At dawn on May 14, 2011, more than two dozen federal agents and local police officers converged on a working-class neighborhood near the Miami airport and surrounded a small green-and-white stucco building—Masjid Miami, one of the city’s oldest mosques. Police sealed off a two-block radius, and F.B.I. agents, some armed with AR-15 rifles, assembled outside the door.
Inside, eight men were kneeling for the first prayer of the day. When agents called for them to open up, one of the worshippers, a former police officer, went out and asked them to wait until the prayer was finished. The agents complied, and then they arrested the mosque’s imam, Hafiz Khan, an émigré from a mountainous corner of Pakistan near the Afghan border. Khan was in his late seventies, an albino with thick glasses and a long colorless rush of beard. He had moved to America, with members of his family, in 1994, at the encouragement of a younger brother in Alabama. They became citizens, but Khan spoke no English and rarely left the mosque or a one-room apartment across the street, which he shared with his wife, Fatima. He was known to some of the locals as el viejito barbón—the old bearded man. Kids referred to him as the Santa Claus imam.
While the F.B.I. was arresting Khan, another team of federal agents and police assembled forty miles away, in the city of Margate. They surrounded Jamaat Al-Mu’mineen, a large mosque presided over by Hafiz’s youngest son, Izhar Khan. Izhar, who was twenty-four, was about to lead the morning prayer when agents in F.B.I. windbreakers confronted him in the parking lot. Izhar had moved to Florida when he was eight years old, and he spoke barely accented English. He wore a long dark beard, a black cotton robe, and a skullcap. The agents examined the computers in his office, and when they searched his cell phone they noticed that many of his text messages were about the Miami Heat and other teams.
Meanwhile, a third maneuver in the F.B.I.’s operation against the Khans was unfolding in Los Angeles, where it was 3 A.M. and Izhar’s brother Irfan, a thirty-seven-year-old software programmer, was asleep in his room at the Homestead Studio Suites, an inexpensive business hotel in El Segundo. Married, with two kids, Irfan was a sitcom buff who made hammy jokes about his waistline. (“This won’t be good for my diet!”) He lived in Miami and worked for American Unit, an I.T. company. For the past three months, he had been commuting every two weeks to an assignment in El Segundo. He was awakened by a phone call from the police, advising him to go to the door. He was handcuffed and led to a waiting car, past bomb-sniffing dogs and helmeted men in camouflage.
After the arrests, federal authorities announced that, in all, six people in Florida and abroad had been charged with funnelling tens of thousands of dollars into a conspiracy to “murder, kidnap, or maim persons overseas,” orchestrated by the Pakistani Taliban, an ally of Al Qaeda. The group was known for having trained Faisal Shahzad, a Pakistani-American who, in May, 2010, tried to set off a car bomb in Times Square. In 2012, Pakistani Taliban gunmen boarded a bus in northwest Pakistan and shot Malala Yousafzai, a fifteen-year-old schoolgirl who had called for the education of women.
The F.B.I. had been secretly tracking the Khans for at least a year, monitoring their finances and recording thousands of hours of conversation, in person and on the phone. Two other members of the family were also indicted—a daughter and a seventeen-year-old grandson, who live in Pakistan—along with a Pakistani shopkeeper, who had served as a middleman. In the indictment, they were accused of conspiring to buy guns, shelter the Taliban, and send students “to learn to kill Americans in Afghanistan.” The indictment described phone calls from Miami, in which the father “called for an attack on the Pakistani Assembly” and “called for the death of Pakistan’s President.” The U.S. Attorney Wifredo A. Ferrer told the Sun Sentinel that a list of cash transfers totalling fifty thousand dollars was “just the tip of the iceberg,” and declared, “We will be able to prove that there is more than fifty thousand dollars that went to the Taliban.” Each of the accused faced between forty-five and sixty years in prison.
