The Emergence of a Whistleblower

Hale was convicted under the Espionage Act. His crime consisted of taking classified information about the US drone program and giving it to journalist Jeremy Scahill. This information later formed the basis for a series of articles published by the Intercept called “The Drone Papers.”

Thanks to Hale’s disclosures, the public learned that, during one five-month period in Afghanistan, 90 percent of those killed by US air strikes were not the intended targets. In addition to classified documents about the United States’ global assassination program, Hale also disclosed unclassified (but still not publicly available) guidelines for the US terror watch list. As a direct result, individuals were able to successfully challenge their placement on the No Fly List.

In the run-up to the sentencing, Hale wrote a handwritten letter to the judge explaining his actions. (I also submitted a letter to the judge, at the request of Hale’s lawyers.) Similarly, during the hearing itself, Hale, often on the verge of tears, delivered a seventeen-minute speech to the court. Both Hale’s letter and his speech were deeply moving portraits of how his conscience brought him to take action against the United States’ global assassination program.

As Hale explained, the first part of his life was particularly rough. In 2009, facing homelessness, he joined the US military. He had opposed US wars, but he believed that newly elected president Barack Obama was winding them down. Besides, he had few choices given his economic realities. The military discovered Hale had a knack for learning languages and taught him Mandarin.

In 2012, at age twenty-four, Hale was sent to Bagram Air Base in Afghanistan to work as a signal intelligence analyst. Bagram was a key part of the “kill chain,” and Hale’s role was to track the location of cell phones believed to belong to “enemy combatants.” This locating of phones allowed the US government to track their possessor with drones, which were equipped with cameras and could be used to surveil their day-to-day life. Drones, however, are used to not only watch but also to kill.

Just days after his arrival, Hale witnessed for the first time what that looked like. A suspected member of the Taliban had gathered with others in the early morning to drink tea. His companions were armed, but, as Hale pointed out, carrying arms was uncommon neither for people where he grew up nor in the regions of Afghanistan outside of government control. However, because they were military-age, armed, and in the vicinity of the United States’ target, that subjected them to guilt by association sufficient for a summary death sentence.

As Hale explained,

Despite having peacefully assembled, posing no threat, the fate of the now-tea-drinking men had all but been fulfilled. I could only look on as I sat by and watched through a computer monitor when a sudden, terrifying flurry of hellfire missiles came crashing down, splattering purple-colored crystal guts on the side of the morning mountain.

That memory stuck with Hale. He says not a day went by without him questioning his justifications:

By the rules of engagement, it may have been permissible for me to have helped to kill those men — whose language I did not speak, customs I did not understand, and crimes I could not identify — in the gruesome manner that I did. Watch them die. But how could it be considered honorable of me to continuously have laid in wait for the next opportunity to kill unsuspecting persons, who, more often than not, are posing no danger to me or any other person at the time?

Another incident haunted Hale. He had been surveilling a car bomb maker when his superiors became concerned their subject was fleeing to Pakistan. It was their last chance to kill him.

As the bomb maker was driving, the decision was made to fire on his car. It was a cloudy day. The missile missed the car. Hale watched in real time as the man pulled over and got out. But someone else exited the car as well: a woman, his wife.

Hale had no idea their target wasn’t alone. She pulled something out of the car and left it behind as they sped off, but Hale couldn’t make out what it was from the drone camera before it moved on. Days later, Hale learned what was left behind: her two daughters, age five and three. The five-year-old had died from shrapnel wounds after the missile attack on the car; the younger sibling was severely dehydrated but still alive. Hale recounts that his commanding officer had expressed disgust at this incident, but “not for the fact that we had errantly fired on a man and his family, having killed one of his daughters.”

When reflecting on this incident, which Hale recalls whenever someone justifies drone warfare, he asks himself, “How could I possibly continue to believe that I am a good person, deserving of my life and the right to pursue happiness?”

A Crisis of Conscience

Barack Obama had joked about killing the Jonas Brothers with drones at a 2010 White House Correspondents’ Dinner. But by May 2013, mounting controversy about the program, especially after the killing of a US citizen, meant that Obama was forced to make substantive remarks. As it happened, Hale was at a farewell party for those soldiers who, like him, would soon be returning home and leaving the Air Force. Yet Hale was “transfixed” by Obama on television.

Obama assured Americans the drone program was fine, as “near-certainty” was taken that civilians would not be killed in a strike, and only someone who was an “imminent threat” would be targeted with lethal force. Hale “came to believe that the policy of drone assassination was being used to mislead the public that it keeps us safe,” and that his “participation in the drone program [had] been deeply wrong.”

And what was all of this for? The US government claims it was to keep us safe from terrorism, but as Hale watched the war unfold in Afghanistan, he “became increasingly aware that the war had very little to do with preventing terror from coming into the United States and a lot more to do with protecting the profits of weapons manufacturers and so-called defense contractors.” As Hale wrote in his letter to the judge:

It did not matter whether it was, as I had seen, an Afghan farmer blown in half, yet miraculously conscious and pointlessly trying to scoop his insides off the ground, or whether it was an American-flag-draped coffin lowered into Arlington National Cemetery to the sound of a twenty-one-gun salute. Bang, bang, bang. Both serve to justify the easy flow of capital at the cost of blood — theirs and ours. When I think about this, I am grief-stricken and ashamed of myself of the things that I’ve done to support it.

