On Sept. 6, far away from the two high-profile challenges to the NSA’s dragnet surveillance programs filed by the ACLU and EPIC, attorney Joshua Dratel filed a motion demanding a new trial for his client, Basaaly Moalin, and three other defendants. The motion argued that the defendants’ constitutional and statutory rights were violated by the government’s surveillance, committed under the NSA’s mass telephone record collection. Furthermore, Dratel argued, the prosecution’s secrecy violated rules of discovery.
Dratel was reacting to FBI Deputy Director Sean Joyce’s descriptions of warrantless surveillance of and exculpatory evidence regarding Moalin—public statements made to Congress on July 31. That was five months after a trial in which the government and the court prohibited Dratel from obtaining exactly that evidence, and five months after his client and the three other defendants were convicted.
Dratel’s legal move went virtually unnoticed. But if it proves successful, it could break the NSA’s dragnet phone surveillance program. If it is unsuccessful, it will set a new low for the subversion of Americans’ constitutional and statutory rights by claims of national security in the courtroom.
Moalin, a cab driver, and three other Somali immigrants were convicted in February, largely thanks to evidence gathered through telephone surveillance. The charge: funneling about $8,500 to al-Shabaab, the Somali militant group, in 2007 and 2008. Moalin’s case is the Holy Grail for the NSA: He represents a (kind of) terrorist plot, (partially) on American soil, that was foiled thanks to “critical” evidence gathered through the NSA’s mass telephone data collection program. Successfully prosecuting Moalin is critical to the government. It’s the only instance the government has identified as an example where the NSA’s mass telephone metadata collection program was used. According to the FBI, it’s also the only case involving a “terrorist plot” with a “homeland nexus” where the telephone program played a “critical” role.
Moalin’s case began in 2007, when the NSA informed the FBI that it had linked a phone number in San Diego to a member of both al-Shabaab and al-Qaida East Africa. Moalin and the other three defendants were convicted by a jury for providing support to the former. That tip, Joyce told Congress in July, was possible because of the massive telephone collection program. “In order to find the needle that matched up against that number, we needed the haystack,” he said.
But this wasn’t the first time the FBI had investigated Moalin. Joyce also told Congress that “initially the FBI opened a case in 2003 based on a tip. We investigated that tip. We found no nexus to terrorism and closed the case.” The information that Joyce had just presented to the world in defense of its suddenly exposed surveillance programs was also information Dratel had been explicitly barred from seeing during the trial, even though he is cleared to view classified material (and has in the past).
In an interview for this piece, Dratel summarized his frustration: “Everything is classified and secret until the government uses it for its own advantage.” (I reached out to William P. Cole, the lead prosecutor for this case, but he declined to comment, instead directing me to the prosecution’s forthcoming opposition to the defense’s motion for a new trial.)
A violation of a defendant’s constitutional rights is enough to throw out a conviction. But often a defense based on a violation of constitutional rights depends on information learned through discovery, the phase before a trial commences that requires the disclosure of certain requested information. In addition to requested information, prosecutors must also provide any exculpatory evidence that they possess to the defense. In almost any other case, during discovery Dratel would have been able to identify how the government procured evidence against his client, pursue appropriate defenses based on possible constitutional violations, and then produce that evidence at trial. But because the evidence being used against Moalin stemmed from a secret government program, authorized by a secret opinion by the Foreign Intelligence Surveillance Act Court, Dratel’s options were limited.