The process that landed the Khans in court began, in effect, shortly after the September 11, 2001, attacks, when John Ashcroft, the Attorney General, sent a memo to senior law-enforcement officials declaring a new focus: “proactive prevention and disruption.” It marked a fundamental shift, from pursuing terrorists after the fact to preëmpting them, by arresting their supporters as early as possible, often with the help of informants. In a 2003 bulletin to U.S. Attorneys, a Department of Justice official identified laws that allow “strategic overinclusiveness.” In those cases, the connections to violence can be attenuated: in the Khan case, prosecutors charged the defendants with, among other things, conspiring to conspire—intending to support others who, in theory, intended to engage in terrorism.
The growing use of informants in the campaign against terrorism has drawn criticism from lawyers and activists, and even from some judges; they say that the F.B.I. has used informants to manipulate people who are vulnerable because of mental illness or financial desperation. In a terrorism case in 2011, known as the Newburgh Four, Judge Colleen McMahon faulted the F.B.I. for “trolling among the citizens of a troubled community, offering very poor people money if they will play some role, any role, in criminal activity.” In that case, an informant in Newburgh, New York, offered four men a quarter of a million dollars, a BMW, and other rewards to shoot down military planes, and to set off explosives at two synagogues in the Bronx. They joined the plot. The judge called their actions “beyond despicable,” but, referring to the ringleader, she said that the bureau had manufactured a terrorist out of a former Walmart employee whose “buffoonery is positively Shakespearean in its scope.” (She rejected the prosecutor’s request for life sentences, and sent the accused to prison for twenty-five years, the statutory minimum.)
The case against the Khans rested on the two most frequently used tools in the legal battle against terrorism: conspiracy and “material support.” Under material-support laws, it is a felony to knowingly provide money, shelter, or technical advice to anyone involved with terrorism. Before 2001, the Justice Department had used that charge on only six occasions; in the first three years after 9/11, the department filed the charge nearly a hundred times, but then its use subsided. Recently, the pace has accelerated again. This year, the Justice Department has filed material-support charges against at least fifty-seven defendants who are accused of allying with the Islamic State. The Khan-family case bore many hallmarks of America’s legal battle with terrorism, but counterterrorism officials rarely set out to capture what a prosecutor called “an entire family that has participated in extreme violence.” Rarer still does a case evolve in such a way that, once it’s over, the family tells its story.
The Khans came from the Swat Valley, a fertile corridor amid the mountains of the Hindu Kush. Since the Soviet invasion of Afghanistan, in 1979, Swat has seen a series of conflicts among governments, Islamic radicals, and local residents. Pashtuns, the dominant ethnic group in Swat, have been embroiled in the violence: in Pakistan and Afghanistan, more than a million have been killed, and millions have been displaced.
Hafiz Khan was descended from a landowning Pashtun family. Like other albino or blind children in the countryside, he was considered unfit for work in the fields, and was sent to an Islamic school, where he became a cleric. He married Fatima, and they had eleven children. Six survived to adulthood. Eventually, his two daughters settled down near their husbands’ families in Pakistan, and he encouraged his four sons to pursue greater opportunities in America.
Even after moving to Florida, Hafiz acquired few of the trappings of American life. His friend Anwar Ansari, a registered nurse who served as a translator for Hafiz at the mosque, once accompanied him on a pilgrimage to Saudi Arabia and noticed that all of Hafiz’s belongings fit in two plastic grocery bags. Hafiz’s eyesight was poor, and he relied heavily on the phone to stay informed about life back home. When his wife got fed up with calls in the middle of the night, she removed the phone from the house. He spent many hours sitting on the floor of the mosque, talking on the phone—even, sometimes, when worshippers were trying to pray. Between February, 2009, and October, 2010, the F.B.I. collected thirty-five thousand calls, an average of three or four every waking hour. That number did not surprise his children. Irfan said, “He calls somebody and says, ‘What happened in Pakistan, what happened today?’ And they would tell him, and then he would try to call somebody else and say, ‘Hey, did you hear about this?’ ” When Hafiz was dissatisfied with something, he sent letters. After his daughter Husna was unable to enter the United States, in October, 2010, he addressed a letter to the Secretary of State, Hillary Clinton. “I humbly request your intervention into the unjust revocation of the visa for my daughter and her children,” he wrote. Beneath his name and signature, he identified himself as “Concerned U.S. Citizen & Petitioner.” (He received no response.)
