Feds gave classified information to neo-Nazi defendant: lawyer

05.03.2024 19:48

Raw Story

Federal prosecutors inadvertently turned over classified information to avowed white supremacist Jordan Duncan, who is preparing for trial on charges related to an alleged plot to attack the power grid and launch a race war, his lawyer tells Raw Story.

Raymond Tarlton, Duncan’s lawyer, made a startling classified material discovery on Feb. 22 when the government turned over a batch of files to the defense team.

“We all of a sudden realized there was classified information produced to us,” Tarlton told Raw Story, explaining that his defense team gave the classified material back to the government. “No one on our defense team has a security clearance … It’s put a big pause in our preparations for them to cure what they call ‘spillage.’

“I did not see this one coming,” Tarlton added.

The U.S. Attorney’s Office for the Eastern District of North Carolina declined to comment through spokesperson Katie Holcomb.

The FBI was responsible for reviewing the materials, Tarlton said, explaining that agents were “supposed to spend years combing through the drive, sanitizing the data.”

The FBI Charlotte office, which covers North Carolina, declined to comment, per spokesperson Shelley Lynch.

The fact that the government inadvertently shared classified information with a defendant accused of large-scale violent crimes “could indicate a colossal screwup and government incompetence,” said Edward C. Shaw, a former FBI legal attaché at the U.S. Embassy in Tokyo with national security experience.

“Or it could indicate a lack of resources to review the evidence in a secure manner,” he said. “Which in a way is a form of government incompetence.”

Three-year search for classified information

The government contends that Duncan, a Marine Corps veteran and former military contractor, already possessed classified information — news first reported by Raw Story last year.

But to date, prosecutors have not leveled any charges against Duncan for stealing government secrets or mishandling sensitive defense information.

The classified information was found on an external hard drive that the government seized from Duncan at the time of his arrest in October 2020.

Instead, Duncan was charged alongside three other men with conspiracy to illegally manufacture firearms and with plotting to destroy an energy facility.

Duncan’s three co-defendants, all alleged members of a neo-Nazi group called BSN, have reached plea deals with the government. Duncan was scheduled to go on trial this month in Wilmington, N.C., until the recent classified information snafu upended those plans.

The classified material originally found on Duncan’s hard drive has repeatedly hampered the defendant’s efforts to review the government’s evidence against him.

Tarlton, Duncan’s lawyer, wrote in a filing last month that federal prosecutors informed him that they could not provide his client with a copy of the hard drive “due to the chance that the government may have missed one or more items of classified information” in its effort to scrub the storage device.

The government has had more than three years since Duncan’s arrest to review material Duncan possessed and determine whether his handling of classified information warrants additional charges. Authorities seized 152 gigabytes worth of data on the hard drive Duncan possessed.

Raw Story is currently suing the U.S. Department of Defense, which oversees the Naval Criminal Investigative Service, for the release of information about the government’s investigation of Duncan for potentially mishandling classified materials.

'Not everything is about guerrilla warfare'

While it’s difficult to assess the risk to national security without knowing the contents of the classified information, Shaw, the former FBI legal attaché, said foreign adversaries might exploit the breach by attempting to hack the defense team’s computers if they thought the information was sensitive.

The task of reviewing a storage device containing 152 gigabytes of data, even with the aid of an artificial intelligence program, requires human eyes, Shaw said.

Unlike other material such as child pornography, for example, only agents with specific authorization can review materials containing classified information. And, Shaw said, the materials can only be reviewed in a secure facility equipped with protection from electromagnetic penetration.

The process is more complicated than merely flagging documents marked confidential, Shaw said. Agents tasked with securing classified materials are often on the lookout for text, photographs or numbers in which the classified markings have been removed. Or classified documents might be chopped up and reconfigured.

The exact contents of the classified materials and their level of sensitivity remains unknown in Duncan’s case. But the government has alleged in a press release that “Duncan gathered a library of information, some military-owned, regarding firearms, explosives, and nerve toxins” that he shared with other members of the white supremacist group.

Any classified materials on the hard drive came from Wikileaks, the website created by Julian Assange to share government secrets, Tarlton told Raw Story, if not directly than through a secondary website. Tarlton added that his client has always maintained that he did not obtain the classified information through his military contract work.

Tarlton has pointed to a statement by Joseph Zacharek — a former member of the white supremacist group Duncan allegedly belonged to — who is expected to testify for the government, to support his contention that Duncan did not abuse his military contracting job to obtain government secrets.

Zacharek, a former Lafayette, Ind., police officer, told the FBI during an interview shortly after Duncan’s arrest that he was not aware of “Duncan using his security clearance to obtain information for the BSN group,” according to a letter from Tarlton to the U.S Justice Department that was obtained by Raw Story.

The government did not address Tarlton’s characterization of Zacharek’s statement in a response filed with the court in February. In any case, the government has previously agreed to not mention the classified information in front of the jury when the case goes to trial.

“We think the classified documents are a relatively small amount of that data,” Tarlton told Raw Story. “The vast majority of it is unclassified — survival and prepper manuals; it’s ideological material about white supremacy that is deplorable but protected by the First Amendment. Not everything is about guerrilla warfare — far from it.”

The government rarely brings charges for mishandling classified information, particularly when prosecutors have the option of charging defendants with other crimes, Shaw told Raw Story. That’s because to prove that the information is classified the government would have to reveal it in open court. Depending on the sensitivity of the information, disclosing it could have severe consequences.

“Let’s say he had information about a U.S. spy that’s in China,” Shaw said. “Well, it’s the name of the spy and his contact. They don’t want to reveal that information because five minutes after the information is revealed, that spy is going to be floating in the Yellow River.”

The fact that the classified information is honeycombed through the evidence that the government plans to use in its quest to convict Duncan for conspiracy to illegally manufacture guns and attack the power grid is complicating the effort to bring him to trial.

Chief Judge Richard Myers II has told the government and defendant they should be prepared to propose new trial dates by Friday.

Speaking with Raw Story, Tarlton questioned whether the government will ever be able to meet its obligation to turn over the evidence — specifically the non-classified kind — to his client.

“This inadvertent disclosure of classified information by the FBI,” he said, “shows that maybe there is an issue with whether they have the ability to truly turn over a sanitized version of the hard drive.”