Hale soon became involved with antiwar activism, speaking alongside Scahill at an event and at the activist group CODEPINK’s Drone Summit. Present at the summit were family members of those killed by US drones. Hale apologized to them.

One speaker, Fazil bin Ali Jaber, traveled all the way from Yemen to tell of the drone strike that killed his brother and cousin. As Fazil recounted the story, Hale sat in the audience. On the day of that strike, Hale had been on duty in Afghanistan, where he watched the entire ordeal unfold on a computer screen.

Hale hated the idea of “taking advantage of my military background to land a cushy desk job,” but he couldn’t say no to a job offer from defense contractor Leidos. Soon, despite his public antiwar activism, Hale was hired at the National Geospatial-Intelligence Agency (NGA), adding data to government maps of China. Socializing after work, Hale’s coworkers elected to watch videos of lethal drone strikes — for entertainment. As Hale recounted, such viewing of “war porn” had also been commonplace among soldiers in Afghanistan.

Hale was rocked by a crisis of conscience, finally concluding that “to stop the cycle of violence, I ought to sacrifice my own life and not that of another person.” It was then that Hale contacted an investigative reporter he had a relationship with — presumably Scahill — and “told him that I had something the American people needed to know.”

At the sentencing, Hale further expounded on his views. He explained to the judge that he believed killing was always wrong, hence his opposition to the death penalty, but that “killing the defenseless was especially wrong.” In response to claims his disclosures harmed national security, he brought up the fact that Pulse nightclub shooter Omar Mateen cited the killing of innocents by US bombings on a phone call to police. While nothing could justify his murderous actions, it was clear that terrorism spawned as a result of US policy also weighed heavy on Hale’s conscious.

Hale made it clear to the judge exactly why he was in the docket.

I am here because I stole something that was never mine to take: precious human life. I couldn’t keep living in a world in which people pretend that things weren’t happening that were. Please, your honor, forgive me for taking papers instead of human lives.

A Farce of a Trial

The proceedings against Daniel Hale were farcical from start to finish. Had he gone to trial, Hale would have been prohibited from challenging the classification of the documents he disclosed, mentioning how common leaks were and how rarely they were prosecuted, bringing up his “good motives” for disclosing the documents, or even asserting that someone else could have committed the crime unless he could name a specific person with access to the documents and a relationship with the journalist who published them.

After being stripped of any meaningful chance for a defense, Hale pled guilty to one of the five counts against him. He did so without any promise of a plea bargain. Usually under such circumstances, prosecutors would move to dismiss the remaining charges. Yet in Hale’s case, the prosecution refused to do so, meaning they could potentially force Hale to go to trial on the remaining charges if the judge’s sentence failed to satiate their vindictiveness (the remaining charges were dismissed with prejudice after sentencing). The prosecution was hell-bent on making an example out of Hale by throwing the book at him, to dissuade other future, potential whistleblowers.

Hale was initially released on his recognizance pending sentencing. But one day, his probation officer summoned him for what Hale thought was a routine visit. Instead, Hale was taken into custody. A court-appointed therapist had expressed concern about Hale’s mental health, putting Hale in violation of the terms of his supervised release. Out of supposed concern for Hale’s mental well-being, he was locked away — in solitary confinement. Given what we know about the deleterious effects of solitary confinement on mental health, this was a particularly perverse move.

On top of that, according to the defense’s sentencing memo, the William G. Truesdale Adult Detention Center where Hale was held did not have counseling services. So Hale’s detention, supposedly for his mental well-being, disrupted his ability to access counseling.

In the run-up to sentencing, Hale’s defense sought to force the government to disclose whether they actually had evidence that Hale’s drone disclosures caused harm to soldiers or anyone else. The government chafed at this request, arguing that they were not required to show someone actually harmed national security to prove someone violated the Espionage Act. The defense responded that, while it may not be required to garner a conviction, it is relevant in determining a sentence. One does not have to physically harm someone to be guilty of assault, but whether an assault caused grave physical injury would certainly factor into what sentence was given.

The judge ruled for the prosecution. Although the prosecution successfully fought not to turn over evidence of harm to the defense, they argued that Hale’s refusal to accept that his actions caused “exceptionally grave damage” justified imposing a longer sentence.

The prosecution made an all-out effort to demonize Hale. Hale had always insisted he was not the story, fearing that a focus on him would distract from victims of drone attacks. His friends had to stage an intervention to get him to see how his case had ramifications for other whistleblowers. While Hale appears in Sonia Kennebeck’s documentary National Bird, he was working as a dishwasher and living in relative obscurity at the time of his 2019 arrest.