Hafiz urged his children to send money home to relatives or to the needy, in the Muslim tradition of charity known as zakat. Since he lived simply, over the years he had sent thousands of dollars to Pakistan—mostly to support a mosque and an Islamic school, the Madrassa Arabia Ahya-al-Aloom, in Swat, which he had founded in 1971. He had ambitions to expand, and when the complex needed repairs he told a friend that the school was “dearer to me than my children.”
Among friends, Hafiz was known to have a short temper and a harrowing repertoire of khairey—the distinctive Pashto prayers for misfortune. When a granddaughter wouldn’t stop crying, he said, “May God just make her dead.” When his son left his daughter-in-law at home to cook, Hafiz told her, in sympathy, “May he be run over by a truck.” (Hafiz Khan was later asked if he actually wished his son to be run over by a truck, and he replied, “It looks like a curse word, but I didn’t mean for God to have him under the truck. This is something just to alarm him.”) Other common khairey include “May you be riddled by bullets” and “May you be destroyed beyond recognition into the abyss of oblivion.” Zeeya Pashtoon, the author of an authoritative Pashto-English dictionary, told me that dramatic curses are a common relief valve in Pashtun conversation, particularly among women and elderly men. For those who feel powerless, “these phrases and terms are the only weapons to get it off their chests,” he said.
In time, the family tuned out Hafiz’s rages. “He cannot speak English, he cannot go outside and do things on his own. So he’s totally dependent on somebody else,” Irfan said. Hafiz routinely described Pakistan’s leaders as pimps, pigs, sons of donkeys, huge bastards, and dumb-asses. He begged God to punch them, cut them into pieces, and make them so scared that “when they sit down to shit their guts start to spill out.”
His sons inhabited a different world. Where the father was a fierce, inveterate talker, Izhar, the youngest, was genial and laconic. A jogger and a gym buff, he wore basketball shorts beneath his robe so that he could shoot hoops between prayer sessions. He had graduated, in 2008, from Darul-Uloom Al-Madania, a prominent high school in Buffalo, which combines Islamic education with New York State’s public-school curriculum. At the mosque, members joked that he resembled the actor Patrick Dempsey and nicknamed him Mufti McDreamy.
The older son, Irfan, had less interest in Islam. Growing up in Swat, he loved broadcasts of “Knight Rider,” the action series starring David Hasselhoff as a private investigator who drives a talking car. A relative, on a visit to Pakistan, told him it was fake, but Irfan kept his hopes up, saying, “You live in America but you don’t know anything. That car is real. It talks, it flies, it fires missiles, it does whatever you want.” After he moved to Florida, Irfan studied English, mowed lawns, and worked as a handyman, a job that a fellow Pakistani immigrant told him to cherish. Irfan helped the two other brothers come to Florida: Ikram became a cabdriver; Izaz managed an ice-cream shop. But Irfan was the most ambitious. He told others, “I’m going to go to school, I’m going to get a decent job, I’m going to work in an office somewhere.” In 1994, he took the taxi exam, and later leased a Suburban and started a one-man limo business. He wore chinos and Greg Norman golf shirts, took programming classes at night, and got the job at American Unit. The company brought him out to Los Angeles to install software at International Rectifier, a technology manufacturer. If things went well, he hoped to stay on there, and resettle his family in California.
While life was improving for members of the Khan family in America, it was collapsing for its members in Pakistan. Residents of the Swat Valley had grown frustrated. They wanted investment in schools and roads, and they reviled Pakistani courts as corrupt and slow. People talked fondly of legal codes based on Islam and local tradition, and ideologues capitalized on their discontent. Beginning in the nineteen-nineties, a local forerunner of the Pakistani Taliban gained support by preaching justice, fairness, and virtue.
But after the Pakistani Taliban formed, in 2007, the group proved vicious. It blew up more than a hundred girls’ schools, and hanged the bodies of its enemies from traffic lights. In the spring of 2009, the Army set out to destroy the group by attacking the Swat Valley with helicopters, tanks, and artillery. Civilians were trapped in the crossfire. Some 1.5 million people—eighty per cent of Swat’s population—fled their homes, including many members of the Khan family. Hafiz’s elder daughter, Amina, a mother of eight, joined the exodus. She called her father in Miami. He was distraught. In a call on July 8, 2009, in which he was told that the Army had “shot up the old places with tanks,” Khan unleashed a barrage of Pashto curses on the Pakistani President, Asif Zardari, and his backers. “May Allah destroy them,” he said, and wished that God would “hit them with his shells of wrath.” He went on, “May they be broken into pieces, and may people respect a dog more than them.”
