This week in national security prosecutions...
It was anything but a slow week in the world of national security prosecutions as the Justice Department announced two major prosecutions.
Justice Briefs is a weekly newsletter devoted to federal criminal prosecution. The federal government’s evolution over the last 230 years has given federal prosecutors significant discretion. Few realize it exists and even fewer know how it is used. Justice Briefs aims to make federal prosecutions and prosecutors more accessible to the general public. Please help me in this endeavor by subscribing and sharing with others.
Justice in Brief
In the Western District of Texas, three people were sentenced for their roles in a scheme to defraud the IRS of tens of millions of dollars. The conspiracy involved assuming names of real people--both taxpayers and CPAs—and requesting refunds be sent and then directing the IRS to send the refunds to accounts controlled by the conspirators.
In the District of Massachusetts, a man was sentenced for driving his car into a person of Vietnamese descent. Just prior to the incident, the man yelled at the Vietnamese person and others with him that he would kill them and that they should go back to China.
In the Eastern District of Arkansas, a former state judge was convicted of making false statements to the FBI in connection with allegations that he solicited sex from the girlfriend of a defendant who appeared before the judge. The former judge was acquitted of bribery and honest services fraud.
National Security prosecutions in the news…
As if on cue, the Justice Department’s National Security Division had a busy week last week. It began with the announcement that it had filed criminal a criminal complaint against several HAMAS leaders for their participation in the October 7, 2023 attack on an Israeli music festival. That attack precipitated Israel’s militaristic response which has lasted the past eleven months. Then, it announced various actions, including prosecutions, designed to address Russian interference in the upcoming 2024 presidential election. These charges involved numerous individuals for various crimes. Ultimately, however, these indictments will be more symbolic than substantive. This has been an expanding theory since John Carlin devised the “name and shame” policy for cyberattacks.
The HAMAS conspiracy
The Justice Department filed a criminal complaint in the Southern District of New York charging six HAMAS leaders with seven criminal counts relating to their involvement with HAMAS. These include: (1) conspiracy to provide material support to a designated foreign terrorist organization, (2) conspiracy to provide material support for the commission of terrorist acts, (3) conspiracy to murder U.S. nationals, (4) conspiracy to bomb a place of public use, (5) conspiracy to use weapons of mass destructions, (6) conspiracy to finance terrorism, and (7) conspiracy to violate the International Emergency Economic Powers Act, known as IEEPA.
The first thing to note from these charges is that all of them are for conspiracy, rather than actually committing the offense. Conspiracy is known as an “inchoate” crime, which simply means “incomplete.” The federal government prefers to pursue criminal conspiracy charges rather than the substantive crime. The reason is for matters of proof. Conspiracy does not require that the person charged commit the actual crime. It only requires that the conspirators, whether they know each other or not or committed any act or not, agree to commit a crime and at least one member of the group commits an overt act in furtherance of the crime. In most cases, this is much easier to prove than proving the person committed the actual crime. Hence the government pursues a conspiracy theory (pun intended!).
The substantive charges vary but all involve participating in HAMAS activities. The United States Department of State has the power, granted by Congress, to designate foreign organizations as “Foreign Terrorist Organizations” if they fulfill certain statutory requirements. The law took effect in 1997 and HAMAS was one of the first organizations designated. Anyone who gives “material support,” such as money, weapons, communication devices, or personnel, to HAMAS, knowing that HAMAS has been so designated, is guilty of a crime. Two of the defendants are people who served as chairmen of the HAMAS politburo, which is the organization’s highest-ranking political leadership. Two other defendants are leaders of the HAMAS resistance movement in Gaza. The final defendant is responsible for HAMAS’s national relations abroad. In these roles, they planned and executed several activities. These include giving material support to carry out specific terrorist acts such as murdering US citizens, using weapons of mass destruction, bombing a public place, and financing HAMAS activities. Notably, the charging document does not specify a particular murder or bombing but states that these activities have been ongoing since 1997 when HAMAS was designated. The final charge involves the defendants’ transactions with each other and with people from Iran. The United States government has sanctioned both Iran and various people in both Iran and HAMAS. The sanctions prohibit financial transactions with those sanctioned. Thus, any transaction the defendant made with Iran would violate United States law.
