Pioneer Press | Defense lawyer says Somali client investigated under illegitimate federal law

Published on May 26, 2011 by the Pioneer Press

By David Hanners | dhanners@pioneerpress.com

Calling it “the most discouraging memorandum” he’d ever penned as a lawyer, a defense attorney for a woman accused of aiding terrorists asked a federal judge Thursday to stop the government from using the electronic surveillance it gathered against his client.

Defense attorney Daniel Scott contends that much of the evidence against Amina Farah Ali was gathered through the Foreign Intelligence Surveillance Act, or FISA, and that government agents had no reason to use a law aimed at gathering foreign intelligence to eavesdrop on the Minnesota woman.

“The government sits secure in its knowledge that it can now wiretap, video tap, search and invade the privacy of anyone in the United States for months if not years on end for basically any purpose, so long as at least a ‘significant’ purpose is to search for foreign intelligence,” Scott wrote. “The reason for that security is that the application, authorization, and method of privacy invasion will remain forever secret from prying eyes.”

Under FISA, federal agents can ask a special Foreign Intelligence Surveillance Court for warrants to eavesdrop and collect evidence. Unlike a normal criminal case, the proceedings and affidavits are kept secret – a “Star Chamber system,” Scott wrote.

“The evidence is brought in secret, its significance is determined in secret and the verdict is arrived at in secret,” he wrote. “The Star Chamber system was abandoned because the secrecy led to abuses. It may well have been the catalyst for the Bill of Rights. This particular Star Chamber has not been abandoned.”

Ali, 34, is one of two Rochester women charged in connection with the exodus of 20 or more men from the Twin Cities to Somalia, allegedly to fight for al-Shabaab. She and co-defendant Hawo Mohamed Hassan, 64, were indicted last July for conspiracy and three counts of making false statements to the FBI.

Ali faces 12 additional counts of providing material support to al-Shabaab. The government says that between September 2008 and July 2009, she sent $8,608 to people connected with the organization, which was fighting to seize power from a U.N.-backed transitional government in war-torn Somalia.

In all, federal authorities have charged 17 men with Twin Cities ties in connection with the exodus.

All allegedly played some role in recruiting young men to return to Africa to fight for al-Shabaab, or lied to federal agents when questioned about it.

In his motion, Scott told Chief U.S. District Judge Michael Davis of Minneapolis that there weren’t enough safeguards to make sure the government was using FISA correctly, noting that agents tapped Ali’s phone for 10 months, intercepted 30,000 calls and searched her garbage two times a week.

“For what purpose? To establish that she and other Somali women went door to door collecting clothing and raising some tens of thousands of dollars for relief for victims in the Somali civil war, a portion ($8,608) of which went to provide relief for one of the factions that the government had recently declared to be a terrorist group,” Scott wrote.

Scott also raised the specter of whether the Somalis were being selectively prosecuted; it is the second time this month that a defense attorney has raised the issue.

“One questions whether there would be criticism of an equivalent expenditure of scarce investigative resources to go after an Irish bar that was raising an equivalent amount for the IRA,” Scott wrote.

Earlier this month, the attorney representing another Somali immigrant charged with aiding al-Shabaab argued that his client was being selectively prosecuted because the government never goes after Israeli-Americans who enlist to fight for the Israeli Defense Forces.

In a reply to that, federal prosecutors said the comparison was flawed because Americans who enlist in the IDF are fighting for a government, while the men who traveled to Somalia were fighting against a government.

In asking Davis to review the propriety of the FISA warrant, Scott said that because of the secrecy surrounding the process, a judge “must adopt the role of critic, normally reserved to the advocates.”

“All counsel can do is place trust in the court that the court will hold the government’s feet to the fire, only approving the fruits of the wiretap interception if it is convinced that the laws and Constitution of the United States have been upheld,” he wrote.

No trial date has been set.

David Hanners can be reached at 612-338-6516.