Hafiz urged Irfan to send five hundred dollars to his sister. He dispatched Izhar to pick up a three-hundred-dollar donation from a local doctor. His son-in-law Anayat Ullah was trying to start a potato-chip factory in the town of Shaidu, and he wanted tens of thousands of dollars. The F.B.I. was listening to all these conversations. The previous fall, the bureau had taken note of Hafiz’s money transfers and opened a case.
In early 2010, a stranger began attending prayers at Hafiz’s mosque. David Mahmood Siddiqui was a Pakistani émigré in his mid-fifties, with a prominent nose and a thin sweep of dark hair. He introduced himself as a successful businessman, a chef who had owned several companies. He mentioned that one of his businesses had earned him two million dollars. He befriended the imam, driving him to doctor’s appointments and bringing food. Siddiqui asked Ansari, the mosque assistant, for private lessons in the Koran, but after a couple of sessions he seemed more eager to talk about politics, Pakistan, and jihad. Ansari recalled, “I said, ‘Look, man, in the masjid, when you come in the masjid, when I come in the masjid, all we talk about is religion.” In May, 2010, Siddiqui offered Hafiz five thousand dollars to help repair his school in Swat. Hafiz was elated. He made calls to arrange for the purchase of iron and cement, and he described Siddiqui as his “best friend.”
Siddiqui was an informant, paid by the F.B.I. to wear a wire and record Hafiz. The lead agent on the case later said, in court, that Siddiqui was “playing the role of a Taliban sympathizer,” in the hope that Hafiz would say things to him that he would be wary of saying to others.
Siddiqui taped his conversations with Hafiz as they ran errands in his car. In one exchange, Siddiqui said that he had “very big news”—that the Taliban had killed ten Christians—and asked, “You must be very happy?” Hafiz replied vaguely. “Oh, Allah,” he said. After more back-and-forth, Hafiz said, “So now you have told me, so now I am getting happy.” On another occasion, Siddiqui talked about American soldiers fighting Islamic militants in Afghanistan, and noted that the Taliban had killed several soldiers that morning, when it downed their helicopter. “Allah, Allah. Where?” Hafiz asked. They talked about the details, and Hafiz said, “The Americans must have been heartbroken. . . . Because their heart is broken even at the death of one man and because their wives worry a lot, too. . . . But may Allah bring death to fifty thousand of them.”
Siddiqui gradually escalated his praise for violent militants. On July 19, 2010, he urged Hafiz to support the Pakistani Taliban. He asked, “So why don’t you send them money from here, from Muslim people here . . . so that the Taliban can buy guns?”
Hafiz was noncommittal. He said, “People give—they give a lot.”
Siddiqui persisted: “We should send them money from here so that they can buy guns.”
Hafiz replied, “Huh. Huh.”
Siddiqui tried again: “Don’t they send or not?”
“They do send,” Hafiz said. “But not in this way that you send it in the name of the Taliban. There will be a certain person of yours over there. . . . You will send it to him.” Then, later in that conversation, Hafiz uttered a fateful statement: “People have given me in small amounts. I added some from my side.”
Siddiqui asked for confirmation: “And all the money is for Taliban?”
“Yes, it’s for Taliban.”
At Miami’s Federal Detention Center, the Khans were placed in solitary confinement, in the Special Housing Unit, or S.H.U. In their cells, the father and the two sons were not permitted to communicate with one another. As months passed, they moved mainly between two locations: their cells and a room where they were allowed to meet lawyers and see court documents. Whenever they entered or left the document room, they were strip-searched side by side, separated by curtains. Since the father didn’t speak English, Irfan translated the guards’ instructions through the curtain: Raise your arms, stick out your tongue, say “Ahh,” spread your legs, turn around, squat, cough.