The Russia Cases
Two daya after announcing its case against HAMAS, the Justice Department announced multiple cases against Russian individuals who participated in efforts to influence the 2024 Presidential election. Two cases involved people working for Russian-backed news agencies. A third case involved the use of internet domain names for the benefit of individuals the U.S. government has sanctioned. A fourth case, unrelated to the 2024 election, implicates leaders of Russia’s miliary intelligence cyber unit with conspiring to hack the Ukrainian government. All of these cases were brought simultaneously as part of the government’s launching of a task force to deal with election threats.
The first of the two media cases involves two Russian citizens living in the United States who received millions of dollars to broadcast and produce material on behalf of Russia-1, the main media organization in Russia. The Russian government operates Russia-1 and the United States sanctioned the medial organization as part of its larger sanctions package directed at Russia following the Russian invasion of Ukraine. Receiving these funds and performing this work violated IEEPA.
The second case involves people working with RT, another Russian news organization. The duo received money from RT and then paid a Tennessee-based internet content creator. RT informed the content creators of the desired topics and the content creator posted 1000s of stories and videos consistent with the messaging RT desired. It was meant to create divisions among the American people in advance of the 2024 election. In one instance, one of the duo asked the company to create content that blamed the United States and Ukraine for the Russian invasion of Ukraine. Both people were charged as acting as agents for a foreign government without properly registering.
The internet domain case, while not strictly a criminal case, involved the U.S. Government seizing domain names (i.e. websites) that the Russian government used to produce Russian propaganda for U.S. audiences. Much like the RT material, these stories sought to create division in the United States and to undermine public support for US assistance toward Ukraine. They did this by mimicking actual news websites such as the Washington Post. To do this, they violated US trademark laws. The domains themselves also violated IEEPA sanctions.
The final case, though unrelated to the 2024 election, charged several members of Russia’s military unit specializing in cyber-attacks for hacking Ukraine in advance of Russia’s invasion. Subsequent attacks targeted NATO allies and the United States. They executed these attacks using a US-based company’s computing services.
What does all this mean?
These are not typical federal prosecutions. They are more symbolic and policy-motivated than most federal criminal cases.
The cases are symbolic in the sense that none will likely ever see resolution and that all show the extent of the prosecutorial authority at a global level. In the HAMAS case, three of the six defendants are dead, killed by Israel in its response to the October 7 attacks. Prosecuting those who are dead is, in and of itself, an unusual step for federal prosecutors. The other three are effectively out of reach, based in Gaza, Lebanon and Qatar. In the Russia cases, those who were in the United States fled before their arrest. The others are Russian military. None are likely to be arrested. Instead, these cases send a message. The United States knows what HAMAS is doing and it knows what Russia is doing. Rather than incarcerate the defendants, the federal government wants Russia and Iran to know that the United States is aware of their conduct and will only tolerate it for so long. They also show that, in theory, with today’s globally connected world, the government’s criminal jurisdiction extends to nearly anyone and anywhere. Only five of the defendants has ever entered the United States. Those who have not entered the US are, nonetheless, subject to US laws through a theory known as extraterritorial jurisdiction. If Congress specifies or if one element of the offense takes place in an area the United States controls, then the defendant may be prosecuted by the United States. These charges stem from both theories of extraterritorial jurisdiction
These are also policy-driven cases. The HAMAS cases implements policy on two levels. First, it is part of the nation’s now 23-year old battle against terrorism. When it began, then-President George W. Bush said that battle would take many forms. One of its more enduring forms is the use of criminal prosecution. The government, in the HAMAS case, shows its willingness to continue those efforts and indict major terrorist leaders. Yet this is not the only reason. As the government’s complaint indicates, it has been tracking the work of these defendant for many years. It could have initiated these cases at any time. Instead, they come in the midst of ceasefire talks between Israel and HAMAS and in the midst of an ongoing Israeli offensive against the group. It also follows on the heals of the announcement that an American hostage had been killed by HAMAS. All of this seems to be timed to show some support for Israel in its ongoing efforts to root out HAMAS from Gaza.
The policy motive behind the Russian cases is even more apparent. Like it did in 2016, the Russian government is seeking to sow discord among the American electorate and undermine faith in the election outcome. Unlike 2016, when the government did not disclose its knowledge of Russian involvement, these charges show the federal government is aware of these activities and wants to prevent their occurrence. While the defendant will not be prosecuted, they will be arrested should they attempt to re-enter the United States. This will limit their ability to spread pro-Russian propaganda through social media outlets. It also makes US citizens aware of what is happening and they will, hopefully, respond by being more diligent in fact-checking the information they receive.
Thus concludes a busy week in the world of national security prosecutions!
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!