The American Civil Liberties Union (ACLU) has joined the defense team for a neo-Nazi accused of plotting to sabotage Baltimore\u2019s electrical grid, The Baltimore Banner<\/em> reports<\/a>. <\/p>\n<\/div>\n Attorneys from the ACLU\u2019s National Security Project will be working with Brandon Clint Russell\u2019s defense \u201cfor the limited purpose of challenging the government\u2019s secretive warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act,\u201d Ashley Gorski, a senior staff attorney with the National Security Project, said in a statement to The Verge<\/em>.<\/p>\n<\/div>\n \u201cBased on the government\u2019s 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\u2019s practice of conducting warrantless \u2018backdoor searches\u2019 of its Section 702 databases to locate the communications of Americans,\u201d Gorski said.<\/p>\n<\/div>\n Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows intelligence agencies to conduct warrantless surveillance of foreign \u201ctargets.\u201d But if US persons \u2014 i.e., US citizens, permanent residents, and others residing in the country \u2014 communicate with foreign targets, their communications can get swept up in Section 702 surveillance as well. In April, Congress reauthorized the controversial surveillance authority<\/a>, which was set to expire this year.<\/p>\n<\/div>\n Russell \u2014 the founder of the Atomwaffen Division, a neo-Nazi group \u2014 was charged with conspiracy to destroy an energy facility<\/a> 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\u00a0to \u201ccoordinate to get multiple [substations] at the same time.\u201d Clendaniel pleaded guilty<\/a> to conspiring to damage or destroy electrical facilities in May of this year.\u00a0<\/p>\n<\/div>\n The FBI\u2019s affidavit filed in the criminal case does not mention Russell\u2019s alleged communications with foreign targets of FBI surveillance, though it does mention that the Atomwaffen Division \u2014 which it describes as a \u201cUS-based racially or ethnically motivated violence extremist\u201d group \u2014 \u201creportedly has international ties.\u201d <\/p>\n<\/div>\n But in a court filing, the ACLU attorneys say Russell has \u201creason to believe\u201d that the government \u201cintercepted his communications\u201d and subjected him to a warrantless \u201cbackdoor search\u201d by querying the Section 702 databases. The attorneys cite comments a senior FBI official made to a Politico<\/em> reporter and a speech by FBI Director Christopher Wray about the agency\u2019s use of Section 702 to thwart a \u201cpotentially imminent terrorist attack\u201d against US critical infrastructure in 2023.\u00a0<\/p>\n<\/div>\n In February, ahead of Congress\u2019 vote to reauthorize Section 702, Politico<\/em> reported<\/a> on three recently declassified instances in which data collected under Section 702 was used to protect national security. One of the instances, which Russell\u2019s attorneys believe to be his alleged plot to attack Maryland\u2019s electrical infrastructure, involved a person in the US who was \u201cin 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,\u201d Politico <\/em>reported at the time, adding that the FBI stopped the attack roughly 30 days after first uncovering it.\u00a0<\/p>\n<\/div>\n The FBI director appears to have mentioned the same terrorist plot in an April speech<\/p>\n<\/div>\n<\/div>\n Wray, the FBI director, appears to have mentioned the same terrorist plot in an April speech before the American Bar Association in April. \u201cJust last year, we discovered that a foreign terrorist had communicated with a person we believed to be in the United States,\u201d Wray said. \u201cOnly by querying that US person\u2019s 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.\u201d The defense\u2019s motion to compel the federal government to provide notice of use of Section 702 surveillance of Russell includes both the Politico<\/em> report and Wray\u2019s speech as exhibits.\u00a0<\/p>\n<\/div>\n In a response filed last week, prosecutors said the defense\u2019s \u201cextraordinary motion to compel is based on pure speculation.\u201d 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\u2019s response, filed this Monday, notes that the government \u201cdoes not dispute that Mr. Russell was subject to warrantless surveillance under Section 702\u201d but instead claims it has no legal obligation to turn over FISA notice in this instance.<\/p>\n<\/div>\n The FBI\u2019s ability to spy on Americans without a warrant was the subject of contentious Congressional debate ahead of FISA\u2019s expiration this April. After multiple stalled attempts and failed votes, Congress reauthorized FISA<\/a> just minutes after the statute had expired. Legislators\u2019 attempts to rein in the controversial surveillance authority failed, and multiple amendments requiring the FBI to obtain warrants to search or access Americans\u2019 communications under Section 702 were voted down.\u00a0<\/p>\n<\/div>\n