Attorneys from the American Civil Liberties Union’s National Security Project have joined the defense team for Brandon Clint Russell, the neo-Nazi accused of plotting to attack power substations around Baltimore.
Their involvement stems from questions raised in recent weeks by Russell’s attorneys about whether federal authorities used and have failed to disclose the use of a controversial foreign surveillance tool in the investigation that foiled the alleged plot.
The ACLU’s Ashley Gorski, a senior staff attorney, said in a statement that the group joined for the limited purpose of challenging the government’s warrantless backdoor searches, saying they believe it occurred in this case and is “a rare and important opportunity” to challenge the practice.
“For the ACLU, this is about about government abuse and power,” Gorski said. “In defending the Fourth Amendment Rights at stake in this case, we seek to ensure that all Americans are protected from warrantless government surveillance.”
Russell, of Orlando, previously admitted to being a member of Atomwaffen, a neo-Nazi group that he founded and led.
Russell was indicted in February 2023 on charges that he plotted online with a Maryland woman to cause a “cascading failure” through attacks on energy substations ringing the Baltimore area, including in Norrisville, Reisterstown and Perry Hall.
The woman, Sarah Beth Clendaniel, pleaded guilty earlier this year.
The defense said Russell “appears to have been in frequent communication with individuals located abroad prior to his arrest.”
In arguing that the government had failed to disclose use of the warrantless spying in his case, defense attorneys pointed to a speech from FBI Director Christopher Wray, as well as a POLITICO article from earlier this year in which unnamed FBI officials argued for the need to be able to continue to use warrantless, digital spying authority codified in Section 702 the Foreign Intelligence Surveillance Act.
In making the case, they noted that it had been used to thwart a “potentially imminent terrorist attack” against U.S. critical infrastructure last year. The details used to describe the attack appear to match up with Russell’s case, the attorneys said.
“Based on a search of federal criminal dockets and Department of Justice press releases since January 2023, this prosecution is the only case involving allegations that track the details in the Politico Article and FBI Director Wray’s speech,” the defense wrote in a June 11 filing.
But the government had not disclosed anything in discovery related to such spying.
Federal prosecutors in Maryland did not directly address whether they used the technique, saying instead that there were only certain circumstances that require disclosure.
“The government is aware that it has obligations to produce classified information if certain conditions are met and that it cannot withhold information it would otherwise be required to produce merely because it is classified. The government has and will continue to fully abide by its obligations,” prosecutors wrote in response.
Patrick Toomey, the deputy director of the ACLU’s National Security Project, whose work on Section 702 was cited in the defense’s earlier filing, entered his appearance on the case Tuesday along with Gorski and another attorney from the civil liberties group.
The case was set to go to trial next month but was postponed until November.
Congress narrowly voted in April to extend the warrantless spying authority for two more years, and President Joe Biden signed the legislation.
Maryland U.S. Sen. Chris Van Hollen, a Democrat, was among those who voted against the legislation, saying he voted for amendments that would address his concerns that were not adopted.
“While I support the underlying authority in Section 702, I believe more needs to be done to protect Americans from its possible misuse,” he said in a statement at the time.
Russell’s defense attorneys said in their June 10 filing that the government has a long track record of failing to provide notice of Section 702 surveillance.
“For five years after Section 702′s enactment, from 2008 to 2013, the government did not give notice to a single accused person,” they wrote. “Only after several people in criminal cases moved to compel notice did the public learn that the Department of Justice had a practice of concealing use of Section 702 in criminal cases.”
In response to public scrutiny, the DOJ modified its notice policy and gave notice to 11 people between 2013 and 2018.
“But over the past six years, those notices have inexplicably disappeared once again — no criminally accused has received notice of Section 702 surveillance since 2018,” Russell’s attorneys wrote. “That is despite the fact that FBI agents have searched through Section 702 databases for Americans’ communications millions of times over the same period, and despite the government’s claims that Section 702 surveillance provides invaluable access to Americans’ communications for both intelligence and law enforcement investigations.”
