United States v. Moalin
By Anton Ziajka – Edited by Elise Young
Basaaly Moalin, a Somali immigrant who earlier this year was convicted of conspiring to provide material support to the terrorist group al-Shabaab, filed a motion for a new trial last month. Moalin based his motion upon facts that surfaced during congressional hearings held in response to Edward Snowden’s release of information about the U.S. government’s electronic surveillance programs. Joint Motion for a New Trial at 1, Moalin (“Motion”). The government filed its response and opposition on September 30.
U-T San Diego reports on Moalin’s conviction and motion for a new trial. Slate and Ars Technica provide analysis of the case and its potential implications. The Washington Post reports on the FBI and NSA’s disclosures about the NSA’s surveillance of Moalin. JOLT Digest has previously reported on the surveillance leaks and related litigation.
In 2010, Moalin and three co-defendants were indicted on multiple counts of conspiracy to provide material support to al-Shabaab, a Somali-based terrorist organization. At trial, prosecutors alleged that Moalin spoke by telephone to Aden Ayrow, a prominent al-Shabaab leader, and that Moalin thereupon transferred about $8,500 to al-Shabaab. Motion at 4–5. In February 2013, a federal jury convicted the defendants on all counts. Id.
Several months later, congressional hearings were convened to address information released publicly by Edward Snowden. Id. at 1. At the hearings, FBI and NSA officials disclosed that the FBI’s investigation of Moalin relied upon telephony metadata records gathered by the NSA pursuant to Section 215 of the USA PATRIOT Act, 50 U.S.C. § 1861 (2006) (“Section 215”), and, that Moalin’s communication with Ayrow may have been indirect, rather than direct, as the government had alleged at trial. Motion at 7-10.
Based on these disclosures, Moalin has moved for a new trial on behalf of himself and his co-defendants. Moalin argues that to the extent that he was monitored pursuant to Section 215, Section 702 of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1881a (2006 & Supp. II), or both, such surveillance violated the Fourth and First Amendments. Motion at 11–23. In support of these constitutional claims, Moalin points to, inter alia, the surveillance programs’ broad scope, lengthy data retention period, and lack of particularity requirements. Id. Further, Moalin argues that the government should provide to cleared defense counsel certain FISA material, Rule 16 discovery, and exculpatory evidence. Id. at 23–34, 37–38. Maolin contends that the government’s withholding of such information pursuant to the Classified Information Procedures Act, 18 U.S.C. App. III. (2006), and other justifications deprives Moalin of Due Process and his right to counsel. Id.
In response, the government asserts that its Section 215 collection of Moalin’s telephony metadata did not violate the Fourth Amendment. United States’ Response and Opposition at 11, Moalin (“Response”). According to the government, Moalin possessed no reasonable expectation of privacy in the telephone numbers he dialed, because he “‘voluntarily conveyed numerical information to the telephone company’ . . . and therefore . . . ‘assumed the risk that the company would reveal to police the numbers he dialed.’” Id. at 11–12 (quoting Smith v. Maryland, 442 U.S. 735, 744 (1979) (opinion hosted by Justia)). Because Moalin lacked a reasonable expectation of privacy, the government argues that he also lacks standing to challenge the NSA’s collection of the metadata, “regardless of the collection’s expanse.” Id. at 15. The government further contends that cleared defense counsel are not entitled to view classified information or the court’s determination as to its legality, because such information implicates national security and therefore is provided only on a “need to know” basis. Id. at 22.
Moalin remains the only known case in which the government claims it substantially used NSA surveillance, U-T San Diego reports. Slate observes that this status affords Moalin a unique position to contest the government’s so-called dragnet data collection. Other litigation challenging the NSA’s electronic surveillance, such as ACLU v. Clapper and Clapper v. Amnesty Int’l USA, have faced challenges on the ground that plaintiffs lacked standing to bring suit. In Moalin, the U.S. argues that because Moalin’s data was collected from third parties, Moalin lacks standing to challenge its collection, even though the data was in fact used to convict him.