Terrorist Hoax-Wisconsin

Jake J. Brahm , a Wisconsin man arrested last fall in connection with prank Internet warnings of terrorist attacks against NFL stadiums was indicted Wednesday in New Jersey on a federal charge of conveying false information.^[1] He posted threats to detonate ''dirty bombs'' at seven stadiums that had NFL games on Oct. 22. ^[2]

The indictment said Brahm admitted posting the threat about 40 times on a Web site between September and Oct. 18. ^[3] He surrendered to federal authorities and appeared in court in Milwaukee on Oct. 20 and remains free on bond. ^[4]

One of the threats, dated Oct. 12, appeared on the Web site ''The Friend Society”, said that trucks would deliver radiological bombs to stadiums in Miami, Atlanta, Seattle, Houston, Cleveland, Oakland, Calif., and the New York City area, and that Osama bin Laden would claim responsibility. ^[5]

Authorities said his actions wasted homeland security efforts and likened them to the ''Internet version of yelling fire in a crowded theater.'' ^[6]

Brahm's lawyer, Walter A. Lesnevich, said the incident was ''greatly blown out of proportion and this was a stupid mistake by a kid that nobody took seriously.'' ^[7] The 22-year-old Brahm will plead not guilty, his lawyer said. ^[8]

Brahm could face up to five years in prison and a $250,000 fine if convicted on the single charge, conveying false information about an attack by a ''radiological dispersal device'' which is a national security crime created by the Intelligence Reform and Terrorism Prevention Act of 2004 (Act). ^[9]

Subtitle H of the Act, “Stop Terrorist and Military Hoaxes Act of 2004,” and 18 U.S.C § 1038 describes the illegal conduct Brahm is charged with. “Intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place.” In general, the criminal penalties are for any person who violates, or attempts or conspires to violate, subsection (a) shall be fined and shall sentenced to a term of imprisonment not more than 5 years.^[10] Brahm also faces civil action where he could be liable for reimbursement of the costs of the investigation. ^[11]

The charge is part of the Patriot Act and does not appear to have ever been examined by any federal court, Lesnevich said.^[12] He noted that the statute requires that the information at issue must ''reasonably have been believed'' to be criminal. ^[13]

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[1] Jeffrey Gold, Wauwatosa, 22-Year Old Indicted in Bomb Threats, Associated Press via TwinCity.com Pioneer Press, March 2, 2007.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] 18 U.S.C § 1038(a)(1)(A)(2004).
[11] Id. 1038 (b)(c)(1).
[12] Gold, supra note 1.
[13] Id.

Espionage Act-Virginia

Two former officials of the American Israel Public Affairs Committee (AIPAC) are being prosecuted under the Espionage Act (the Act) by way of the government's controversial theory that the Act could be used to prosecute the unauthorized receipt and transmittal of classified information by private citizens who are not engaged in espionage. ^[1] The trial of defendants Steven J. Rosen and Keith Weissman is scheduled to begin in June in the Eastern District of Virginia.^[2]

We have previously written about this case here.

As the case proceeds, the court continues to interpret the Espionage Act in a restrictive manner that places an increasing burden of proof on the prosecution and indicated what sorts of facts might tend to exculpate the defendants.^[3]

"To prove the alleged conspiracy to disclose national defense information to one not authorized to receive it, the government must prove among other things, that the defendants possessed all the culpable mental states that would be necessary for conviction under the Act, which include four distinct states of knowledge or belief.” ^[4]

In summary, prosecutors must show that the defendants knew the information involved was closely held and could harm the United States; that it could be used to the injury of the United States or to the advantage of a foreign nation; that the recipients of the information were not authorized to receive it; and that the defendants acted with knowledge that the disclosures were illegal and could harm national security.^[5]

But if the defense can show that U.S. government officials frequently disclosed confidential information to AIPAC for transmittal to the Israeli government, the court observed, that would mean the defendants could have believed such behavior was authorized.^[6]

If "the governments of the United States and Israel routinely used AIPAC as a diplomatic 'back channel' [to convey sensitive information]" that would be "potentially exculpatory" since it could "affect defendants' perception of the propriety of any disclosures made by or to them." ^[7]

The nature of the relationship between the governments of the U.S. and Israel may also have a bearing on the defendants' state of mind, the Judge wrote, in language that may foreshadow close scrutiny of U.S.-Israel relations at trial:
"The more specific the details of the alleged cooperation between the two governments, the more probative such cooperation becomes," Judge Ellis wrote. ^[8]

Similar reasoning would imply that if a news organization published classified information in the belief that doing so was beneficial to the United States, that would take it beyond the scope of the Espionage Act's prohibitions on unauthorized disclosure of national defense information.^[9]

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^[1] Steven Aftergood, Ruling in AIPAC Case Interprets Espionage Act Narrowly, Secrecy News, February 20, 2007.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.