The judges also ruled that government prosecutors must tell criminal defendants when it plans to use evidence gathered or derived from surveillance done overseas, a large, secret effort generally referred to by the executive order that authorizes such collection, 12333. It was not immediately clear how significant an impact that part of the ruling might have on the Justice Department, because the use of such material in criminal investigations has always been closely guarded within the government.
Even as they rejected some of the government’s broader arguments, the judges unanimously upheld the convictions at the center of the case — against Basaaly Moalin and three others guilty of conspiring to send money to al-Shabab, a Somali terrorist group.
That case, and the long-running battles over privacy and security, grew from the federal government’s push to detect and prevent terrorist attacks after 9/11. Under Section 215 of the Patriot Act, the NSA gathered millions of Americans’ phone records — not the content of calls, but the records of who called whom, and for how long — to build a database that could then be searched by counterterrorism investigators.
At the time, officials with the FBI and other intelligence agencies defended the Section 215 program as necessary to prevent attacks, and said it was instrumental to uncovering the case of the four Somali Americans who sent or conspired to send money to al-Shabab.
Then-FBI Deputy Director Sean Joyce told Congress that if not for the information from the phone-records program, the bureau “would not have been able to reopen” the investigation that led to the arrests.
“To the extent public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record,” the judges wrote.
An FBI spokeswoman did not immediately comment. A Justice Department spokesman declined to comment.
Patrick Toomey, an attorney with the American Civil Liberties Union, said the ruling “makes clear that intelligence officials misled Congress and the public about the value of this mass surveillance program,” and called the judge’s decision “a victory for privacy rights.”
That argument, they wrote, “depends on an after-the-fact determination of relevance: once the government had collected a massive amount of call records, it was able to find one that was relevant to a counterterrorism investigation.” The problem, the judges wrote, is that the Foreign Intelligence Surveillance Act “required the government to make a showing of relevance to a particular authorized investigation before collecting the records.”
The ruling marks the second time a federal appeals court has found the bulk phone records program illegal. In 2015, a federal appeals court in New York issued a scathing opinion finding the program had wrongly gathered a “staggering” volume of information about Americans to conduct “sweeping surveillance.”
That same year, Congress ended the program, replacing it with a system in which phone companies kept such records and provided information about specific numbers when presented with a court order. That replacement program, however, was deemed so difficult and unhelpful that it was effectively shelved in late 2018.
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