Drone whistleblower Daniel Hale was sentenced to 45 months in federal prison. It was a severe sentence but not the harshest sentence ever issued in an Espionage Act prosecution against a former United States government employee or contractor for the “unauthorized disclosure” of information.
The sentence was not what U.S. prosecutors demanded. They wanted Hale to go to prison for nine years, but it is likely Judge Liam O'Grady issued a lower sentence after considering his mental health problems.
Four Espionage Act offenses that prosecutors refused to drop after Hale pleaded guilty were dismissed with prejudice by the judge.
This case is the first major Espionage Act conviction under President Joe Biden.
Hale was a signals intelligence analyst in the U.S. Air Force, who was deployed to Afghanistan and stationed at Bagram Air Base. He helped track down the “geographic location of handset cellphone devices believed to be in the possession of so-called enemy combatants” so they could be targeted and killed by drones.
He later worked as a defense contractor for Leidos at the National Geospatial-Intelligence Agency (NGA), where he decided to release documents on the drone program to journalist Jeremy Scahill.
In a letter to Judge Liam O'Grady, Hale shared the trauma he experienced as a participant and witness to gruesome and violent drone strikes. He recalled the moment when colleagues at the NGA asked him to join them to watch "war porn" or archived footage of drone strikes. He could no longer suppress his conscience.
"My conscience, once held at bay, came roaring back to life. At first, I tried to ignore it. Wishing instead that someone, better placed than I, should come along to take this cup from me. But this, too, was folly," Hale stated. "Left to decide whether to act, I only could do that which I ought to do before God and my own conscience. The answer came to me, that to stop the cycle of violence, I ought to sacrifice my own life and not that of another person."
"So I contacted an investigative reporter with whom I had had an established prior relationship and told him that I had something the American people needed to know."
Hale built on that letter with a statement that lasted a little more than 15 minutes. He said, according to POLITICO's Josh Gerstein, "What I’m really here for is for having stolen something that was never mine to take: precious human life."
O'Grady responded, “You’re not facing prison for speaking out about the drone program injuring and killing innocent persons," and, "You could have been a whistleblower and garnered all this attention without leaking any of these documents, frankly.”
However, if Hale had spoken to the public about the content of the documents but never taken any of the information, he almost certainly would have still been the target of an Espionage Act prosecution.
Hale's defense asked the court for a sentence of 12 to 18 months and a "period of supervised release with mental health counseling," maintaining that was reasonable given prior sentences issued by the same court against former CIA officers John Kiriakou and Jeffrey Sterling. (Both were the target of Espionage Act prosecutions.)
Despite the fact that Hale pled guilty on March 31 to one of the five Espionage Act offenses he faced, prosecutors remained spiteful and unwilling to support anything less than a "significant sentence" to "deter" government employees or contractors from "using positions in the intelligence community for self-aggrandizement."
Prosecutors requested a sentence of at least 9 years because Hale only accepted what he did was legally wrong, not morally wrong, and refused to believe prosecutors' claims that the disclosure of documents risked "serious" or "exceptionally grave damage" to U.S. national security.
Court was cleared during the sentencing hearing so the U.S. government could further present secret evidence involving an alleged "internet compilation" distributed by the Islamic State in Iraq and Syria (ISIS) that referenced two of the documents. Prosecutors refused to declassify this in order to ensure transparency and fairness in the proceedings.
Harry Cooper, a former CIA executive expert for classification who trained the "agency's top-tiered executives," including the CIA director, contended the "internet compilation" supported his conclusions that the disclosure of documents did not pose "any substantial risk of harm."
"It suggests that the adversaries treated the documents as trophies rather than as something that would give a tactical advantage, given that publication would reduce to zero any tactical advantage that the documents might otherwise have given," Cooper added. "In short, an adversary who has gained a tactical advantage by receiving secret information would never publicize their possession of it."
“Shortly before trial," according to Hale's defense, "the government produced in discovery a document indicating that some or all of the years-long delay between the conclusion of the FBI’s investigation in this case and the decision to prosecute was because the prosecution team lacked the approval of superiors within DOJ."
Hale's home in Northern Virginia was raided on August 8, 2014, the last day he worked as a contractor. He was not immediately indicted, and the defense maintains that the Justice Department's National Security Division stopped their investigation in 2015.
With President Donald Trump in office and senior officials even more committed than President Barack Obama's administration to punishing people for leaks, they revived the case and charged Hale in May 2019.
Documents Hale revealed showed “more than 40 percent” of the people in the U.S. government’s database of terrorism suspects have “no recognized terrorist group affiliation.” The “watchlisting guidance” document he shared helped Muslim Americans clear their names and force the government to remove them from the No Fly List.
Additionally, he exposed how the U.S. president authorized targeted assassinations, calling attention to the “system for creating baseball cards and targeting packages” that is, according to Hale, based on “intelligence intercepts and a multi-layered system of fallible human interpretation.”
The U.S. military designated all people killed as “enemies killed in action” or EKIA, regardless off whether those killed were all targets.
“Unless evidence posthumously emerged to prove the males killed were not terrorists or ‘unlawful enemy combatants,’ EKIA remained their designation,” Hale shared. “[That process] is insane. But we’ve made ourselves comfortable with that. The intelligence community, JSOC, the CIA, and everybody that helps support and prop up these programs, they’re comfortable with that idea.”
Hale further described “official U.S. government statements minimizing the number of civilian casualties inflicted by drone strikes as ‘exaggerating at best, if not outright lies.’”