Federal prosecutors agreed Thursday to share privately with a judge in a classified setting whether the government used a controversial foreign surveillance method in the case of a neo-Nazi leader accused of plotting to attack Maryland’s power grid.
U.S. Senior District Judge James K. Bredar ordered that meeting to take place within three weeks inside a sensitive compartmented information facility, or SCIF, in the case of Brandon Russell, 28, of Orlando, Florida, who faces one count of conspiracy to damage an energy facility.
When Bredar first asked whether the federal government would be willing to answer if law enforcement obtained or derived evidence that it plans to introduce at trial using Section 702 of the Foreign Intelligence Surveillance Act at a private meeting without the defense, Assistant U.S. Attorney Kathleen Gavin replied, “Your honor, the answer is, as I understand it, classified.”
Gavin then said she received an email from the U.S. Department of Justice’s National Security Division and would be able to proceed in that manner.
The case has attracted the interest of the American Civil Liberties Union, which joined Russell’s defense team because the matter presented a “rare and important opportunity” to challenge warrantless government surveillance.
Outside the courtroom, Ashley Gorski, a senior staff attorney at the ACLU’s National Security Project, said prosecutors need to provide notice if they intend to use evidence at trial that investigators obtained or derived from Section 702 surveillance.
But Gorski said the government historically has employed an “unjustifiably narrow interpretation” of what it means for evidence to be derived from that method. The FBI has conducted millions of warrantless queries of these databases, she said, but not provided any notices since 2018.
“It’s completely at odds about what we know about how frequently the FBI is conducting these warrantless searches for Americans’ communications,” Gorski said. “It’s beyond belief.”
Generally speaking, Gorski said, there should be litigation over the legality of the surveillance.
Russell is the founder of the Atomwaffen Division, which the FBI described as a racially or ethnically motivated extremist group with cells in several states. He’s accused of scheming with a woman, Sarah Beth Clendaniel, to destroy electrical substations surrounding Baltimore and cause a “cascading failure.”
Clenandiel, 36, of Catonsville, pleaded guilty to conspiracy to damage an energy facility and possession of a firearm by a prohibited person. She’s set to be sentenced Sept. 3.
Russell’s attorneys have pointed to a speech by FBI Director Christopher Wray, along with information that a senior official provided to Politico about how the government used the surveillance technique to stop a “potentially imminent terrorist attack” in 2023 against critical infrastructure in the United States. They contend their client’s case is the only one that matches that description.
Following sealed court proceedings, Bredar also ruled that three covert witnesses will be allowed to testify at trial using pseudonyms and wearing light disguises.
The courtroom will be partially closed when that happens. Members of the public and the press will be able to listen or watch the testimony in an overflow room.
Bredar held that the government can withhold the true identities of the covert witnesses from the defense.
In an interview, Ian Goldstein, one of Russell’s attorneys, said the development “creates a huge impediment to investigating and presenting a defense.”
“As a federal practitioner for almost 25 years, with the exception of practicing in Guantanamo Bay, where the Constitution does not apply, I’ve never been a part of a trial which I did not know the identity of a witness who’s going to give testimony against my client,” said Kobie Flowers, another of Russell’s attorneys.
Russell is scheduled to stand trial Nov 12. He’s incarcerated in the Chesapeake Detention Facility, according to jail records.
