Signal[ing] and the Espionage Act
Last week featured news that high-level government officials shared sensitive attack plans with each other via the communications app, Signal. Did they violate federal law by doing so?
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Justice in Brief
In the District of Minnesota, two people were charged with unlawfully exporting goods from the United States to Pakistan through a Canadian company. The duo carried on this activity for sixteen years.
In the District of Nevada, a man was charged with the unlawful possession of an unregistered firearm and arson after he burned several Teslas at a dealership in Las Vegas.
The US Attorneys on the southwest US border announced a total of 840 criminal defendants charged with a range of immigration offenses over the previous week. Most involved illegal re-entry into the United States.
Updates…
The Attorney General continued her rhetoric by commenting on judges. She noted that any judge that has ruled against President Trump “obviously cannot be impartial. They cannot be objective.” This followed her warning to a Texas Congresswoman who made comments about Elon Musk. Attorney General Bondi warned, “[The Congresswoman] is an elected public official, so she needs to tread very carefully because nothing will happen to Elon Musk, and we’re going to fight to protect all of the Tesla owners throughout this country.”
Another former Donald Trump attorney received a Justice Department appointment. Alina Habba, who represented the President in a civil fraud lawsuit, was appointed on an interim basis after President Trump appointed the interim US Attorney, who had been in the position for a month, as an ambassador.
The Signal Problem with the Espionage Act
On March 15, the US military bombed Houthi positions in Yemen. The Houthis, an Iranian backed organization, formally known as Ansar Allah, and recently re-designated by the US States Department as a foreign terrorist organization, have launched missile strikes against Israel in support of HAMAS and have attacked ships traveling in the Red Sea. United States government officials communicated electronically prior to the attacks. Participants included the Secretary of Defense, the National Security Advisor, the Director of National Intelligence, the Director of Central Intelligence, and Vice President of the United States. They discussed the bombing plans in significant detail, including the time of the attack and the type of attack, and whether to not the attack should take place. There were two problems with this communication. First, they used the commercially-available messaging app, Signal, to discuss these plans rather than secure communications technology. Second, and more importantly for this discussion, they included the editor of the Atlantic in these communications. After the Atlantic published the discussion, multiple journalists raised the question of whether the conduct violated the Espionage Act.
In reality, whether or not the conduct violated the Espionage Act is something of an academic exercise because the current Justice Department will not investigate, let alone prosecute, the conduct. Attorney General Bondi has already dismissed the idea of a criminal investigation. One might also think this would be a situation calling for an independent special counsel. Bondi also dismissed those at her confirmation hearing and in her first orders upon confirmation.
Suppose, however, the Justice Department did conduct an investigation. Would criminal charges using the Espionage Act be appropriate?
The activity that might lead to an Espionage Act prosecution originated with a series of Signal messages sent between the Trump Administration’s national security leadership. These messages spanned several hours before and after a planned US attack on Houthi positions in Yemen. The information included confirmation that the weather was suitable for the attack, the timing of the attack, the military equipment to be used in the attack, the fact that the target was seen walking into his girlfriend’s residence, that the residence had been hit, that they had a positive identification on the target, and that more strikes would follow. In the days prior to the attack, the group discussed the attack plans. It included Vice President Vance’s opposition to the attack and how the Administration would sell the attack to the American people.
One potential criminal law violated by these communications is the Espionage Act of 1917. The law was passed when the United States joined World War I and was concerned about people in the United States acquiring information related to the government’s plans. There was also concern about foreign agents penetrating US military preparations and causing harm through sabotage or information disclosure. Today, the statute is codified at 18 USC 793.
Section 793 prohibits seven different misuses of “information related to the national defense.” Two of them are particularly relevant to the Administration’s Signal communications. Subsection (e) prohibits willfully communicating “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation…to any person not entitled to receive it.” Subsection (f) prohibits anyone who has lawful possession of “information, relating to the national defense” from permitting “through gross negligence” the delivering it to “anyone in violation of his trust.” Each subsection presents its own legal problems.
Under subsection (e), despite what the Administration might say, the information disclosed relates to the national defense. The Administration designated the Houthis a foreign terrorist organization. The group poses a threat to US interests. The Signal conversation includes the importance of the attack in order to facilitate US shipping through the Red Sea. If US ships are threatened by the Houthis, those attacks should be prevented. The attack plans, therefore, relate to the national defense. Those plans could also be used to injure the United States. Release of information about the timing of the attack to someone wanting to thrwart it gives that person or group the opportunity to do so by shooting down the planes conducting the attack. The possessor of this information, meaning those on the group chat, must have reason to believe this could happen. There is no doubt all of them were aware of the problem release of the information could cause. The information was also given to someone who was not authorized to receive it. This leads to the problem: it was not done willfully as the statute requires. As far as the available evidence allows, no one knew the editor of the Atlantic was included in the group chat. This prevents application of this subsection.
The problem with subsection (f) is similar. This section prohibits disclosure through “gross negligence.” Including the Atlantic editor in a group chat comes closer but still likely falls short. Negligence requires someone to fail to be aware of a risk and that risk is a gross deviation from the standard of care a reasonable person would use in the same situation. This means the person act without regard to the consequences. While national security officials should be aware of everyone in their group chat, from the released transcript, it sounds like there were a large number of people on the group chat beyond those who actually sent messages. There is also a strong possibility that the group chat was created hastily and only for the purpose of this attack. This would seem to indicate a level of negligence. However, gross negligence is a reckless disregard for the consequences. There is one line in the transcript that could indicate they were aware of the consequences. One person notes that he will not send classified information through the group chat. This shows they were aware of their communication method. They simply did not think that sharing this information in an unsecure group chat carried significant potential harm. This says more about their competence rather than their criminal liability.
Ultimately, a criminal prosecution using the Espionage Act will fail on its legal merits. There are other criminal possibilities such as offenses relating to the disclosure of national security information. The criteria for this, however, is more tightly controlled by the President and, in this case, the Defense Secretary. This would impair any prosecution under these offenses. As a result, not only will no prosecution occur because the Administration won’t investigate, no prosecution will result because the legal basis for it is not strong.
I hope you enjoyed this issue and that it made you stop and think. I would love to hear any comments, questions, concerns, or criticisms that you have. Leave a comment or send a message! Also, if you enjoyed this or if it challenged your thinking, please subscribe and share with others!