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Drone whistleblower Daniel Hale, who pled guilty to violating the Espionage Act, was transferred from a jail in Virginia to a communication management unit (CMU) at United States Penitentiary Marion in southern Illinois.
He is the first person convicted for an unauthorized disclosure of information to the press to be incarcerated in a CMU, which the Bureau of Prisons (BOP) claims is for terrorists and “high-risk inmates.”
The decision may effectively cut him off from his entire support network, including friends and fellow whistleblowers who were by his side as federal prosecutors aggressively pursued charges against him.
Hale was a signals intelligence analyst in the U.S. Air Force. He was deployed to Afghanistan and stationed at Bagram Air Base. He later worked as a contractor for a firm known as Leidos. His contracting job gave him access to documents on the drone program, and he shared copies with journalist Jeremy Scahill.
He pled guilty to one count of violating the Espionage Act on March 31. The Justice Department had him jailed at the Alexandria Detention Center after he pled guilty, and he was sentenced to 45 months in prison on July 27.
After sentencing, Hale was transferred to Northern Neck Regional Jail, where he expected to be held for two or three weeks until a bed opened at Federal Medical Center Butner in North Carolina, a facility that could offer him some form of mental health treatment.
But he was held at Northern Neck until October 1, when the BOP transported him to Marion. He arrived on October 6.
Jesselyn Radack, who represented Hale as one of his lawyers, told the Dissenter, “It can only be seen as punitive that Daniel Hale, who has no criminal history and pled guilty to a nonviolent crime, got put in a secret, Kafkaesque, and isolated ‘terrorist unit’ with virtually no access to outsiders—or even other prisoners.”
“It’s another draconian move by the government to silence and punish whistleblowers,” Radack added.
On October 17, Radack shared that she had called the case management unit at Marion twice to seek some explanation but was routed to voicemail each time. “No one has returned my calls. It’s unprofessional, bordering on unconstitutional.”
“Our worst fear when we discovered that he was sent to Marion was that he would be placed at their notorious CMU,” declared Noor Mir, a close friend and member of his support team. “Daniel is a curious loving person, who craves contact with the outside world. It’s going to be really hard for him to not be able to call his support system.”
Mir spoke with Hale on October 14, however, Hale did not share any details about what happened between his arrival and their phone call. The support network believes he was placed in quarantine under COVID-19 protocol.
“We know he has a case manager, and that he has to submit contact lists and addresses for approval to mail, email, and call people,” Mir added. “He is able to go outside once a day and that makes him happy.”
According to Mir, Hale did not say anything more about the conditions at Marion—except that “it would be tough to not be able to talk” as much with his support team.
The Center for Constitutional Rights filed a federal lawsuit in 2010 against the Bureau of Prisons and officials involved in overseeing CMUs. They had oral argument before the D.C. Court of Appeals on October 18, where they urged the court to reverse a lower court’s decision and recognize the necessity of preventing due process violations.
“Since the BOP secretly opened its first communication management unit in 2006, it has used them as political prisons—to isolate individuals whose ideas the government considers dangerous,” declared Rachel Meeropol, a senior staff attorney for CCR who represents prisoners held in CMUs.”
Meeropol noted they were before the appeals court to argue “CMUs violate due process, as people sent to the unit are not told the true reason for their placement and have no meaningful way to rebut the factual basis for that placement.”
“The BOP has no right to inflict CMU-level isolation and restrictions on anyone without proper procedural protections but especially not an individual struggling with PTSD and depression, and in need of significant medical care,” Meeropol commented, when asked about Hale’s placement in a CMU.
There are CMUs at two federal prisons—USP Marion and Federal Correctional Institution Terre Haute in Indiana. The BOP’s Correctional Programs Division sets the policies for designating prisoners to CMUs, and the assistant director approves designations. The assistant director is currently Andre Matevousian.
Initially, the BOP did not develop “written procedures or criteria at all.” That meant prisoners like Yassin Aref, Kifah Jayyousi, and Daniel McGowan, all plaintiffs in CCR’s lawsuit, were subject to “haphazard and retaliatory” decisions to put them in a CMU.
CCR’s appeal, which was submitted in 2015 [PDF], outlined the differences between restrictions for general population and restrictions in a CMU.
“Most federal prisoners live in general population prison units, where they interact with a large population of fellow prisoners, receive 300 minutes of social telephone calls per month, and can enjoy contact visits with family and friends limited only by visiting hours and visiting room space—for up to 49 hours per month.”
