New trial denied in SD Somali terror case

By Kristina Davis

SAN DIEGO — In one of the first public legal tests to the National Security Agency’s massive warrantless surveillance program, a federal San Diego judge on Thursday denied a new trial to four Somali men convicted of aiding terrorists and upheld the legality of the secret evidence that ensnared them.

U.S. District Judge Jeffrey Miller ruled against the defense’s assertions that the NSA’s collection of evidence violated the men’s Fourth Amendment rights against illegal search and seizure. He also decided that evidence involving the NSA’s program will remain under seal and not be released to defense attorneys — even those cleared for classified information — because it doesn’t meet the “need to know” requirement.

Defense attorney Joshua Dratel called the ruling “disappointing” and said it will be appealed to a higher court.

“We feel strongly about our position, obviously the judge didn’t agree,” Dratel said.

The U.S. Attorney’s Office declined to comment on the judge’s order.

The case is being closely watched as one of the few NSA criminal cases being challenged in open court, and Thursday’s ruling in favor of the NSA program will likely set the stage for similar legal battles that are brewing amid growing debate.

In another case in Colorado, the government last month gave public notice for the first time that it will be using evidence obtained from the NSA’s warrantless surveillance for the prosecution. Jamshid Muhtorov is charged with providing support to an Uzbek terror organization.

Besides the basic question over the constitutionality of the mass collection of data, the San Diego case broached other issues, such as: How much control are intelligence agencies exerting over prosecutions with the information they do — and don’t — provide? How can the other side put up a fair defense if they aren’t allowed access to the same information? And how much privacy should we expect when it comes to our phones?

This case was built on 1,800 intercepted phone calls that documented the efforts by the men to raise funds for al-Shabab, a terrorist organization in their war-torn home country of Somalia.

Basaaly Moalin, the lead defendant, was a San Diego cabdriver who led the fundraising drive and was the point of contact for al-Shabab. Many conversations were recorded between Moalin and a man in Somalia who prosecutors identified as an al-Shabab leader.

Mohamed Mohamed Mohamud used his influence as a imam in a City Heights mosque to solicit funds from others in the community. Issa Doreh worked at a money transfer business the men used, and Ahmed Nasir Taalil Mohamud was an Orange County cabdriver who helped raise money.

The four men were found guilty in February of conspiracy to provide material support to a terrorist organization for raising $10,900 for al-Shabab in 2007 and 2008.

The jury found that the phone conversations revealed the men knew they were dealing with a known terrorist organization and that the funds would be used to carry out violence overseas.

The defense was aware that the wiretap for the many recorded phone calls was approved by the Foreign Intelligence Surveillance Court in proceedings that remain classified.

Source: UT San Diego