Looking at the standards for classifying intelligence and the separate question of whether it is ‘information respecting the national defense.’
Particularly after reading Mark’s post, I am trying to wrap my head around how Trump administration officials, including the intel chiefs who testified before the Senate today, could maintain with a straight face that what they discussed on Signal was not classified information (or, to the extent the Espionage Act could be relevant, national-defense information).
Under Executive Order 13256, which controls classification, information can be considered classified if (1) “its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security,” and (2) it pertains to one or more of, for example, “(a) military plans, weapons systems, or operations; (b) foreign government information; (c) intelligence activities (including covert action), intelligence sources or methods [and note that Jeffrey Goldberg reports that he did not identify intelligence officers included in the Signal chats]; and (d) foreign relations or foreign activities of the United States, including confidential sources.” (There are other categories in this provision, Section 1.4 of the EO, but these seem to be the germane ones in this instance.)
Whether and at what level information checking those boxes should be classified depends on whether and to what degree its unauthorized disclosure could damage national security. The three categories, laid out in the EO’s Section 1.2, are as follows:
(1) ‘‘Top Secret’’ shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.
(2) ‘‘Secret’’ shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.
(3) ‘‘Confidential’’ shall be applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.
As Mark summarizes:
These U.S. officials [involved in the chats] chewed over highly sensitive topics such as the merits of U.S. military action against the Houthis, our interests in doing so vis-à-vis our European allies, and then, hours before American servicemen would go into action, operational details about the plan of attack. [Emphasis in original.]
In my experience, operational details of imminent U.S. combat operations against a foreign power are top secret — and might even rate more rigorous limited-distribution treatment under Section 4.3, the “Special Access Programs” provision of the EO. Even if we assume that an imminent military attack on Yemen somehow did not rise to the level of top secret classification because disclosure damage would not have been “exceptionally grave” (which seems inconceivable to me, but let’s assume this was the case for argument’s sake), how could it be assessed that disclosure would not at least have “cause[d] damage” of some meaningful, articulable kind to national security, which triggers classification at the “confidential” level?
Put another way, if a low-level military or intelligence officer had leaked the same information at the same time to a journalist, wouldn’t the FBI be all over it? Wouldn’t the Justice Department file charges?
On that score, I heard National Intelligence Director Tulsi Gabbard during the Senate hearing mention what I’ll call the “Hillary Clinton defense” — namely, this was an inadvertent screwup and there was no intention to harm national security. As we observed many times during Secretary Clinton’s emails scandal (including when President Obama gave voice to this rationalization), lack of intent to do harm is not a defense to the Espionage Act prong that criminalizes gross negligence on the part of officials trusted with access to national defense intelligence. (See Section 793(f), Title 18, U.S. Code.) Lack of intent to cause harm is only a defense if traditional criminal intent is an element of the offense at issue (compare, e.g., Section 798, which criminalizes unauthorized disclosure of classified information if done “knowingly and willfully”).
Moreover, as we discussed a number of times in connection with the Mar-a-Lago documents case, in which then-candidate Trump claimed that he had declassified the documents he maintained at his estate, declassification is not a defense to an Espionage Act allegation because the statute criminalizes the mishandling of “information respecting the national defense,” which is not necessarily classified (or at least physically marked as classified).
Obviously, we’ll have to see how all this unfolds, including what specifically was included in the Signal chats (as opposed to mere descriptions of the kinds of information discussed). But I find it very hard to believe the information we are talking about was not classified, probably at a very high level. And it certainly seems to have been information respecting the national defense.