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.
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.
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.