At the end of October, defense attorneys representing four Somali men in Southern California will travel to the Horn of Africa to depose witnesses whose testimony could poke holes in terrorism charges leveled against their clients.
Two years ago, the U.S. Attorney for the Southern District of California obtained criminal indictments against three members of San Diego's Somali community— taxi driver Basaaly Saeed Moalin; Mohamed Mohamed Mohamud, the imam of the Al-Ansar mosque; and Issa Doreh, an employee of the money-transfer company Shidaal Express. A fourth person, Ahmed Nasir Taalil Mohamud, a taxi driver in Orange County, was later added as a defendant in the case.
The men are accused of collecting and sending $15,900—legally known as "providing material support"—to al-Shabaab via 12 wire transfers made between January and August 2008. As alleged in court records, Moalin coordinated the effort with representatives of al-Shabaab, Doreh was involved in processing the transactions and the two Mohamuds helped collect the money from other Somalis. Moalin is also charged with lending his house in Somalia to al-Shabaab as a base.
The evidence is derived primarily from 1,800 phone calls intercepted by the San Diego Joint Terrorism Task Force, a collaboration between the FBI and Department of Homeland Security. The prosecution has identified more than 120 recordings it says establish a connection between the men and terrorist activities, including direct discussions between Moalin and al-Shabaab leader Aden Hashi Farah Ayrow, who was killed in an airstrike in May 2008. The recordings are said to contain coded conversations—in the Somali language—about the funding of violent acts involving land mines, mortar shells and firearms.
The Somalis are represented by specialist lawyers recruited from across the country for their expertise in terrorism. According to courtroom transcripts, the lawyers have struggled on multiple fronts, including finding neutral Somali translators who aren't already on the payroll of counter-terrorism agencies. They have also logged successes, such as getting extraneous references to Al Qaeda removed from the indictments, which could have unfairly tainted the jury pool. As the Jan. 28, 2013, trial date nears, the defense has begun to mount challenges to the government's underlying case, starting with what it believes are poorly translated wiretap transcripts.
"I do not believe, based on information received from our certified translator, that [the U.S. Attorney's] rendition of the evidence, their phone call, is in fact accurate," Alice Fontier, attorney for Moalin, said at an Aug. 22 hearing. "Their transcripts do not accurately state what was said in Somali between Mr. Moalin and the person on the other end of the phone. And we are still in the process of getting many more of these calls translated, but there are fundamental, material differences."
The defense also argues that the person on the other end of the line—identified only by the nickname "Sheikalow"—is not who the prosecutors say he is.
During a fact-finding mission to Mogadishu, Somalia, this summer, Fontier and Doreh's lawyer Ahmed Ghappour obtained what they believe is credible evidence that "Sheikalow" is not the al-Shabaab leader Ayrow, as the prosecution claims. Fontier says the person is actually Hassan Guled, a police commissioner in the Gelguduud region of Somalia. Guled is expected to testify that he not only spoke to Moalin over the phone, but also that he received at least the first four money transfers identified in the indictment and used Moalin's home for a time.
"He had many police officers working for him," Fontier writes in a brief seeking permission to depose Guled and seven others who she says will support Moalin's innocence. "They required guns and weapons in order to effectively defend against al-Shabaab's attacks on the region . Mr. Guled will testify that he requested money from Mr. Moalin, and in fact received it for the purpose of defending the Gelguduud against al-Shabaab."
Other witnesses, Fontier writes, will testify that money Moalin sent abroad funded orphanages and schools. Sheik Abdul Rahman, who's Moalin's brother-in-law and the current governor of the capital of Gelguduud, will testify that the Sufi paramilitary organization Ahlu Suna wal Jamaa used Moalin's home for seven months as a base in its campaign against al-Shabaab.
Due to the difficulty in obtaining travel documents for Somali nationals, the defense asked the court to allow for "Rule 15" depositions, the taking of testimony remotely in lieu of bringing witnesses into court.
"The government is prosecuting a global case," Fontier told the judge. "They're prosecuting these men for what happened in Somalia. As their defense attorneys, we must have the ability not only to investigate and learn things for our own benefit, but then to present that evidence to the court."
Prosecutors opposed the defense's initial request to conduct the depositions in Somalia. Assistant U.S. Attorney William Cole called Mogadishu a "nonstarter," and the court agreed.
"I have grave concerns, security concerns, which, in my view, are of the utmost importance," Judge Jeffrey Miller said before denying the motion. "[Y]ou have a war-torn, civil-war-torn, ravaged country, without any functioning government, without any functioning judicial system, where terrorist activity is taking place and where the United States government has absolutely no presence. And it's asking an awful lot to have this court send into the teeth of that kind of a circumstance prosecutors who will be largely known at the time of their arrival in this location as people who are prosecuting members who are allegedly supporting al-Shabaab."
After further negotiation, a U.S. magistrate judge approved a second proposal to take the depositions in Djibouti, a significantly more stable, neighboring nation. As of Monday, Sept. 17, the parties were exploring the possibility of deposing witnesses via teleconference. Citing security concerns, the U.S. Attorney's office declined to comment on the arrangements.
Although the depositions represent a glimmer of hope for the Somali men, a related case in Missouri serves as an omen.
Mohamud Abdi Yusuf, a Somali refugee who drove cabs in St. Louis, pleaded guilty in November 2011 to charges that he provided material support to al-Shabaab. The indictment references several San Diego-based co-conspirators—listed only by their initials—including "I.D.," an employee of Shidaal Express, the same money-transfer shop where Issa Doreh worked. Yusuf was sentenced to 140 months in prison in June.
In December 2011, a 25-yearold Somali woman in San Diego pleaded guilty to providing funds to al-Shabaab through her connections in Minnesota. Nima Yusuf's sentencing hearing is scheduled for Dec. 11; prosecutors have asked for 120 months, or 10 years, though she could face a maximum 15 years in prison.
While the initial arrests sent shockwaves of distrust through the Somali community, largely because of the charges against the imam, the U.S. Attorney has made progress in terms of outreach, according to Abni Mohamoud, executive director of Horn of Africa, a nonprofit organization supporting San Diego's East African community. Mohamoud wrote a letter on behalf of Nima Yusuf seeking clemency.
"The community is certainly hoping that these people get a fair trial, an open-minded trial, and if that's the case, I think the community is going to be satisfied," Mohamoud tells CityBeat. "I think as time goes on, they're a bit more educated about the legal process and the fact when someone's indicted, it just doesn't happen because someone in the U.S. Attorney's office has got a grudge against them."