Omar Ameen is an Iraqi refugee accused of carrying out an ISIS hit in Iraq in 2014 before coming to the United States. His attorneys claim he's innocent, and was actually 600 miles away at the time of murder — a defense they say would be bolstered by evidence on suspended Facebook and Twitter accounts.
But the tech giants have refused to hand the information over.
A U.S. magistrate judge in Sacramento, California, will decide whether to send Ameen back to Iraq to face trial, the San Francisco Chronicle reports. If he is sent back, Ameen will be the first person in American history to be extradited to Iraq, where he'll likely be executed, according to the Chronicle.
Ameen is accused by Iraqi investigators of killing a police officer in Rawah, Iraq, on June 22, 2014. At that time, Ameen and his family were trying to secure immigration to the U.S. while living as refugees in Turkey, according to the Chronicle. As part the immigration process, Ameen was required to check into the Turkish refugee office each Thursday — as he did the week of the murder, according to official records, the Chronicle reports.
Ameen's attorneys, federal public defenders Ben Galloway and Rachelle Barbour, have argued that it would have been nearly impossible for Ameen to travel the over 600-mile journey from Turkey on Thursday — passing through hostile Syria — in time to fatally shoot the officer in Iraq that Sunday.
"We have begged for some type of proof that Omar is actually the terrorist they're making him out to be," Barbour told The New Yorker. "It would be incredibly reassuring to me and Ben. We could just go to Omar and say, 'Hey, man, they got you. Let's send you back to Iraq.' But every rock we overturn is actually supportive of his innocence."
Ameen's defense also sought to counter social media evidence provided in his extradition packet given to the U.S. government by Iraq. Despite being provided to the government, extradition cases give defense attorney's extremely limited means to contest such evidence, Barbour told CBS News.
The evidence includes a tweet announcing the officer's death that links to a Facebook post that appears to show a group of men celebrating. According to Barbour, linking to multiple social media platforms creates digital "layers," and is a common tactic for ISIS.
Barbour and Galloway were unable to access the posts because the accounts were suspended by Twitter and Facebook, and the companies refused to hand over the posts.
Facebook and Twitter would not provide the defense with any information on the "content" of the tweet, including the date of the tweet, the photo associated directly with it, other tweets or posts by the same accounts and any interaction with the posts. According to Barbour, this information would help them show who the real murderers are, and therefore would be exculpatory for Ameen.
The refusal forced the defense to "get creative" to find any information related to the post, Barbour said. Through open source work, they were able to identify that the men in the photo linked to the Tweet were ISIS members. According to Barbour, they also got in touch with the late officer's widow, who — with the belief that Ameen is innocent — helped them with their case.
Barbour said they were able to track down the Facebook account and identify it as ISIS, but could not see the post. They then subpoenaed for the post's content, but were turned down.
"The social media companies are hurting us in two different ways — first, by taking down the ISIS-related posts without giving anyone the ability to get them for legitimate purposes, and second, by refusing to give it to us when we subpoenaed them with a court order," she said.
The companies cited a decades-old-privacy law called the Stored Communications Act, or SCA, according to the Chronicle. The SCA aims to protect people's private data, with exemptions for law enforcement during emergencies and investigations. The act does not, however, issue exemptions for defense attorneys.
Ameen's defense eventually dropped its effort to compel Twitter and Facebook for the posts.
"They have the ability to fight us tooth and nail and not give us anything," Barbour said. "We had a hearing staring us in the face, and we didn't have the time to fight them all the way... we had to make a calculated decision."
With the stringency of the SCA behind them, social media companies have an advantage in such cases, she said.
"Do I think that the content would be really helpful? Yes. Do I think that we could beat Facebook and Twitter in court? Probably not."
Twitter and Facebook's response to Ameen's defense request is typical of Silicon Valley, the Chronicle found. The social media companies routinely deny defense attorneys access to evidence, even when that evidence could overturn wrongful convictions, the paper reported.
"Facebook and Twitter appear to be misusing their immense resources to manipulate the judicial system," San Francisco Superior Court Judge Charles Crompton wrote in a critique of the companies' policies last year. "... Facebook and Twitter have made it clear that they are unwilling to alter their behavior, regardless of the harm to others — or the rulings of this court."
A Facebook company spokesperson told CBS News that "federal law establishes strict limitations on when we may disclose user information, which is why we only do so in response to legal requests that comply with applicable law and our terms of service."
A Twitter spokesperson said that "Twitter has, in the past, taken a stand to comply with its legal obligations under the Stored Communications Act and will continue to comply with those obligations going forward."
Barbour and Galloway have been given until January 29 to present their final argument against Ameen's extradition. After that, U.S. Magistrate Judge Edmund F. Brennan will issue a ruling within months, and the final decision will be left up to U.S. Secretary of State Mike Pompeo.
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