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NSA Phone Records Collection Can't Be Challenged By The Callers, Government Argues

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LAURA DUFFY
U.S. Attorney Laura Duffy contends that only the telephone companies have a Fourth Amendment interest in the phone records collected by the NSA. (AP Photo/Ross D. Franklin, File) | AP

The government is arguing in the terrorism case that serves as the National Security Agency's primary public justification for its bulk collection of telephone records that criminal defendants have no constitutional right to challenge the agency's sweeping surveillance program.

In a filing made Sept. 30, U.S. Attorney Laura Duffy of the Southern District of California contends that only the telephone companies have a Fourth Amendment interest in their call records -- and therefore that Basaaly Moalin cannot challenge his conviction for providing material support to the Somali terrorist group al-Shabaab.

Moalin is a Somali immigrant and San Diego cab driver convicted in February with three other defendants of sending $8,500 to al-Shabaab. His case constitutes the only time the government has admitted using bulk phone records surveillance as the crucial step in a domestic terrorism investigation, and thus it has taken on an outsized significance in the debate over the NSA's program.

"[N]either Moalin nor his co-defendants have standing to challenge the United States' collection of the telephony metadata from the service provider, regardless of the collection's expanse," the government's filing asserts.

Moalin may have made the calls, the government argues, but only the telephone companies have a Fourth Amendment right to privacy in the records they store. Those same companies are notably disinclined to assert the privacy rights of their users: Last month it was revealed that none has ever challenged the NSA's bulk records requests.

The government also contends there is "no suppression remedy" for a violation under the statute underpinning the sweeping records collection, meaning Moalin cannot have the evidence against him thrown out even if the NSA broke the law.

The Foreign Intelligence Surveillance Court, a secretive special court that oversees government surveillance programs, released a ruling last month declaring the NSA's program to be constitutional. Opponents will likely have to look elsewhere, including to cases in ordinary federal courts like Moalin's, to try to end the phone records collection.

In testimony before the Senate Judiciary Committee in July, NSA Deputy Director John Inglis identified only Moalin's case as a "but-for" example -- that is, a case in which a connection to terrorism would not have been identified but for bulk phone records collection.

"The notion that this case could be used to justify a mass collection of data is mind-boggling, considering it's $8,500 that went to Somalia," Joshua Dratel, Moalin's lawyer, told The Washington Post.

Since his conviction, Moalin has continued to deny the government's accusations against him, and the U.S. attorney's office made its recent filing in response to his request for a new trial.

Separately, the American Civil Liberties Union has filed a civil suit mounting a wholesale challenge to the constitutionality of the phone records collection.

"We believe these defendants are entitled to test the legality and the constitutionality of the government's surveillance in court," Patrick Toomey, an ACLU lawyer in that case, told HuffPost. "The government should not be able to use the fruit of that surveillance without the defendants having a chance to ensure that it was constitutional in the first place."

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