Terror-funding conviction in San Diego under fire over NSA …

In the weeksafter newspapers beganpublishing reportsonU.S. government surveillance programs uncovered by Edward Snowden, law enforcement officialswere under fire.

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

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

Based on that lead, a top FBI official testified, agents spent months eavesdropping on the mans 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 lawthe 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 Thursdayrevived questions about the defunct programslegalitywhen they argued to a federal appeals court that their convictions should be overturned because the governments use of the phone recordswasimproper.

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

In filings and at thehearing 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 governments caseagainst the men was its initial reliance on information gathered from the NSAs 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 allowedat 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 rulingsof thejudge in thecase, who denied the mens request for a new trial when the NSA program became public andconcludedthe government had investigated the case appropriately.

While the NSAs 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-1990sand 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 Diegos sizable Somali immigrant community,and the others were accused of sending several thousands of dollars to Shababto 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 allegedwas a Shabab commander. In one call, the alleged commandertoldMoalin that it was time to finance the jihad.

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

In court filings, Abdo and other defense attorneys argued that the NSAs 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 Moalins phone number violated theconstitutions protections against searches and seizures.

JudgeMarsha 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.

joel.rubin@latimes.com

For more news on federal courts in Southern California, follow me on Twitter: @joelrubin

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