The Signal chat, state secrets, and March 15

Some thoughts on what we've learned over the past two days.

Monday’s news — Jeffrey Goldberg’s story in The Atlantic of being accidentally added to a Signal group chat of President Donald Trump’s top national security advisors, including several cabinet secretaries, in the run-up to this month’s military bombing in Yemen on March 15 — was damning.

First, there was the carelessness. Second, there was the lawlessness. Third, there was the callousness. Fourth, and following the publication of the story, there was the deception (if not outright lies). And, finally, there was the attack — on Goldberg.

Many members of the Trump administration do not seem to care about the law — and appear eager to find ways around it. In doing so, however, this group apparently forgot the No. 1 rule of such wrongdoing: Make sure there’s not a reporter in the room.

As everyone took in the Signal story, something else also started happening. Monday’s publication of this egregious failure to protect the nation’s secrets — ironically, in the midst of what appears to be an attempt to subvert records laws to inhibit government transparency — came at a particularly inopportune time.

The Trump administration was preparing to invoke the “state secrets privilege.”

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Image from The Atlantic’s Signal chat story

Both the actions Goldberg observed in the “Houthi PC small group” and the publication of those messages are a part of another serious story involving national security: President Donald Trump’s invocation of the Alien Enemies Act.

Hours after Goldberg reported Monday that Secretary of State Marco Rubio’s messages were apparently among those sent in the group chat without his having realized that a reporter was in the chat, Rubio submitted a declaration backing the administration’s decision to invoke the “state secrets privilege” in the case challenging Trump’s use of the AEA to deport Venezuelans with no notice or process to a prison in El Salvador.

The state secrets privilege is a residual power from England picked up in the United States that allows the executive to shut down courts’ efforts to obtain evidence that the government asserts would force it to reveal “military [or] state secrets“ — with little room for pushback from the court. The privilege was regularly invoked during the George W. Bush administration to prevent what administration officials decided were too close of looks into its actions. As the ACLU stated at the time, “This once-rare tool is being used not to protect the nation from harm, but to cover up the government’s illegal actions and prevent further embarrassment.”

The Trump administration’s move to stack the rife-for-abuse state secrets privilege on top of its already challenged use of the AEA is alarming looking forward.

It is also, right now, a brazen attempt to stymie Chief Judge James Boasberg, a federal judge in D.C., in his effort to ascertain whether the administration violated his orders on March 15 when planes kept flying to El Salvador after he ordered planes still in the air to be turned around.

In backing the move, Rubio wrote:

Specifically — and, again, in a declaration signed on Monday — Rubio stated the following:

Oh?

I guess it’s understandable why Rubio might want to avoid scrutiny into the Trump administration’s moves the afternoon of March 15 — although we know much more about them because Rubio apparently never looked to see who he was disclosing information to (“to anyone,” indeed) on the group chat.

Image from The Atlantic’s Signal chat story

The group chat — including the person, MAR, who Goldberg believes to be Rubio — was busy congratulating one another about the bombing in Yemen at the very same time Boasberg was in court trying to get the Justice Department to answer questions about whether planes were taking off removing people from the country under Trump’s just-released AEA proclamation.

It’s also understandable — though by no means acceptable — why the government wouldn’t want to provide specific details about the flights. Another timeline, prepared by Adam Isacson and using publicly available information, suggests that the first two flights took off during that break.

As Boasberg wrote in his Monday opinion denying the government’s motion to vacate the temporary restraining orders in the AEA case:

It soon emerged that two planes were indeed likely in the air during the hearing. In other words, the Government knew as of 10:00 a.m. on March 15 that the Court would hold a hearing later that day, and the most reasonable inference is that it hustled people onto those planes in the hopes of evading an injunction or perhaps preventing them from requesting the habeas hearing to which the Government now acknowledges they are entitled.

Despite that — or, more likely, because of that — Attorney General Pam Bondi, with support from Rubio and Homeland Security Secretary Kristi Noem, hours later invoked the state secrets privilege to stop Boasberg from looking more closely into those flights.

This all, yet again, appears to be some combination of carelessness, lawlessness, and callousness — with deception and attacks in the aftermath.

Boasberg has asked the plaintiffs to provide any response to the government’s notice by March 31. With or without that information, though, Boasberg will move forward. He will proceed with hearing and ruling on the AEA challenge.

Stepping back and looking at what we’ve learned over the past two days, though, I would like to pose a possibility that would have seemed absolutely ridiculous — albeit, not to Goldberg — had I written it last week.

As the “Houthi PC small group” chat finished up its celebration of the bombing in Yemen, it is not inconceivable that another Signal group chat — including several of the same people — was discussing the AEA proclamation implementation, Boasberg’s break until 6 p.m., and whether they could get flights off the ground before Boasberg could rule.

But, unless a journalist was also accidentally added to that chat, we might never know.