Appeals court rules NSA spying program illegal but upholds terror convictions

A federal appeals court on Wednesday handed down a long-anticipated opinion in the case of four Somali men convicted of aiding terrorists, ruling that the government illegally collected the telephone metadata of millions of Americans as part of a sweeping surveillance program.

Even so, the 9th U.S. Circuit Court of Appeals upheld the convictions of the four men, ruling that the warrantless intelligence-gathering program did not taint the evidence presented during the San Diego prosecution.

The spying program was discontinued in 2015 after being roiled in debate.

The opinion, by a three-judge panel, comes seven years after the men were found guilty by a jury, and four years after the case was argued in front of the 9th Circuit.

The case garnered widespread attention following revelations from former National Security Agency whistle-blower Edward Snowden that the government had been collecting domestic and foreign metadata on telephone calls for nearly a decade. His public disclosure in 2013 came four months after the trial, and the Somali case became a real-life example, as described in congressional hearings, of how that surveillance led to criminal prosecutions.

The metadata collected by the NSA in general included information on the phone number called, the number the call is made from, and the date and length of time of the call.

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The four men at the center of the case argued that the NSA’s program violated their rights and should have been fully disclosed at trial.

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, who worked at a money-transfer business; and Ahmed Nasir Taalil Mohamud, an Anaheim taxi driver.

They were convicted of funneling $10,900 to Shabab, a violent terrorist group fighting for control of Somalia’s transitional government.

The evidence included 1,800 wiretap recordings of Moalin’s calls to Somalia and to his co-defendants in 2007 and 2008.

One of Moalin’s main contacts in Somalia appeared to be a Shabab leader using an alias who was later killed in a U.S. missile strike, according to prosecutors.

Among the recorded conversations was Moalin telling Nasir that money was needed for “the young men who are firing the bullets” and that, within the last month, “these men cut the throats of 60” Ethiopians and destroyed up to five vehicles, according to court records.

Early on in the case, prosecutors indicated that the evidence had come from electronic surveillance under the Foreign Intelligence Surveillance Act. But the trial judge did not allow defense attorneys who are security-cleared to view documents that supported the FISA orders, and there was nothing on the public record about the NSA’s program.

Moalin was sentenced to 18 years in prison, Mohamud to 13 years, Doreh to 10 years and Nasir to six years.

In its order Wednesday, the 9th Circuit concluded that the NSA spying program violated the Foreign Intelligence Surveillance Act, and possibly the 4th Amendment right regarding search and seizure. The panel said the long-lasting, sweeping nature of the program vastly exceeded prior examples of government surveillance examined by the courts.

“This long-term surveillance, made possible by new technology, upends conventional expectations of privacy ... The amount of metadata created and collected has increased exponentially, along with the government’s ability to analyze it,” the panel concluded.

In this case, the NSA tipped off the FBI that a San Diego number was in “indirect” contact with an “extremist” in Somalia, according to congressional testimony from then-FBI Deputy Director Sean Joyce. The metadata was used to tie the number to Moalin, who had been previously investigated for suspected terrorist links, and a FISA order was then obtained to listen in on his calls for nearly a year.

Still, the illegal program did not taint the evidence used in this particular case, the 9th Circuit ruled, rejecting a legal theory that the prosecution relied on “fruit of the poisonous tree.”

The panel did not go into detail, but assured that its decision was based on a review of the classified materials in the case. In an apparent reference to Joyce’s testimony, the panel characterized public statements of government officials as “creating a contrary impression.”

“Having carefully reviewed the classified FISA applications and all related classified information, we are convinced that under established 4th Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial.”

Patrick Toomey, a senior staff attorney with the American Civil Liberties Union, called the ruling a “victory for our privacy rights” despite no change in Moalin’s outcome. He said the defense team is evaluating options for further appeal.

“The decision also recognizes that when the government seeks to prosecute a person, it must give notice of the secret surveillance it used to gather its evidence,” Toomey said in an email. “This protection is a vital one given the proliferation of novel spying tools the government uses today.”