“The BOP encourages these prisoners to use social telephone calls, visits, and letters to stay in touch with family and other loved-ones, due to the critical role such communication plays in a prisoner’s personal development and successful reentry back into society,” according to CCR.
However, prisoners in CMUs only interact with prisoners in the CMU, if they are permitted to interact with any prisoners. "All avenues of communication with the outside world are restricted and monitored. All CMU social visits are live-monitored by BOP staff and must occur in English, unless previously scheduled for simultaneous translation.”
Prisoners and their visitors “meet in partitioned rooms separated by thick plexiglass, speak over a telephone, and are forbidden from hugging or even touching hands.” They are only allowed two four-hour blocks of visitation per month, but regulation allows Marion to limit visitation to only four hours with “immediate family.”
There are currently no visits allowed due to COVID-19, which means Hale is limited to restricted phone calls.
CMU prisoners are allowed two scheduled 15-minute calls a week, but regulation permits Marion to restrict calls to three 15-minute calls per month with “immediate family only.” Calls are subject to the same strict monitoring as visits, and that monitoring is done by an FBI agent.
CIA whistleblower John Kiriakou faced a similar Espionage Act prosecution under President Barack Obama. He eventually pled guilty to violating the Intelligence Identities Protection Act in order to ensure he only went to prison for 30 months.
At his sentencing hearing, the judge, prosecutors, and his attorneys agreed Kiriakou would serve his sentence at the minimum security camp at Federal Correctional Institution Loretto in Pennsylvania. But when he arrived, Kiriakou learned the Justice Department had decided he was a “threat to public safety” and put him in the prison instead of the camp.
While in Loretto, Kiriakou wrote the “Letters from Loretto,” which were published by Firedoglake. They offered him a level of security in prison by ensuring people were watching how authorities handled him as a high-profile prisoner.
Kiriakou, along with NSA whistleblower Thomas Drake, have been mentors to Hale, offering him advice based on their experiences with Espionage Act prosecutions. They each talked with him regularly while he was jailed at Alexandria and Northern Neck. Both attended his sentencing hearing, where he delivered a 15-minute statement to the court.
When asked about Hale’s placement in a CMU, Kiriakou was in a state of disbelief. Hale was "supposed to be headed for Butner Low. He was recommended for Butner Low, and they put him in Marion Medium, CMU. For what reason?”
“How is he a danger to society? There are terrorists at Marion, like bonafide terrorists at Marion. And the purpose of putting him in Butner was because it’s a medical unit, and he needs medical and psychiatric treatment,” Kiriakou added.
Kiriakou last spoke to Hale in the final days of September, and he is certain the prison will not allow him on the list of approved contacts.
“Last time I spoke with him was on the 22nd of September,” Drake shared. “I expect to have trouble getting on his list while he is in the CMU at Marion.”
Lisa Ling, a former tech sergeant and whistleblower who worked on drone surveillance systems, is another close friend. She spoke to him just about every week after he was jailed in April.
“I was at his sentencing hearing, and now I may not be able to speak with him until he is released from prison on July 5, 2024,” Ling stated. “There is no telling what the requirements are for being on his call list. It’s not something they disclose to people.”
Ling added, “The man that told us strikes like the one in Kabul on August 29 are commonplace, and who told those erroneously placed on the No Fly List how lawyers could help them get off of the list, has now been silenced by the Bureau of Prisons. That's not justice.”
“These units are deleterious to anyone’s mental health. The military and the Veterans Affairs Department’s own study states social support is an integral part to healing from moral injury and post traumatic stress.” But CMUs are designed to prevent prisoners from having such social support.
As the lawsuit by CCR uncovered, “Prisoners are not told why they have been transferred to a CMU until after they arrive. Even then, the reasons they are provided are frequently vague, inaccurate, and/or completely false, and they are given erroneous—and even impossible— instructions for earning their way out of a CMU.”
It is likely Hale will remain cut off from the vast majority of his support network for his entire sentence, and his ability to weather the isolation will depend on how he manages to maintain his mental and physical health, which was already at a low point before he pled guilty.
UPDATE - October 23, 2021: Jesselyn Radack shared what she finally heard from one of Hale's case managers at Marion:
To which I added:
In the U.S. government's sentencing memo submitted in July, prosecutors argued for the harshest sentence ever for a whistleblower charged with violating the Espionage Act. They compared Hale's act of truth-telling to heroin dealing. The Orwellian effort to use punishment to make people believe what they said in attacking Hale was reasonable is why he is at Marion and not a medical prison.