Hiiraan Online

The motion filed Friday in U.S. District Court in San Diego is unique in the growing legal backlash across the country to the massive electronic surveillance system that swept up data from phone calls, emails and Internet searches.

The San Diego case is the only known criminal case where the NSA surveillance played a key role. And it was cited in congressional testimony in June by government officials as an example of how the secret surveillance programs had foiled terrorist plots.

Those two factors have made the case one that is now being closely watched.

“This is the only case where the government has said, ‘Yes, we used it,’” said Hanni Fakhoury, a lawyer with the Electronic Frontier Foundation in San Francisco, a group that advocates for privacy rights and civil liberties and has filed several lawsuits seeking more information on the surveillance programs.

“It’s going to be very interesting to see what the government’s response is.”

The U.S. Attorney’s Office in San Diego, which prosecuted the case, declined to comment Friday. They will file their own arguments against the new trial motion in two weeks.

The lawyer for Basally Moalin, the San Diego cabdriver who was the lead defendant in the case, said the surveillance was the “worst-fears nightmare” example of intrusive and unchecked government surveillance.

In a court filing on Friday, lawyer Joshua Dratel said that the secret surveillance violated the four men’s constitutional rights against illegal searches.

He also argued the men didn’t get a fair trial because the government did not tell defense lawyers about the NSA involvement and the massive wiretapping program. Prosecutors disclosed before trial that they intended to use information obtained from warrants authorized under the Foreign Intelligence Surveillance Act.

Defense lawyers sought the FBI affidavits filed in support of the warrants with the Foreign Intelligence Surveillance Court, a special federal court in Washington, D.C. But the government resisted, outlining its reasons in filings that remain secret. U.S. District Court Judge Jeffrey Miller rejected the defense request in a ruling that is also sealed, and turned down a challenge to keep the evidence out of the trial.

In February a jury convicted the four men of conspiracy to provide material support to a foreign terrorist organization following a three-week trial in San Diego federal court. Prosecutors said the men raised and then funneled about $8,500 in cash in 2007 and 2008 to the al-Shabaab group, which was fighting government and peacekeeping forces in Somalia at the time. The U.S. government designated the group a terrorist organization in 2008.

The four have yet to be sentenced, and face up to 20 years in prison each. Dratel could not be reached for comment but his court filing lays out an aggressive case against the surveillance program.

The core of the case against the four men was 1,800 intercepted phone calls that prosecutors argued detailed their fundraising efforts, and Moalin’s dealings with a Somali man who prosecutors said was an al-Shabaab leader.

The case attracted little notice outside San Diego until June, when FBI Deputy Director Sean Joyce told a congressional committee that the NSA surveillance played a role in the San Diego case. Moalin had been investigated by the FBI in 2003 for suspected terrorist links but the investigation was closed about a year later when none were found.

But in 2007 Joyce said the NSA tipped off the FBI that a phone number in San Diego had been in “indirect” contact with an “extremist” in Somalia. Armed with that information, investigators connected the number back to Moalin, launching the terrorism investigation.

Dratel argued that even though Moalin was cleared in the earlier investigation, it was illegal for the government to warehouse his phone number in a massive database for years. He said it shows the dangers of a mass surveillance program that can create “a perpetual database on persons cleared of wrongdoing, unhinged from any standard designed to hold intelligence-gathering accountable” to constitutional protections.

Dratel also said that Joyce’s congressional testimony contradicted the government’s key argument at the trial. Prosecutors told the jury that the wiretaps revealed Moalin was in “direct” contact with an al-Shabaab leader named Aden Ayrow. Defense lawyers had contended that prosecutors were mistaken and Moalin was actually speaking to a different man.

But Dratel noted that Joyce testified that Moalin was in “indirect” contact with an extremist in Somalia, and that testimony undercuts the linchpin of the government’s case.

The issues are scheduled to be argued in front of Judge Miller on Sept. 30. If the judge turns down the defense motions, the four men will be sentenced at that same hearing.