Once a week, the Khans were permitted a fifteen-minute phone call with family. After six months, they gained the right to receive weekly visits. Irfan and his wife agreed to tell their children, aged five and four, that their father was on assignment in a high-tech lab, which explained why they would see him in a jumpsuit, behind a plexiglass partition. The story held until his daughter, watching television, saw a man in jail wearing a jumpsuit. She told her mother gently, “I don’t think Papa is working in a lab.”
On days when the Khans did not go to the courthouse, each spent twenty-three hours alone in his cell, an increasingly routine, and controversial, arrangement for defendants who have yet to be tried. In October, 2011, five months after the Khans were placed in the S.H.U., Juan Méndez, the United Nations Special Rapporteur on Torture, presented a study in which he concluded that the United States and other countries were using pretrial solitary confinement to pressure defendants into accepting plea bargains. Hafiz and Izhar Khan were offered a plea, but they rejected it.
After nine months in solitary, the Khans had responded to isolation in different ways. Izhar watched an elevated train that was visible from his window; he read, and reread, the graffiti on his walls, and he did pushups until he could perform fifteen hundred a day. Irfan was denied a request to attend the jail’s job-training courses but was eventually granted a radio. He looked forward to Saturday, when National Public Radio broadcast “Car Talk” and “Wait Wait . . . Don’t Tell Me.” Their father, who was often disoriented, spent much of his time in bed. At night, the sons were awakened by the sound of their father praying in his cell.
As Irfan Khan and his attorneys examined the case in preparation for trial, they noticed inconsistencies. During Irfan’s first visit to court, Assistant U.S. Attorney Chris Gregg had said that Western Union records “plainly stated” that Irfan sent money to Akbar Hussein, whom Gregg described as the Taliban commander in Kaboswat, Pakistan. At the time, Irfan was mystified, but now, months later, he examined the Western Union record and noticed that it made no mention of Hussein the Taliban commander. It listed the name and government-I.D. number of his wife’s uncle, Akbar Hussain, a retired biology professor, who had taught at local universities.
There were other elementary mistakes. The F.B.I. cited a phone call in which Irfan said he would send his father the “thing.” Investigators alleged that “thing” referred to a list of money transfers to the Taliban, although the F.B.I. had taped a phone call explaining that it was a list of nursing schools for a friend hoping to study in the U.S. To argue that Irfan took steps to “conceal” money transfers, a prosecutor had said that they were “structured to be just under one thousand dollars to avoid suspicion.” But prosecutors had a recorded phone call in which Irfan told his father that he kept transfers under a thousand dollars in order to avoid higher Western Union fees. Irfan’s lawyer, Michael Caruso, who has since become the federal public defender for the Southern District of Florida, told me, “This case was stunningly weak.”
For months, Caruso and another public defender, Sowmya Bharathi, argued that Irfan should be allowed out on bail. In April, 2012, the court agreed. After more than ten months in solitary confinement, Irfan was released to await trial, with an electronic monitor on his ankle. (He and his wife told the kids that it was measuring his blood pressure.) On June 13, 2012, shortly before the trial was to begin, prosecutors abruptly dropped all the charges against him. They provided no explanation, and they declined to comment for this article.
Irfan tried to re-start his life. He had lost his job as a programmer, and he couldn’t make the payments on the Suburban, so he had to give up the limo service. While he was in jail, his wife found a note on their front door, in English: “We don’t want to see any Taliban in this apartment.” (She asked me not to publish her name or the names of the children, for fear of retaliation.) They found a new place to live, a quiet house, shaded by a banyan tree, but some friends still worry about being associated with her. “They blocked my number, and then they came to the house and they told me—not all of them, but some—that we are scared, so please do not call us,” she said.
When I asked Irfan how he made sense of the experience of being accused and released, he said, “Did you ever see the ‘Seinfeld’ finale?” He reminded me that Jerry Seinfeld and his friends were put on trial. “It was such a baloney case,” he said. “Mine was very similar.”
