Friday, November 11, 2016
By Greg Moran
Above: People wait outside of a federal courthouse before a hearing for three men suspected of aiding a Somali terrorist organization, November 9, 2010 in San Diego, Calif. (Christopher Maue/KPBS)
A federal appeals court on Thursday weighed whether the sweeping federal government surveillance program that captured millions of phone records for nearly a decade violated the rights of four Somali men convicted in San Diego of terrorism charges in 2013.
For more than a half hour, a three-judge panel of the 9th U.S. Circuit Court of Appeals quizzed lawyers for the men and government prosecutors about the now-discontinued and once secret program.
The four men in the case are Basaaly Saeed Moalin, a San Diego cabdriver; Mohamed Mohamed Mohamud, the imam of a City Heights mosque; Issa Doreh, former president of a nonprofit group aiding the Somali community; and Ahmed Nasir Taalil Mohamud of Anaheim. They were convicted of funneling less than $10,000 to the terrorist group al-Shabab.
The main evidence in the trial was excerpts of about 1,800 wiretap recordings of phone calls from Moalin to Somalia and to his co-defendants. Prosecutors said the recordings captured the scheme to raise the funds and wire transfer them overseas.
Metadata is information on the phone number called, the number the call is made from, and the date and length of time of the call.
In Moalin’s case, the government did not reveal it had relied on this spying program to initiate the case until after the trial. After the conviction, lawyers for the defendants said the men should be given a new trial because the program violated their constitutional rights.
U.S. District Judge Jeffrey Miller rejected that argument and sentenced Moalin to 18 years in prison, Mohamud to 13 years, Doreh to 10 years and Nasir to six years.
In the appeal, the defense lawyers said the spying program was a violation of the Fourth Amendment protection against searches without a warrant. They said the convictions should be reversed because the methods of obtaining the initial evidence — which came from the NSA program — were illegal.
Moalin’s case was cited in congressional testimony by an FBI official in June 2013 as the only example of a terrorism-related prosecution where the NSA surveillance program played a role.
FBI Deputy Director Sean Joyce testified that Moalin had been investigated by the FBI in 2003 for suspected terrorist links, but the investigation was closed about a year later when none was 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 case.
The connection was made by running the number through the massive database of records the agency had been compiling and finding Moalin.
Investigators then obtained a warrant to eavesdrop on nearly a year of phone calls Moalin made to people in Somalia and used a portion of those conversations as the backbone of the case against him.
In the appeal, government lawyers downplayed the importance of the NSA connection to the case. They said the NSA information served only as a tip, “one that provided law enforcement with the impetus to look into a phone number that turned out to have been used by Moalin.”
On Thursday, Assistant U.S. Attorney Jeffrey Smith said that the number was no more than a “simple data point” and not a critical cog in the case.
But for defense lawyers, the NSA information was the linchpin of the entire inquiry. They argued in court papers that the NSA role was the “essential, irreplaceable domino that started the series of dominoes, culminating in conviction of Moalin and his co-defendants.”
Even though the surveillance program ended in 2015, the case is being closely watched by civil liberties and privacy groups.
In the appeal, prosecutors urged the court to rely on a 1979 case that there was no expectation of privacy for call log information — the equivalent of metadata — kept by phone companies.
But privacy and civil liberties groups argued in a brief filed in the appeal that the 1979 ruling should not guide the court because digital communications such as emails, cellphones and texts make that view outdated, with new technologies generating far more revealing information.
“It is a digital trail of past and present political associations, personal sympathies, and private affairs,” lawyers for the groups wrote. “It can reveal confidential relationships between reporters and sources, whistleblowers and watchdogs, as well as attorneys and clients.”
They argued phone records and metadata should now be given privacy protection and the government should have to get a warrant to look at them.
A decision from the appeals court in the case is not expected for months.