The alarming reckless disregard for national security

The national security risks should be obvious to anyone who cares.

By Barbara McQuade

I once accidentally sent a text message intended for my husband to a group of friends instead. The message was sweet and a little bit mushy. My friends let me know of my error right away, with gentle teasing that included kissy face emojis and messages that they loved me, too.

Most of us have likely made similar mistakes. But when our nation’s top national security officials recently inadvertently included a reporter in a Signal chat discussing military plans, their gaffe was more than an embarrassing slip-up. It revealed a serious threat to our national security.

But the accidental inclusion of the reporter in the chat is the least of the concerns. As a former national security prosecutor, I find the most alarming aspect of the incident to be the reckless decision to use a non-government messaging app to communicate about national defense information in the first place.

As Jeffrey Goldberg, editor-in-chief of The Atlantic, disclosed this week, he was added, apparently in error, to a group chat that included the vice president, secretary of Defense, the secretary of State, the national security adviser, and the directors of national intelligence and the CIA, among others. The group discussed plans for a military airstrike on Houthi rebels in Yemen, with Secretary of State Pete Hegseth revealing details about the timing, sequencing and types of aircraft for the attack two hours before the operation.

The national security risks should be obvious. Even though Signal is an encrypted app, sophisticated hackers can still access communications. In February, the National Security Agency, part of the Defense Department that specializes in signals intelligence, had issued a memo warning that Signal was a “high value target to intercept sensitive information.” In addition, if any of the officials had lost their phones, an unauthorized person potentially could have read the messages. Don Bacon, a Republican Congressman from Nebraska and former Air Force brigadier general, called the use of Signal to discuss attack plans “unconscionable.” He noted that Russia and China are “surely monitoring” unclassified phones and that the disclosures put at risk the lives of the service members involved in the strikes.

In addition, the breach could have exponential consequences. Allies routinely share valuable intelligence information with the U.S. government on the condition that it be protected from disclosure. Similarly, human sources of information risk their lives to provide information to U.S. intelligence agencies. Both will be more reluctant to share information with the United States if they perceive our officials to be reckless in safeguarding it.

So far, President Donald Trump and members of his administration have downplayed the significance of what is certainly an astonishing lapse of duty. Trump called public outcry over the scandal a “witch hunt.” Hegseth, Director of National Intelligence Tulsi Gabbard and CIA Director John Ratcliffe have each said that no classified information was disclosed. It is difficult to imagine that plans for an imminent military attack are not classified, defined as information, the disclosure of which would cause serious harm to national security. But it is the executive branch that determines whether information is classified, so perhaps this information, remarkably, was not so designated. But classification is not a relevant factor here. Even if the information was not classified, its disclosure is still a breach of the duty to protect our nation’s secrets and possibly a violation of the law.

The Espionage Act contains a number of provisions that make it a crime to disclose national defense information, regardless of whether the information is classified. Under Section 793(f) of the statute, a person who is entrusted with national defense information is guilty of an offense if, through gross negligence, they “permit the same to be removed from its proper place of custody or delivered to anyone in violation of this trust, or to be lost, stolen, abstracted, or destroyed.” Simply using Signal to discuss attack plans seems sufficient to meet this legal standard. The delivery of the information to Goldberg through gross negligence seems like an additional violation. An investigation seems warranted, though Attorney General Pam Bondi said Thursday that a probe was unlikely.

In addition to the potential violation of the Espionage Act, the conduct also appears to violate the Federal Records Act. This statute requires agency heads to preserve federal records of agency decisions and prohibits the destruction of records except as authorized. According to Goldberg’s reporting, the Signal chat was set to automatically delete the messages after one to four weeks. Using an app set to delete messages automatically is like writing memos in disappearing ink – no paper trail remains to hold officials accountable for their conduct. On Thursday, in a lawsuit brought by American Oversight, a government watchdog, alleging violation of the Federal Records Act, U.S. District Judge James Boasberg ordered the government to take steps to preserve the Signal messages.

The casual nature of the communications between Cabinet officials makes one wonder whether this is the first time they have used Signal to discuss sensitive matters that should be preserved as government records. Let’s hope the next time they accidentally add a member to the group chat, it’s not “V. Putin.”

Barbara McQuade is a professor from practice at the University of Michigan Law School, former U.S. Attorney for the Eastern District of Michigan, and author of the New York Times bestseller “Attack from Within: How Disinformation is Sabotaging America.”

---