On March 31, former National Security Agency (NSA) intelligence analyst Daniel Hale pleaded guilty to one count of violating the Espionage Act for leaking classified information about drone warfare. The Espionage Act has long been decried by whistleblower advocates as a draconian measure used to unfairly punish whistleblowers. Hale is the first individual to be prosecuted under the Espionage Act during the Biden administration. He faces up to 10 years in prison and is scheduled to be sentenced on July 13, according to a Washington Post article.
Hale served in the U.S. Air Force from 2009 to 2013 and later deployed to Afghanistan to work for the NSA as an intelligence analyst. After his service, Hale worked at the National Geospatial-Intelligence Agency (NGA) as a political geography analyst.
In his guilty plea, Hale admitted to downloading classified documents from the NGA and sending them to a reporter. The documents included information about “the protocol for ordering drone strikes and shed light on civilian casualties and internal military debates over the accuracy of intelligence,” according to the Washington Post. Although the court documents do not name the reporter to whom Hale gave information, the individual matches the description of Jeremy Scahill, “a founding editor of the Intercept,” the Post reports.
On March 31, Hale additionally admitted that he was responsible for anonymously writing a chapter in the reporter’s book, “The Assassination Complex: Inside the Government’s Secret Drone Warfare Program.” The anonymous chapter is called “Why I Leaked the Watchlist Documents.”
In a press release from the U.S. Department of Justice (DOJ), Raj Parekh, Acting U.S. Attorney for the Eastern District of Virginia stated that “[a]s an analyst for the Intelligence Community, Daniel Hale knowingly took highly classified documents and disclosed them without authorization, thereby violating his solemn obligations to our country.”
The Intercept’s Editor in Chief Betsy Reed commented on Hale’s guilty plea, stating: “These documents detailed a secret, unaccountable process for targeting and killing people around the world, including U.S. citizens, through drone strikes. They are of vital public importance, and activity related to their disclosure is protected by the First Amendment.” In January, Scahill published an article urging President Biden to drop Hale’s case and pardon another NSA whistleblower, Reality Winner.
Human rights attorney Jesselyn Radack, who has previously worked with Hale, said to the Post: “It’s unfortunate to see the Biden administration’s continued use of this antiquated, heavy-handed law to punish whistleblowers and journalistic sources.” In the article, Hale said he is now focusing on “taking care of and giving back to the people who supported me along the way.”
What is the Espionage Act?
The Espionage Act was passed in 1917 in the midst of World War I and prohibits using information related to U.S. defense to harm the U.S. or aid foreign governments. According to Stephen M. Kohn, whistleblower attorney at Kohn, Kohn, & Colapinto, Chairman of the Board of the National Whistleblower Center, and author of American Political Prisoners: Prosecutions Under the Espionage and Sedition Acts, “there are responsible mechanisms policing truly abusive leaks. The Espionage Act is not such a tool.”
In recent history, whistleblowers like Edward Snowden, Pentagon Papers whistleblower Daniel Ellsberg, and WikiLeaks whistleblowers Julian Assange and Chelsea Manning have all been charged under the Espionage Act. Former President Obama granted a commutation to Manning, but some whistleblowers like Reality Winner, who leaked information to the Intercept about Russian interference in the 2016 U.S. elections, have not been pardoned. Winner is still imprisoned, having received a 63-month prison sentence as part of her guilty plea.
The Espionage Act has come under scrutiny in recent years, as the Obama administration demonstrated a commitment to prosecuting individuals under the Espionage Act. During his presidency, eight individuals were charged under the Espionage Act, a number higher than all other presidential administrations. Eight individuals were also charged under the Trump administration including Reality Winner, who did not receive a pardon during his years in office.
Hale’s prosecution under the Espionage Act is a disappointing continuation of the precedent set by Presidents Obama and Trump. For whistleblowers and whistleblower advocates, this is a grim start to Biden’s presidency. Whistleblower advocates can only hope that under Biden’s leadership, whistleblowers will receive more respect and protection and the government will move away from heavy usage of the Espionage Act to prosecute whistleblowers and truth-tellers.
Read the DOJ press release here.