Prosecutors will say in secret whether they used controversial spying tool against neo-Nazi accused in Baltimore power grid plot

“We need to know who these witnesses are so we can conduct our own investigation,” Goldstein said.

Bredar appeared at first to be favoring the defense’s argument, but reversed course and granted prosecutors’ requests for secrecy after closing the courtroom to the public for a confidential discussion.

Russell’s defense team will not know the true identities of the secret witnesses and the public will have to leave the courtroom during their testimony at Russell’s trial, though audio of the testimony will be played in another room for the public to hear.

“It creates a huge impediment to investigating and creating a defense,” Goldstein said after the hearing.

The defense also has demanded to know whether the government used FISA to collect evidence as part of the case. The spying tool allows the government to collect intelligence on non-Americans outside the United States but is controversial because it also captures data from Americans.

The government is supposed to provide notice to criminal defendants if it plans to use information obtained through or derived from FISA surveillance.

The defense made an unusual argument, noting that the FBI publicly revealed earlier this year that it used data collected under FISA to prevent a “potentially imminent terrorist attack” against critical infrastructure in the United States.

The FBI told Politico in February that “the ability to search the Section 702 database without a court order showed that a person located inside the U.S. was in regular contact with an unspecified foreign terrorist group, had acquired the means to conduct an attack and had already identified specific targets in the U.S.”

The FBI also said it thwarted the plot about 30 days after discovering it.

Russell’s case is the only one that his lawyers have been able to locate that matches the details the FBI disclosed, the defense wrote in court papers, setting off alarms that the government may have used data gleaned under FISA against Russell but failed to notify him.

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