(Tribune News Service) — Federal prosecutors said they are willing to disclose whether they used a controversial surveillance program to foil a Florida neo-Nazi leader’s alleged plot to attack Baltimore’s power grid last year, but will only do so in secret, during a classified meeting with the judge handling the case.

Government lawyers refused Thursday to disclose publicly whether they used Section 702 of the Foreign Intelligence Surveillance Act to build the case against the accused plotter, Brandon C. Russell, but agreed to a private meeting with Senior U.S. District Judge James K. Bredar where they will provide more information.

Russell’s defense team remains skeptical. After Thursday’s hearing, an attorney with the American Civil Liberties Union who recently joined the case said the government has a history of using a narrow interpretation of the law to avoid disclosing uses of FISA in prosecutions.

Russell, 28, is accused of plotting with a Catonsville woman, Sarah Beth Clendaniel, to destroy multiple electrical substations in the Baltimore region. The pair allegedly hoped to cause a “cascading failure” of the power grid by targeting energy facilities in Norrisville, Perry Hall, Reisterstown and other areas around Baltimore.

Clendaniel, 36, pleaded guilty in May in exchange for a recommended sentence of 18 years in prison.

Russell’s case has become increasingly shrouded in secrecy. Bredar ruled Thursday that three undercover witnesses will be able to testify at Russell’s trial using “light disguise,” such as altered facial hair or hairstyles, and will be able to use pseudonyms to protect their identities.

The government calls Russell a “racially and ethnically motivated violent extremist.” He is accused of offering instructions to Clendaniel and an undercover FBI informant online and tasking the pair with carrying out the energy station attacks, according to the indictment.

Russell communicated over an encrypted messaging app in chat groups known as the “Terrorgram Collective,” an ideological hub for people who share white-supremacist and “accelerationist” views that call for the intensification of racial conflict and societal collapse, according to the government’s court filings.

Assistant U.S. Attorney Kathleen Gavin said in court that the undercover witnesses against Russell would be at risk of being “doxxed,” or having their personal information exposed online, if they testified under their true names.

Russell’s attorney, Ian J. Goldstein, responded that the witnesses are not “good Samaritans,” but paid informants.

“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.

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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