ACLU Challenges Section 702 Oversight in Alleged Terrorism Case Against Neo-Nazi

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

Attorneys with the ACLU's National Security Project will work with Brandon Clint Russell's defense “for the sole purpose of challenging the government's warrantless covert surveillance under Section 702 of the Foreign Intelligence Surveillance Act,” Ashley Gorski, senior attorney with the National Security Project, said in a statement. The edge.

“Based on the government’s own disclosures, we have strong 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 Americans’ communications,” Gorski said.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows intelligence agencies to conduct warrantless surveillance of foreign “targets.” But if U.S. persons—that is, U.S. citizens, permanent residents, and others residing in the country—communicate with foreign targets, their communications may also be subject to Section 702 surveillance. In April, Congress reauthorized the controversial surveillance authority, which was set to expire this year.

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

The FBI affidavit filed in the criminal case does not mention Russell's alleged communications with foreign targets monitored by the FBI, though it does mention that the Atomwaffen division — which it describes as a “racially or ethnically motivated violent extremist group based in the United States” — “is believed to have international ties.”

But in a court filing, ACLU lawyers say Russell has “reason to believe” the government “intercepted his communications” and subjected him to a warrantless “backdoor search” by querying Section 702 databases. The lawyers cite comments by a senior FBI official to a Policy reporter and a speech by FBI Director Christopher Wray on the agency's use of Section 702 to thwart a “potentially imminent terrorist attack” on U.S. critical infrastructure in 2023.

In February, before Congress voted to reauthorize Section 702, Policy The report noted three recently declassified cases in which data collected under Section 702 was used to protect national security. One of the cases, which Russell's lawyers say was his alleged plot to attack Maryland's power infrastructure, involved a person in the United States who was “in regular contact with an unspecified foreign terrorist group, had acquired the means to carry out an attack and had already identified specific targets in the United States,” Policy reported at the time, adding that the FBI stopped the attack about 30 days after first discovering it.

Wray, the FBI director, appears to have mentioned the same terrorist plot in a speech to the American Bar Association in April. “Last year, we discovered that a foreign terrorist had communicated with someone we believed to be in the United States,” Wray said. “It was only by querying the identifiers of this US person in our 702 collection that we found important information about the severity and urgency of the threat. And less than a month after that first request, we disturbed this American who, it turned out, had researched and identified critical infrastructure sites in the United States and had acquired the means to carry out an attack. The defense's motion to compel the federal government to provide notice of Russell's use of Section 702 surveillance includes both the Policy Wray's report and speech as exhibits.

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

The FBI's ability to spy on Americans without a warrant was the subject of heated debate in Congress before FISA expired last April. After multiple failed attempts and failed votes, Congress reauthorized FISA just minutes after the law expired. Lawmakers' attempts to rein in this controversial surveillance authority have failed, and several amendments requiring the FBI to obtain warrants to search or access Americans' communications under Section 702 have been rejected.

In its annual transparency report, released in May, the Office of the Director of National Intelligence said the FBI conducted 57,094 searches for “U.S. persons” data under Section 702, a decrease of 52 % compared to 2022.

“We have long argued that Section 702 oversight is unconstitutional and disproportionately affects people of color and Muslims in the United States and abroad,” said Gorski, the attorney for the law. ACLU. “Especially since this spying authority was recently expanded and reauthorized by Congress, a future administration could further abuse this authority against political opponents, protest movements, and civil society organizations, as well as against racial and religious minorities, abortion providers, and LGBTQ people. »