MIAMI —
The FBI is resisting turning over thousands of classified phone intercepts to a Florida man who is suing the U.S. government for malicious prosecution in a case in which the Justice Department dropped charges that he provided support to the Pakistani Taliban terror group.
The FBI contends in court documents it would take about two years to declassify and translate up to 40,000 calls — most are in the Pashto and Urdu languages — before they could be provided to Irfan Khan’s attorney for the lawsuit.
The attorney, Michael Hanna, wants access to the calls to determine if any contain material that could bolster his legal case by potentially showing the government had compelling evidence that Khan was innocent. A Nov. 25 hearing is set before a Miami federal judge on the issue.
Khan, a 41-year-old naturalized U.S. citizen from Pakistan, claims in his lawsuit that he was unfairly arrested on flimsy evidence in 2011 in an FBI probe into his Muslim imam father’s support for the Taliban. The father, Hafiz Khan, was convicted in March 2013 and is serving 25 years in prison. But the Justice Department abruptly dropped all charges before trial against Irfan Khan — after he had already spent 319 days in jail.
Hanna said that compared with Khan’s ordeal, the FBI’s claims that releasing the calls would be too great a burden fall flat — particularly since the calls could have been declassified and turned over years earlier to Khan’s lawyers in the criminal case.
“It was a lot more burdensome for Irfan to spend 300 days in jail than it is for government agents to review calls that were previously made available to Irfan,” Hanna said. “It doesn’t pass the smell test.”
The vast majority of the calls being sought for Khan’s lawsuit are still classified because they may reveal FBI sources and surveillance methods, according to the bureau.
“The unauthorized release of these items could cause harm to the national security of the United States,” wrote Michael Steinbach, head of the FBI Counterterrorism Division, in one court filing.
In addition, the Justice Department has already provided Khan with 1,130 recordings, 3,500 pages of documents and secret grand jury transcripts from the criminal case, the FBI says.
“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,” wrote Assistant U.S. Attorney Carlos Raurell in a recent filing.
The FBI is offering Khan another option: by using toll records, agents were able to isolate between 500 and 700 intercepted phone calls in which Khan was probably a participant. Declassifying and translating those would take about six months, the bureau says.
The Justice Department could still withhold some of the calls even if a judge ordered them released. Under the state secrets privilege, the government can withhold information from a lawsuit such as Khan’s “when genuine and significant harm to national defense or foreign relations is at stake” and only in the most limited way possible, according to an agency memo filed in court.
It is not clear if the Justice Department will seek to invoke that privilege.
The overall lawsuit, seeing unspecified damages from the government, is currently set for trial in June before U.S. District Judge Cecilia M. Altonaga.
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