against Irfan Khan, the elder of Hafiz Khan's sons. The younger son, Izhar, who is also a South Florida imam, remains jailed along with his father on charges of providing material support to terrorists that carry potential maximum prison sentences of 15 years for each count. Both have pleaded not guilty.
The three Khans and others in Pakistan were indicted in May 2011. Prosecutors say they raised money to help the Pakistani Taliban carry out attacks, including a 2009 military base bombing in Afghanistan that killed seven U.S. citizens. The organization was also tied to the May 2010 attempted bomb attack in New York's Times Square.
The backbone of the U.S. case is more than 200 intercepted telephone calls involving the Khans and three people who were also charged but have remained in Pakistan: Amina Khan, who is Hafiz Khan's daughter; Ali Rehman; and Alam Zeb. A fourth unindicted co-conspirator, Noor Mohammad, is a Taliban fighter, according to federal prosecutors.
None of the four is willing to travel to the U.S. to testify, but all have said they will give video depositions for the defense that would include cross-examination by prosecutors. Hafiz Khan's attorney, Khurrum Wahid, said they can explain the true destination of the nearly $50,000 at issue in the case and "dispel misconceptions" about the telephone conversations.
"If the government is seeking the truth they should be encouraged that the defense is actually able to provide these witnesses," Wahid said in court documents. "Without such testimony, there cannot be justice."
Prosecutors, however, are arguing against allowing the depositions in Pakistan. Assistant U.S. Attorney Michael "Pat" Sullivan said the defense hasn't proven the critical importance of the testimony and also raised concerns about the physical safety of U.S. officials who would be present.
"The nation of Pakistan is tumultuous, and there are special risks that United States citizens face there," Sullivan said in court papers.
He called three of the proposed witnesses "known Taliban sympathizers" and the fourth, Mohammad, "a known Taliban fighter" who told a confidential U.S. government source that he had killed two American soldiers in Afghanistan. Mohammad has not been charged in those purported deaths or any other crime.
Wahid said defense attorneys would work with the U.S. to find a location for the depositions that was both safe and not likely to lead to the arrests of the four witnesses.
Ultimately it is up to Scola to decide whether to allow the Pakistani testimony. Such overseas depositions have been permitted in previous international cases in Miami and elsewhere.
The outcome of both the Hafiz Khan mental health issue and the depositions will determine whether the current Nov. 13 trial date will stand.