Saturday, September 07, 2013
Four local Somali men who
were convicted in February of sending money to the terrorist group
al-Shabaab are demanding a new trial, contending that the sweeping
surveillance conducted by the National Security Agency violated their
rights and led to an unfair trial.The
motion filed Friday in U.S. District Court in San Diego is unique in
the growing legal backlash across the country to the massive electronic
surveillance system that swept up data from phone calls, emails and
Internet searches.
The San
Diego case is the only known criminal case where the NSA surveillance
played a key role. And it was cited in congressional testimony in June
by government officials as an example of how the secret surveillance
programs had foiled terrorist plots.
Those two factors have made the case one that is now being closely watched.
“This
is the only case where the government has said, ‘Yes, we used it,’”
said Hanni Fakhoury, a lawyer with the Electronic Frontier Foundation
in San Francisco, a group that advocates for privacy rights and civil
liberties and has filed several lawsuits seeking more information on the
surveillance programs.
“It’s going to be very interesting to see what the government’s response is.”
The
U.S. Attorney’s Office in San Diego, which prosecuted the case,
declined to comment Friday. They will file their own arguments against
the new trial motion in two weeks.
The
lawyer for Basally Moalin, the San Diego cabdriver who was the lead
defendant in the case, said the surveillance was the “worst-fears
nightmare” example of intrusive and unchecked government surveillance.
In
a court filing on Friday, lawyer Joshua Dratel said that the secret
surveillance violated the four men’s constitutional rights against
illegal searches.
He also
argued the men didn’t get a fair trial because the government did not
tell defense lawyers about the NSA involvement and the massive
wiretapping program. Prosecutors disclosed before trial that they
intended to use information obtained from warrants authorized under the
Foreign Intelligence Surveillance Act.
Defense
lawyers sought the FBI affidavits filed in support of the warrants with
the Foreign Intelligence Surveillance Court, a special federal court in
Washington, D.C. But the government resisted, outlining its reasons in
filings that remain secret. U.S. District Court Judge Jeffrey Miller
rejected the defense request in a ruling that is also sealed, and turned
down a challenge to keep the evidence out of the trial.
In
February a jury convicted the four men of conspiracy to provide
material support to a foreign terrorist organization following a
three-week trial in San Diego federal court. Prosecutors said the men
raised and then funneled about $8,500 in cash in 2007 and 2008 to the
al-Shabaab group, which was fighting government and peacekeeping forces
in Somalia at the time. The U.S. government designated the group a
terrorist organization in 2008.
The
four have yet to be sentenced, and face up to 20 years in prison each.
Dratel could not be reached for comment but his court filing lays out an
aggressive case against the surveillance program.
The core of the case against
the four men was 1,800 intercepted phone calls that prosecutors argued
detailed their fundraising efforts, and Moalin’s dealings with a Somali
man who prosecutors said was an al-Shabaab leader.
The
case attracted little notice outside San Diego until June, when FBI
Deputy Director Sean Joyce told a congressional committee that the NSA
surveillance played a role in the San Diego case. Moalin had been
investigated by the FBI in 2003 for suspected terrorist links but the
investigation was closed about a year later when none were found.
But
in 2007 Joyce said the NSA tipped off the FBI that a phone number in
San Diego had been in “indirect” contact with an “extremist” in Somalia.
Armed with that information, investigators connected the number back to
Moalin, launching the terrorism investigation.
Dratel
argued that even though Moalin was cleared in the earlier
investigation, it was illegal for the government to warehouse his phone
number in a massive database for years. He said it shows the dangers of a
mass surveillance program that can create “a perpetual database on
persons cleared of wrongdoing, unhinged from any standard designed to
hold intelligence-gathering accountable” to constitutional protections.
Dratel
also said that Joyce’s congressional testimony contradicted the
government’s key argument at the trial. Prosecutors told the jury that
the wiretaps revealed Moalin was in “direct” contact with an al-Shabaab
leader named Aden Ayrow. Defense lawyers had contended that prosecutors
were mistaken and Moalin was actually speaking to a different man.
But
Dratel noted that Joyce testified that Moalin was in “indirect” contact
with an extremist in Somalia, and that testimony undercuts the linchpin
of the government’s case.
The
issues are scheduled to be argued in front of Judge Miller on Sept. 30.
If the judge turns down the defense motions, the four men will be
sentenced at that same hearing.