ACLU challenges Section 702 surveillance in alleged terrorism case against neo-Nazi

The American Civil Liberties Union (ACLU) has joined the defense team for a neo-Nazi accused of plotting to sabotage Baltimore’s electrical grid, The Baltimore Banner reports.

Attorneys from the ACLU’s National Security Project will be working with Brandon Clint Russell’s defense “for the limited purpose of challenging the government’s secretive warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act,” Ashley Gorski, a senior staff attorney with the National Security Project, said in a statement to The Verge.

“Based on the government’s own disclosures, we have good reason to believe that Mr. Russell was subjected to Section 702 surveillance and his case 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,” Gorski said.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows intelligence agencies to conduct warrantless surveillance of foreign “targets.” But if US persons — i.e., US citizens, permanent residents, and others residing in the country — communicate with foreign targets, their communications can get swept up in Section 702 surveillance as well. In April, Congress reauthorized the controversial surveillance authority, which was set to expire this year.

Russell — the founder of the Atomwaffen Division, a neo-Nazi group — was charged with conspiracy to destroy an energy facility in February 2023. Prosecutors allege that Russell and his accomplice, Sarah Beth Clendaniel, plotted to attack multiple electrical substations across the state of Maryland. In communications with a federal confidential informant, the pair allegedly planned to “coordinate to get multiple [substations] at the same time.” Clendaniel pleaded guilty to conspiring to damage or destroy electrical facilities in May of this year. 

The FBI’s affidavit filed in the criminal case does not mention Russell’s alleged communications with foreign targets of FBI surveillance, though it does mention that the Atomwaffen Division — which it describes as a “US-based racially or ethnically motivated violence extremist” group — “reportedly has international ties.”

But in a court filing, the ACLU attorneys say Russell has “reason to believe” that the government “intercepted his communications” and subjected him to a warrantless “backdoor search” by querying the Section 702 databases. The attorneys cite comments a senior FBI official made to a Politico reporter and a speech by FBI Director Christopher Wray about the agency’s use of Section 702 to thwart a “potentially imminent terrorist attack” against US critical infrastructure in 2023. 

In February, ahead of Congress’ vote to reauthorize Section 702, Politico reported on three recently declassified instances in which data collected under Section 702 was used to protect national security. One of the instances, which Russell’s attorneys believe to be his alleged plot to attack Maryland’s electrical infrastructure, involved a person in the US who 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 US,” Politico reported at the time, adding that the FBI stopped the attack roughly 30 days after first uncovering it. 

Wray, the FBI director, appears to have mentioned the same terrorist plot in an April speech before the American Bar Association in April. “Just last year, we discovered that a foreign terrorist had communicated with a person we believed to be in the United States,” Wray said. “Only by querying that US person’s identifiers in our 702 collection did we find important intelligence on the seriousness and urgency of the threat. And less than a month after that initial query, we disrupted that US person who, it turned out, had researched and identified critical infrastructure sites in the US and acquired the means to conduct an attack.” The defense’s motion to compel the federal government to provide notice of use of Section 702 surveillance of Russell includes both the Politico report and Wray’s speech as exhibits. 

In a response filed last week, prosecutors said the defense’s “extraordinary motion to compel is based on pure speculation.” The filing also notes that the obligation to provide notice of information obtained via FISA only applies if the government intends to enter that information into evidence or otherwise use it against an aggrieved person in a trial or other proceeding. The ACLU’s response, filed this Monday, notes that the government “does not dispute that Mr. Russell was subject to warrantless surveillance under Section 702” but instead claims it has no legal obligation to turn over FISA notice in this instance.

The FBI’s ability to spy on Americans without a warrant was the subject of contentious Congressional debate ahead of FISA’s expiration this April. After multiple stalled attempts and failed votes, Congress reauthorized FISA just minutes after the statute had expired. Legislators’ attempts to rein in the controversial surveillance authority failed, and multiple amendments requiring the FBI to obtain warrants to search or access Americans’ communications under Section 702 were voted down. 

In its annual transparency report, published in May, the Office of the Director of National Intelligence said the FBI conducted 57,094 searches of “US person” data under Section 702 — a 52 percent decrease from 2022. 

“We have long argued that Section 702 surveillance is unconstitutional and that it disproportionately impacts people of color and Muslims at home and abroad,” Gorski, the ACLU attorney, said. “Especially as recently expanded and reauthorized by Congress, this spying authority could be further 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.”