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By Mark Hosenball
WASHINGTON (Reuters) - U.S. intelligence officials may have used National Security Agency data collected by eavesdropping on U.S. citizens or residents to target a Somali militant leader in a lethal missile strike, defense lawyers in a California terrorism-funding case said.
Questions about whether the data may have been collected illegally could fuel fresh controversy over NSA spying on U.S. citizens and residents and the way data it collects is used. Defense lawyers assert there may be legal grounds for a new trial for four men convicted in the case.
In February, the four men, of Somali extraction, but resident in San Diego, were convicted of conspiracy to finance and support the Somali militant group al Shabaab, which recently carried out a deadly attack on the Westgate shopping mall in Nairobi.
In a court document filed on Thursday, lawyers for the four said an FBI email they obtained under disclosure rules constitutes evidence which, though cryptic, suggests that data collected by NSA evesdropping on one of defendants - a U.S. citizen - was used for the missile targeting.
The email, from an unnamed FBI official to an unnamed recipient at another agency, talks about how Aden Hashi Ayrow, the senior al Shabaab leader based in Somalia killed in the May 2008 missile strike, tried to call one of the defendants - U.S. citizen Basaaly Moalin - in January 2008 but failed to reach him.
"We just heard from another agency that Ayrow tried to make a call to Basaaly today, but the call didn't go through. If you see anything today, can you give us a shout ? We're extremely interested in getting real time info (location/new #s) on Ayrow," the email says.
One of the defense lawyers, who spoke on condition of anonymity, said it was unclear if the information was legally obtained with a warrant. The new court filing calls for a new trial and for the U.S. government to turn over other evidence which may have been withheld at the original trial.
Historically, it has been rare for the U.S. government to release, either through evidence-sharing rules or under the U.S. Freedom of Information Act, internal government documents relating to counterterrorism armed drone operations.
The email in question was uncovered during the lengthy government investigation and court proceedings about the four defendants and turned over to defense lawyers.
Revelations this year by former NSA contractor Edward Snowden have provoked a major political debate in the United States on the extent of snooping on U.S. citizens and residents and its legality.
In their court filing, the defense lawyers argued that the use of NSA eavesdropping authority employed in their case "would be beyond the scope of anything authorized by Congress or approved by the (Foreign Intelligence Surveillance Court) - unless of course that is the subject of another set of secret procedures and protocols yet to be exposed and subsequently acknowledged."
"Given that the U.S. government had previously attempted to target Mr Ayrow via missile attack (unsuccessfully), and ultimately did so successfully May 1, 2008... the implications of 'real time' information on Mr. Ayrow's whereabouts are obvious, if not altogether ominous," it said.
In congressional hearings following the Snowden revelations, law enforcement and intelligence officials publicly cited the San Diego prosecution as one of a handful of unclassified examples of how NSA surveillance had been a key tool in U.S. counterterrorism efforts, but gave only limited details.
The NSA had no immediate comment and the CIA, which has conducted lethal drone operations against militants in Somalia and other countries, declined to comment.
(Editing By Alistair Bell and David Brunnstrom)