Yet according to prosecutors, Hale’s actions were driven by “vanity.” Hale viewed journalists as “rock stars.” In the prosecution’s version of events, Hale decided to obtain employment at the NGA with the intent of stealing documents, in order to impress a journalist and further his own nonexistent journalism career. (As the defense pointed out, given that he was working on spatial mapping of China, Hale had no idea he would have access to a computer containing classified information about the US drone program, thus making the premeditation theory implausible.) The prosecution also, in one document, compared Hale to a heroin dealer who argued his distribution of narcotics aided the community. During the sentencing hearing, the prosecution flat-out asserted that Hale had aided ISIS.

The prosecution — led by Gordon Kromberg, who has gained infamy for being at the center of a number of controversial national security prosecutions, making troubling remarks about Muslim Americans, and referring to the occupied Palestinian West Bank as “Judea and Samaria” — sought a sentence of at least nine years. This would have been the longest sentence ever given for disclosing information to the media by a civilian court. If served in full, it would have been the longest sentence ever served for that crime.

The prosecution’s justification rested not just on their demonization of Hale or the fact that he believed his actions were “legally wrong, but morally right.” They made clear that this draconian sentence was needed because past prosecutions had failed to deter future whistleblowers. They wanted no more people of conscience to come forward.

This demonization of whistleblowers is a standard prosecution trick. Oftentimes, it works. Yet the judge in Hale’s case surprised many with some of his remarks. When sentencing Hale, he started off by noting the outpouring of letters he received, especially those from veterans and journalists. Judge O’Grady acknowledged that many people believe Hale to be courageous and conscientious, then affirmed his own feelings about that belief. O’Grady’s statements seemed to accept Hale was a whistleblower and that the drone program was resulting in unnecessary civilian deaths.

Yet, the judge argued, Hale could have been a whistleblower without giving documents to a journalist. In the judge’s mind, it was the giving of documents, not the speaking out against the drone war, that was a crime and the reason why Hale was here.

The Espionage Act makes no distinction between spies who steal information for hostile foreign governments and government employees who share information of public interest with the press, journalists, or even members of the public. It broadly criminalizes the unauthorized sharing or retention of “national defense information.”

The letter of the law requires an individual to have “reason to believe” their actions would harm national security, but the courts have virtually read this requirement out of the law. Because the government says the release of classified information could harm national security, the legal reasoning goes, any government employee who releases classified information has reason to believe their actions will be harmful.

The government is not required to prove a whistleblower intended to harm national security, nor is it even required to prove such harm occurred. In fact, the government argues — and the courts agree — that the documents do not even need to have been properly classified. Therefore, any giving of classified information to a journalist violates the Espionage Act. Given that the crime itself is the disclosure, the contents of the documents, the public interests served by their release, and the whistleblower’s motives for their disclosure are irrelevant. Juries are barred from hearing about them.

The Espionage Act was passed during World War I. According to human rights attorney and Espionage Act expert Carey Shenkman, the first two thousand people prosecuted under the act were prosecuted for simply opposing the war. Later Supreme Court rulings would make such prosecutions impossible, but the Espionage Act would continue to loom large over free speech.

During the McCarthy era, the act was again amended. As support flagged for his floundering conspiracy theories about traitors in the State Department, Senator Joseph McCarthy singled out the case of a failed attempt to prosecute a State Department official for allegedly giving information to a leftist foreign affairs journal that was widely read in government. The offense Hale pled guilty to was the product of these amendments. During the Vietnam War, it was used in an attempted prosecution of Daniel Ellsberg and Anthony Russo for liberating the Pentagon Papers.

For decades, the law sat mostly dormant — until the “war on terror.” As the US government journeyed to the dark side, embracing surveillance, extrajudicial executions, torture, and the types of war crimes that are the hallmarks of protracted military occupations, conscientious whistleblowers came forward to the press. The Espionage Act became the go-to weapon to silence them.

Daniel Hale’s prosecution was fundamentally political. All prosecutions of whistleblowers under the Espionage Act are. Leaking of government secrets, especially to influence policy, is “a routine aspect of government life.” Government workers leak information all the time, and the vast majority of them are not punished anywhere near as severely as Hale. His crime was not leaking secrets, but the specific secrets he leaked: exposing the official US proclamations about the drone program as lies.

In spite of a judge’s assertion to the contrary, it is precisely Hale’s opposition to the US drone program that has condemned him to three years and nine months in a federal prison. Hale had seen firsthand what it means to kill by remote control. And he watched our government lie about it — lie that the killing was sanitary, that it was precise, that it kept us safe. Could anything justify such senseless violence? The US government justifies it by citing national security concerns, but, as Hale came to learn, a more central motivation was to line the pockets of weapons manufacturers. It was murder for profit.

Hale was willing to risk his own freedom to tell us this story. And this is what the government seeks to conceal from us by turning the Espionage Act into a cudgel against truth-tellers.

Hale’s revelations did not damage national security. His prosecution, however — like the wars and cult of secrecy it was intended to protect — damaged our democracy.