The Case That Could Destroy Mass NSA Telephone Surveillance

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Sept. 30 2013 5:25 PM

The Dragnet’s Day in Court

The case that could destroy—or legitimize—mass NSA telephone surveillance.

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Dratel, reading through the lines, had already attempted to suppress the telephone evidence, arguing that its collection—however it occurred—violated Moalin’s rights under the Constitution and FISA. He had also sought information about the 2003 investigation into Moalin—the defense knew it had occurred, but the findings weren’t disclosed. Still, there was a possibility, especially because that investigation didn’t lead to charges, that the 2003 investigation resulted in the collection of exculpatory evidence. The defense lost both of these motions.

The value of keeping government secrets in the context of national security is a long-recognized legal doctrine. But how could the mere conclusion that Moalin had “no nexus to terrorism” be a threat to national security? And why couldn’t Dratel, who had already been cleared to view classified information, see it? All the defense knows is that many months ago, the government refused to hand over information about the 2003 investigation, submitted an ex parte filing, about which the defense still knows nothing, and then submitted another ex parte filing opposing Dratel’s attempts to suppress the telephone evidence. (Ex parte actions are those that happen without the involvement of other parties to the case. Outside of the national security context, they’re rare, because they contradict the adversarial system.) The prosecution won across the board, and Moalin’s case went to trial with his defense team kneecapped. No one, save the prosecution and the judge, knows exactly why. 

Imagine briefly the importance of such information to the defense: A jury watches the government’s witness(es) testify about an investigation. At some point the government explains its conclusion that Moalin knew he was talking to a leader of al-Shabaab, and then worked to fund that organization’s efforts. During cross-examination, the defense is unable to introduce the same witness’s earlier conflicting conclusions.

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Moalin’s conviction reveals how difficult surveillance like this is to challenge in the courtroom, simply because a defendant cannot challenge what he or she does not know about. Dratel suspects there is even more to the story. For instance, Joyce’s testimony contradicted the government’s theory of the case at trial, which was that Moalin directly communicated with a member of al-Shabaab. Instead, Joyce told Congress that Moalin “tipped [the FBI] off that this individual had indirect contacts with a known terrorist overseas.” Moalin’s direct communication—an argument for which the prosecution could not provide any witnesses—was critical to the convictions. (In fact, the DOJ’s website describes the conviction as a “major achievement” and says the indictment alleges that “Moalin was in direct telephone contact with Aden Hashi Ayrow, a prominent military leader of al-Shabaab.”)

Further, a report created to aid the judge in determining the appropriate sentence for the four defendants made reference to yet another investigation, out of Anaheim, Calif. Such reports, Dratel says, are prepared with information from the prosecution. The defense was never informed of any such investigation until it read that report—months after the trial.

Dratel’s motion offers the judiciary the first and only opportunity for a non-FISA court to rule on the mass telephone collection program under Section 215 of the Patriot Act without struggling through questions of standing, which have sunk many other challenges to national security practices. Shy of that, a court could still force the prosecution to disclose more information about how it procured its evidence against Moalin—information for which the whole world thirsts. But even if it remains classified, Moalin deserves a fair trial—and it’s necessary if America is to take seriously claims that the collection of all U.S. telephone records effectively serves a legitimate end.

Alternatively, the courts could simply dismiss the defense’s motion, ensuring that this regime of opacity will persist. But such a victory for the prosecution would be a tragic loss for the American adversarial system. In a courtroom, opacity is invincibility.

The government’s opposition is due today, Sept. 30; the defense’s reply on Oct. 7; and a hearing is scheduled for November.

This article arises from Future Tense, a collaboration among Arizona State University, the New America Foundation, and Slate. Future Tense explores the ways emerging technologies affect society, policy, and culture. To read more, visit the Future Tense blog and the Future Tense home page. You can also follow us on Twitter.

Sean Vitka holds a J.D. from Boston College Law School. He was a legal fellow at the Open Technology Institute and a Google Policy Fellow at Georgetown Law.

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