After the charges against Irfan were dismissed, attention shifted to his father and his brother. But as soon as Izhar’s trial began, on January 4, 2013, the case against him showed signs of overreach as well. Although Assistant U.S. Attorney John Shipley described the Khans, in court, as “an entire family that has participated in extreme violence,” there were no charges or evidence suggesting that any of them had participated in violence. In all the recorded calls, Izhar never mentioned the Taliban or militant activity. His lawyer, Joseph Rosenbaum, noted that, when the father and son were secretly recorded after their arrests, Izhar was heard encouraging his father to coöperate with investigators, saying, “You just tell them everything.” Rosenbaum compared the case to a car with “no bolts in it” and said, “When you drive it, it falls apart.”
On January 17th, Judge Robert Scola agreed. He issued an unusual ruling in Izhar’s case: a “judgment of acquittal,” the determination that the evidence against a defendant is so lacking that no reasonable jury could convict. That action occurs in fewer than one in every thousand federal cases. The judge said, “I do not believe in good conscience that I can allow the case to go forward against Izhar Khan.” After sixteen months in solitary confinement, and four in the jail’s general population, Izhar was released. On his first day back at the mosque, he addressed four hundred worshippers; he believed that he had been charged “because of the way I look, my scary-looking beard.” He made brief comments to the press—he joked that he had a lot of basketball to catch up on—and then he dropped out of sight.
This spring, I visited Izhar at the mosque. To help pay for his defense, he had sold his house and his car. He now sleeps in the office, or in a converted storage room in an unused bowling alley next door. Shortly after the arrests, a group of men and women carrying American flags had picketed the mosque; one man wore a T-shirt that said “No Jihad in Our Backyard.” But now the protesters were gone, and Izhar said that he had been touched by the support of his neighbors. I was struck by his calmness. “They are doing their job,” he said of the F.B.I., but it had changed his view of law enforcement. “I was always confident, doing whatever I’m doing, because I’m not doing anything wrong,” he said. “There’s nothing I have to worry about, because I knew that they knew everything. But after the case I realized that is not really true.” He excused himself to lead the afternoon prayer. Then we went to a strip mall in Coral Springs for hamburgers. He told me, “They were suspicious and they arrested us. Up to that point, I have no problem. But then, once they realized, and they knew that I wasn’t sending millions of dollars, like I told them, and everything was clear, why did they decide to continue with that? Just to save their reputations?”
That left only the trial of the father. Khan was charged with two counts of conspiracy and two counts of providing material support. The government conceded that it had no evidence that any money had reached the Taliban, but if a jury concluded that Hafiz “intended” for his money to reach the Taliban that would be enough to convict. To prove, as the indictment put it, that Hafiz had “called for an attack on the Pakistani Assembly,” prosecutors introduced a phone call in which Hafiz cursed members of the legislature and said, “These motherfuckers in the Assemblies . . . may Allah cut them into small portions.” To argue that he “called for the death of Pakistan’s President,” they cited his references to the “gangster Zardari” and his curse “May Allah hit them with his shells of wrath.” In Hafiz’s conversations with Siddiqui, the informant, he had not only agreed to help get money to the Taliban but boasted that his grandson was “associated with the Taliban.” He had said that his daughter was a “devout follower,” and that the Taliban trained students at the school in “fighting Americans.” (Away from the informant, Hafiz was recorded warning his grandson that Siddiqui “talks nonsense” and should be indulged only because he planned to give money to the school. “He is a very nice person, but he is also stupid,” Hafiz said.)
Prosecutors focussed, most of all, on one of Hafiz’s relatives: a nephew named Abdul Jamil. At the height of the fighting in Swat, Hafiz spent much of his time trying to find out who was safe and who was in danger. In a call with Jamil’s sister, in July, 2009, he asked after her brother. “Jamil was badly shot,” she said, adding, “I don’t even know if he still has the foot intact or not.” She said that Jamil was “hit along with Shah Dauran.” The name was crucial: Shah Dauran is also the name of a senior Taliban leader, and prosecutors held up the call as proof that Jamil was fighting for the Taliban. In another call about the wounded nephew, Hafiz said that he would “arrange ten thousand rupees for him”—about a hundred and twenty dollars. Hafiz’s lawyers described the money as help for an injured relative, but Shipley, the prosecutor, said that that was irrelevant: “It doesn’t matter whether they are family or not.”
