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

The government has not clarified whether the FBI was, in fact, referencing Russell’s case in those public remarks.

Bredar noted in court that the defense’s argument is based on speculation that the remarks were about the Baltimore power-grid case, but he asked whether the government would be willing to say whether FISA was used.

“The answer is, as I understand, classified,” Gavin replied.

After checking with attorneys with the U.S. Department of Justice’s National Security Division, Gavin clarified that she would be able to share the answer with Bredar in a classified setting. The defense will not be part of that discussion.

The meeting will take place in the next three weeks, Bredar said.

The FISA aspect of the case recently led three attorneys from the ACLU to join Russell’s defense team.

Ashley Gorski, a senior staff attorney with the ACLU’s National Security Project, said in a statement that the group joined Russell’s defense “for the limited purpose of challenging the government’s secretive warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act. For the ACLU, this is about government abuse of power.”

Russell’s case, Gorski said, “is a rare and important opportunity to challenge the government’s practice of conducting warrantless ‘backdoor searches’ of its Section 702 databases to locate the communications of Americans.”

The ACLU has argued for years that the surveillance is unconstitutional and disproportionately used against people of color and Muslims. The recently reauthorized spying authority also could be “abused by a future administration against political opponents, protest movements, and civil society organizations, as well as racial and religious minorities, abortion providers, and LGBTQ people,” Gorski said in the statement.

In court, Gorski warned that prosecutors have been known to use a narrow interpretation of the law to avoid revealing the use of FISA, unilaterally deciding that the evidence they plan to use is too far removed from information gleaned through the spying program to require disclosure.

The government has not notified any criminal defendants of surveillance under Section 702 of FISA since 2018, Gorski said, despite its widespread use of the surveillance tool.

Russell, who appeared in court Thursday in a maroon prison jumpsuit, is set to face trial in November.

He was sentenced in 2018 to five years in federal prison for possessing chemicals used to create explosives. Law enforcement found the materials while they were investigating the murder of two of Russell’s roommates in Florida in 2017.

Russell told investigators that he started his own local violent extremist group with Nazi beliefs called the “Atomwaffen.” His three roommates were members of Atomwaffen until one murdered the other two in 2017 for bullying him after he converted to Islam, according to an FBI affidavit. Russell was not home when the murders took place.

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