Terror-funding conviction in San Diego under fire over NSA phone data collection

In the weeks after newspapers began publishing reports on U.S. government surveillance programs uncovered by Edward Snowden, law enforcement officials were under fire.

One congressional hearing in July 2013 centered on the revelation that for years the National Security Agency had been collecting data on phone calls made and received by millions of Americans. Lawmakers wanted to know if the program had produced any results.

Federal officials pointed to a little known case in San Diego. Using the agency’s database of phone records, NSA analysts in 2007 linked a cellphone belonging to a Somali immigrant taxi driver to a phone number associated with Shabab, a terrorist group in his homeland.

Based on that lead, a top FBI official testified, agents spent months eavesdropping on the man’s phone calls, building a case against him and three other Somali men living in the area. The men were convicted of conspiring to aid terrorists and were sent to prison. The cab driver, Basaaly Saeed Moalin, was sentenced to 18 years behind bars.

In the wake of the Snowden revelations, Congress did away with the law the NSA relied on to justify the bulk collection of phone records and replaced it with more restrictive rules. But Moalin and the other defendants on Thursday revived questions about the defunct program’s legality when they argued to a federal appeals court that their convictions should be overturned because the government’s use of the phone records was improper.

The case marks the first time a challenge to the phone data program has been used to appeal a conviction, according to the American Civil Liberties Union, which is representing the men.

In filings and at the hearing before a three-judge panel of the U.S. 9th Circuit Court of Appeals on Thursday, lawyers for the ACLU and the government offered contrasting views of the case.

Alex Abdo, an attorney for Moalin and the other men, urged the judges to find that the “lynchpin” of the government’s case against the men was its initial reliance on information gathered from the NSA’s database of phone records. As such, he argued, the wire tap evidence that FBI agents went on to collect against the men and which was the centerpiece of the case against them should not have been allowed at trial.

Assistant U.S. Atty. Michael Smith challenged the idea that the case against the men had been tainted by the use of the NSA data. The panel, he said, should find the men were convicted in a “fair trial” and uphold the rulings of the judge in the case, who denied the men’s request for a new trial when the NSA program became public and concluded the government had investigated the case appropriately.

While the NSA’s collection of phone records has been stopped, Abdo argued the case still had significance beyond the fate of the four men since the government has maintained its authority, in general, to conduct bulk collection of data on Americans. A definitive ruling from the judges in favor of the defendants, Abdo said, would serve as “deterrence” against the government starting up similar surveillance.

Moalin, who was granted asylum in the U.S. in the mid-1990s and later became a U.S. citizen, had maintained close ties to Somalia, which was upended by years of civil unrest and fighting between a transitional government and militias opposed to its rule, including Shabab.

Moalin, a well known figure in San Diego’s sizable Somali immigrant community, and the others were accused of sending several thousands of dollars to Shabab to help fund the terror network. In phone calls recorded by the FBI and played at the trial, Moalin was heard speaking to a man who prosecutors alleged was a Shabab commander. In one call, the alleged commander told Moalin that it was “time to finance the jihad.”

Defense attorneys countered that Moalin and the other men were not aiding Shabab, but were sending money to Moalin’s struggling home region to help build schools and orphanages. The man heard on the recordings, they said, was not a terrorist commander but a local police chief talking about the need to help fund local militias in their fighting against Ethiopian forces that had come to the side of the Somali government.

In court filings, Abdo and other defense attorneys argued that the NSA’s bulk collection of phone records was not authorized by the Patriot Act, the counterterrorism law that agency officials used to justify the program. Moreover, they said, the search of the database that produced Moalin’s phone number violated the constitution’s protections against searches and seizures.

Judge Marsha S. Berzon, who asked nearly all the questions at the hearing Thursday, gave no indication from her line of questioning how the panel might come down in the case.

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