In his defense, Hafiz told the jury, through a translator, that he had been dishonest with Siddiqui all along—about supporting the Taliban, about his daughter and his grandson, about sending students to be militants. He said, “There are many times that I am agreeing with him, but that does not mean that I mean it. I didn’t want to harm anyone.” His lawyers accused prosecutors of cherry-picking words to create a sinister portrait, and brought up calls in which Hafiz spoke warmly of America and against the Taliban. “We say here that it would be really good if America takes over the whole of Pakistan,” he told a friend. He called Taliban leaders the “biggest bastards,” and wished that they would surrender. On another occasion, he wished a pox on anyone harming civilians, saying, “May God destroy them whoever it is, whether they are mischievous or if they are the Taliban or if they are from the government.” Judge Scola had agreed to allow witnesses to testify under oath from Pakistan, on a live video feed, but shortly after it began the video cut off and could not be restored. Scola said that he could not allow further delays, and the trial continued. The defense had lost eleven of its eighteen witnesses.
In the end, despite the U.S. Attorney’s earlier statement to the press that the fifty thousand dollars was only the “tip of the iceberg,” there were no additional revelations. One of the prosecutors, Sivashree Sundaram, told the jury that it was more than enough to convict. “We only need one—one example of even just conspiring,” she said. “The defendant attempted to get his money to the Taliban in this case, and that’s it.” She went on, “The ‘why’ of his actions is completely irrelevant.”
In his closing argument, Hafiz’s lawyer, Khurrum Wahid, asked the jury to see the imam as a man more likely to write a letter than to pick up a gun. “That is an old guy running a scam—but got scammed,” he said. The federal government had accused the Khans of a heinous crime: supporting a conspiracy to “murder, kidnap, or maim persons overseas.” After two months in court, Wahid asked, “Where on any of these calls is there a plot?”
On the fifth day of deliberations, the jury in Hafiz Khan’s case returned with a verdict of guilty on all counts. He was sentenced to twenty-five years without parole. He is scheduled for release on February 21, 2033, when he will be ninety-eight.
Not long ago, I called a member of the jury, Carlos Dubon-Gutierrez, and asked if it had been an easy decision. He said, “It wasn’t just clear-cut. We went back and forth.” For him, the decisive factor was the defense. “Very weak. They couldn’t prove that he didn’t do it,” he said. The judge instructed the jury, “The defendant does not have to prove his innocence,” but Dubon-Gutierrez recalled that Hafiz’s lawyer “kept saying he was going to bring people in. Never happened.” I reminded him that the video transmission had failed. “Whatever it was that happened, it never came through.” Regarding the jury’s decision to convict, Dubon-Gutierrez said, “I think if the defense had, maybe, played their part, it would have been a lot harder.”
Hafiz is in a federal medical center in Butner, North Carolina, where he has been treated for several medical conditions, including asthma and skin infections. He communicates mostly by finding other prisoners who speak Urdu or Arabic. When I spoke to him recently, with the help of a Pashto translator, I asked if he believed that he had broken the law. He rejected the question: “If sending money is a crime, then people all around the world are committing a crime! They proved that I sent money, not that I sent money to bad guys. I believe the American legal system will do justice in my case. I believe that the United States was built on the basis of equality and justice and it will always be against unfairness.”
I asked him why he had said awful things about Americans—about the Army helicopter crash and “fifty thousand” more deaths.
“When Americans died, I talked about it, but I never spoke against them,” he said. That was spin, and he didn’t try to defend it much. He wanted me to understand that his real focus was the Pakistani government. “I was angry at the Pakistani Army, because it doesn’t get proper information before it starts shooting people on their missions,” he said. “You will cry if you do your own research and find out what they have done to innocent civilians.”
I asked if he could have done anything to avoid where he is today.
“I have done nothing wrong,” he said. “The only thing that I might have done wrong was saying things in anger.”
Last fall, Hafiz’s lawyers appealed the verdict to the Eleventh Circuit Court of Appeals, arguing that the failure of the video link and disputes about translation prevented them from mounting a full defense. In July, a three-judge panel upheld the conviction. The case remains on appeal.
