It has been more than three years since the U.S. 9th U.S. Circuit Court of Appeals heard final arguments in a San Diego terrorism case, with no opinion issued and none in sight
After nearly an hour of listening to arguments from federal prosecutors and the lawyers for four Somali men who lived in San Diego and were convicted of terrorism-related charges in 2013, Judge Marsha S. Berzon of the U.S. 9th Circuit Court of Appeals formally closed the court hearing.
“Very interesting case,” she said.
That was late in the morning of Nov. 11, 2016 — more than three years ago.
It was also the last time anyone heard from the court on the case — the only one publicly acknowledged by the government to have been brought using a controversial mass surveillance program that allowed the National Security Agency to sweep up phone call records of citizens for years, secretly and without warrants.
Even for the 9th Circuit, the nation’s largest and busiest appeal court, the long wait for a ruling is extraordinary. Two of the four men who were tried and convicted of sending a total of $15,500 to the Shabab terrorist group have been sentenced, served their time and released.
The case centered on the NSA program of sweeping up metadata — information that says who someone called, when they called and how long they spoke. The massive program was revealed through Edward Snowden, the former NSA contract worker who revealed the secrets of the agency’s surveillance program in 2013.
That was just months after the four men — Basally Moalin, 42, Mohamed Mohamud, 47, Issa Doreh, 63, and Ahmed Nasir Mohamud, 44 — had been convicted and sentenced. Doreh was released in July, and Nasir Mohamud in February 2016. They were convicted of conspiracy to provide material support to a terrorist group and money laundering after a monthlong trial in federal court in San Diego in early 2013.
Lawyers involved in the case declined to speculate about what could be causing the extraordinary wait. It is likely the panel of judges is split, which would mean two opinions, including the dissent, have to be written. The high-profile nature of the case may also be a factor, because it is probable the losing side will ask the U.S. Supreme Court to review the ruling.
Whatever the reasons, the wait is taking a toll.
“Mr. Mahamoud would like to bring up the fact that he still has a case, waiting to be decided,” his lawyer David Zugman said this week.
At a congressional hearing on the Snowden revelations in June 2013, then-FBI Deputy Director Sean Joyce testified that Moalin had been investigated by the FBI in 2003 for suspected terrorist links, but the investigation was closed about a year later when none was found. 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.
The connection was made by running the number through the massive database of records the agency had been compiling and finding Moalin’s number, launching the case.
Investigators tapped his phone for a year, using a warrant obtained under the Foreign Intelligence Surveillance Act. Exactly what the government told the court in its application is unknown because FISA records are not public.
How the intelligence agencies obtain permission to surveil citizens has become an issue in the FBI investigation of President Trump. A recent report by the inspector general faulted the agency for how it obtained a warrant to surveil a Trump campaign official. It listed 17 omissions and errors in the applications agents made to the secret Foreign Intelligence Surveillance Court for permission to monitor the communications of a former campaign advisor, Carter Page.
Overall, the report summary said, the inspector general found “multiple instances” in the initial FISA applications that were “inaccurate, incomplete or unsupported by appropriate documentation based on information the FBI had in its possession at the time the application was filed.”
This week, the presiding judge of the Foreign Intelligence Surveillance Court issued an order requiring the government to explain the steps it will take in the future to prevent the FBI from misleading the court.
Defense lawyers in the case out of San Diego have argued the program violated the constitutional rights of their Somali clients and the convictions should be thrown out. The law the NSA relied on, known as Section 215 of the Patriot Act, was set to expire this week. But last month Congress passed an extension to the program through March 15.
The status of the program is unclear. Reports this year indicated that the government had shuttered the program but still wanted the legal authority to use the surveillance program in the future.
Moran writes for the San Diego Union-Tribune.