MIAMI — A Pakistani-American man cleared of terrorism support charges is entitled to examine hundreds of classified FBI phone intercepts as part of his malicious prosecution lawsuit against the U.S., a Florida federal judge ruled Tuesday.
The FBI has resisted turning over the calls to Irfan Kahn and his lawyer, contending that some might jeopardize national security and that reviewing them would be too burdensome. But U.S. Magistrate Judge John O'Sullivan said Kahn should at least get up to 700 previously unreleased calls in which he was a participant.
"You're getting the calls that he is a party to," O'Sullivan told Kahn's attorney, Michael Hanna, at a hearing.
Hanna wants the calls because they could bolster Khan's claims that the FBI knew he was innocent before he was charged with conspiring along with other family members to financially support the Pakistani Taliban terror group. Khan spent 319 days in jail before prosecutors dropped all charges without explanation; the FBI insists it never knowingly misrepresented or omitted evidence.
Khan's father, Muslim imam Hafiz Khan, was convicted in 2013 of supporting the Taliban and is serving a 25-year prison sentence. Another son, Izhar Khan, was ordered acquitted because of lack of evidence during the trial by a federal judge. Khan's sister, Amina, also was charged but remains in Pakistan.
The FBI intercepted about 40,000 calls during the multiyear Khan investigation, most of which were deemed not pertinent to the criminal case. Even with O'Sullivan's order, Justice Department lawyer Kyle Freeny said some particularly sensitive calls may still be withheld under the state secrets privilege if they might disclose investigative techniques, methods and sources.
"Anything you don't give to him, you tell me why it has to remain classified," O'Sullivan said, setting a Jan. 15 deadline.
Hanna also has encountered roadblocks obtaining other evidence for the lawsuit, including the memos and emails detailing why prosecutors decided to dismiss all charges against Khan and the FBI's investigative file. Hanna said most of the hundreds of pages in the file were blacked out, either because the information is classified or deemed law enforcement privileged.
"It's too easy for them to argue that it's privileged," Hanna said. "The entire investigative file is relevant to the case. They've given me nothing."
O'Sullivan ordered the Justice Department to provide Hanna with logs describing the various blacked-out documents in the FBI file, with decisions to be made later on whether any will be released.
Khan, a naturalized U.S. citizen living in Broward County, Florida, is seeking unspecified damages in his lawsuit. It is scheduled to go to trial in June.
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