With so much attention on Hafiz and his sons, it was easy to forget that two other members of the family—Hafiz’s daughter Amina and his grandson Alam Zeb—remain under indictment, as does the shopkeeper. They are unlikely to see an American courtroom. Pakistani authorities interrogated and released them. A Pakistani intelligence bureau searched for militant ties to Zeb, but “did not have anything against him,” according to a U.S. prosecutor’s report of the inquiry. Zeb, who was seventeen when he was indicted, is now in his second year of medical school. He had been scheduled to testify when the video link went down. By phone from Peshawar, with the help of a translator, he told me, “I heard the whole complaint against us, and I thought, This is just bizarre. America is such a big country with such big cities, and while there are all these big terrorists in Pakistan, they’re leaving them alone and going after us?”
He suspects that American prosecutors didn’t understand the context of what they were hearing on the wiretaps, when the Khans cursed the Army. Zeb said, “If you go back to 2008 and ask any Swati, anyone from Swat, you’d have found that they were all upset with the Army. The way they were carrying on, lots of ordinary people were dying, were being destroyed, were being damaged. Their conflict was with the Taliban, but the Taliban weren’t the ones dying—the common people were dying. So we were distraught—‘Why are you killing us?’ ”
I asked if Zeb thought he would ever be able to come to the U.S. “Sir, if you look at all my phone calls, I had told my grandfather over and over that I want to come to America,” he said. “I want to study there. I want to become a good doctor. I had said that. But I didn’t understand that America could put together a case like this against us. What kind of people would do that?”
Late at night, after his wife and kids have gone to bed, Irfan Khan listens to wiretapped phone calls from the case. Since his release, he has stopped watching movies and sitcoms and started analyzing the evidence and sorting annotated transcripts into color-coded Excel files. The more that Irfan thought about his experience—the career interrupted, the hundreds of strip searches, the isolation of his wife—the more he felt wronged. Searching for his name online still brings up articles about terrorism. A bank had recently closed savings accounts that he had opened for himself and his children, and it declined to explain why.
Irfan has sued the government for malicious prosecution; his lawyer, Michael Hanna, claims that the authorities detained Irfan for ten months based on “intentional or reckless disregard for the truth.” Government lawyers have replied that Irfan was properly arrested on the basis of probable cause, but they rejected Hanna’s requests to hand over documents, citing national-security concerns. Two federal judges have faulted the government for unnecessary delays. A senior F.B.I. official told me recently that the bureau considers the Khan case a success: “Now, it wasn’t the success we wanted to get. We would have liked to have gotten all three.” He went on, “I would argue that the Khan case was a successful use of resources. We did what we had to do. We took it as far as the evidence would allow us to take it, both from a deterrent factor, as well as enforcing the law.”
I asked Irfan why he stayed in America. Why not go back to Pakistan? He laughed. After his stint in custody, people there would assume that he had struck a deal, he said. “Whether it’s your family or the police or the military or just the local people, they’ll assume that you’re working for either the C.I.A. or the F.B.I.” Besides, his son, who was born in Florida, visited Pakistan before kindergarten and declared that he is never going back. “He said, ‘There’s a lot of dust.’ ”
Irfan is driving a taxi again. He is working the day shift, 5 a.m. to 5 p.m., for Super Yellow Cab, driving a Crown Victoria that used to be a police car and still has a chrome spotlight on the left side of the windshield. If you don’t know his story, it’s difficult to distinguish Khan from his peers. To a passenger in the back seat, he is black hair, ear buds, and the collar of a golf shirt.
From behind the wheel, Irfan marks time by noting changes in the cityscape—what’s going up, what’s coming down. Now and then, he passes the old federal building on Brickell Avenue, where he became a citizen, sixteen years ago. “Somebody told me that they want to knock down that building. I was kind of sad,” he said. He remembers taking the oath for citizenship. “I held up my end of the bargain, but they didn’t hold up theirs.” He went on, “You advertise it to the whole world: Hey, we’re the best country, we’re the best nation, we’re the best justice system. If you think about it, the whole purpose of this country was to protect people like us.” ♦
