Daniel Hale: The Case That Puts the Lie to the Government’s Claims about Defending Whistleblowers

By: Joe From The Gaslight Hour

During a press conference on August 9th, 2013, in the aftermath of the Snowden leaks, a reporter asked then-president Barack Obama if Snowden was a patriot. He responded, “no, I don’t think Mr. Snowden was a patriot.” After rambling for about a minute, he stated:

“So the fact is, is that Mr. Snowden has been charged with three felonies. If, in fact, he believes that what he did was right, then, like every American citizen, he can come here, appear before the court with a lawyer and make his case. If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order well before Mr. Snowden leaked this information that provided whistleblower protection to the intelligence community — for the first time. So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions¹.”

Five and a half years later, whistleblower Daniel Hale was arrested and charged under the Espionage Act. Unlike Snowden, he stayed in the country. Unfortunately, it didn’t do him any good. Despite the ex-president’s claims, he will not get the opportunity to appear before a court and make the case that what he did was right.

Who is Daniel Hale?

Before joining the military, Daniel Hale was on the edge of homelessness. In the documentary National Bird, Hale stated he had political reservations about joining but felt he had no choice due to his life situation². He served as a Language Analyst for the Air Force from July 2009 through July 2013. During this period, he was assigned to the NSA, and briefly worked as an intelligence analyst for JSOC while stationed at the Bagram Airfield in Afghanistan.

On April 29th, 2013, he met a journalist whom he spoke with over a few months and allegedly leaked documents to³. The indictment doesn’t name the journalist and outlet for reasons unknown, but from the details, it’s obviously Jeremy Scahill from The Intercept.

Hale sent a resume for “positions in the intelligence community” to the reporter on July 25th, 2013⁴. On November 17th, 2013, he appeared on a panel at a summit sponsored by Code Pink, an antiwar activism group⁵. In December 2013, he was hired by the defense contractor Leidos as a Political Geography Analyst⁶. On August 8th, 2014 he was arrested then released without charges. He also left or was fired from his contracting position around this time. In an interview soon after the arrest, he stated that he was the only remaining male member of his family to have never been in prison⁷. He was arrested again on May 9th, 2019, and this time received 5 charges. He is currently out on bond. On October 13, 2020, a car hit Hale on his motorcycle as he was driving to work. He suffered a broken ankle and many other more minor injuries⁸. His jury trial is currently scheduled for April 5th, 2021⁹.

What did he Allegedly Leak?

The documents leaked center around the United States’ drone program. Specifically, they provided insight into the find, fix, and finish (FFF) process, the chain of command that authorizes drone killings, and the jargon used around drone warfare. The indictment accuses Hale of printing 36 documents total, with 23 being unrelated to his work. Of those, 11 were secret or top secret. The documents he allegedly leaked formed the basis for a series of stories for The Intercept entitled The Drone Papers and later a book of essays credited to Scahill and other Intercept writers entitled The Assassination Complex.

Throughout the stories, an anonymous source, alleged by the government to be Hale, provides context to the documents. One concern of the source is that the definition of Enemies Killed in Action (EKIA) is overly broad. The documents reveal that any “military-age” men in the proximity of the target are presumed to be EKIAs unless proven otherwise. The source believes that the broad definition of this category is abused to obscure the actual civilian death count of the drone program. The source also expresses concern about the loose definition of “imminent threat” used by the intelligence community that authorizes a subject to be killed in a 60-day window. Outside of these specific terminological quibbles, the source criticizes the intelligence community in general for dehumanizing its targets through the use of excessive jargon¹⁰.

Another concern of the source is the abuse of signals intelligence or SIGINT, especially in theaters such as Yemen and Somalia where America has not officially authorized military force and has limited ground forces. The signals intelligence mainly consists of metadata from what are believed to be the targets’ cell phones¹¹. According to one of the leaked ISR studies, in Yemen and Somalia, 57% of the intelligence used to find targets was SIGINT, and it was almost all foreign-sourced¹². The source believes this reliance on foreign intelligence provides opportunities for deception. Perhaps ironically in hindsight, then ex-DNI head Micheal Flynn gave The Intercept a quote expressing similar concerns:

“I could get on the telephone from somewhere in Somalia, and I know I’m a high-value target, and say in some coded language, ‘The wedding is about to occur in the next 24 hours.’ That could put all of Europe and the United States on a high-level alert, and it may be just total bullshit. SIGINT is an easy system to fool and that’s why it has to be validated by other INTs — like HUMINT. You have to ensure that the person is actually there at that location because what you really intercepted was the phone¹³.”

The source discusses other weaknesses of the emphasis on SIGINT. For example, someone who doesn’t know their cell phone is being tracked may unwittingly give it to a friend or family member, resulting in the wrong target getting hit¹⁴.

The new focus on drone warfare also has implications on intelligence gathering. If a target is killed in a drone strike, he can no longer be tracked, thus he can no longer provide insight as to what networks he’s operating in¹⁵.

It should be kept in mind that these documents were written in the context of a turf war between advocates of traditional military intelligence with an emphasis on human sources, and advocates of the new emphasis on SIGINT and drone warfare.

What is he charged with?

Hale is charged with a count of Obtaining National Defense Information, a count of Retention and Transmission of National Defense Information, a count of Causing the Communication of National Defense Information, a count of Disclosure of Classified Communication Intelligence Information, and a count of Theft of Government Property¹⁶. The first three of these charges are from the Espionage Act, a controversial World War I era act that has long perturbed freedom of speech advocates. Julian Assange and Edward Snowden were charged under the same act.

One of the most pernicious aspects of these Espionage Act charges is that according to the courts, you can’t give a motives-based defense. The only thing that matters is if you knew it was illegal or not. In fact, the judge in Hale’s case has specifically declared Hale will not be able to present any motives-based defense to the jury. He also won’t be allowed to claim that the leaking of classified information is common and he’s being singled out¹⁷. This, in effect, takes away any potential for a whistleblower defense. The only defenses he is allowed to make are that he didn’t know it was illegal, or that he didn’t do it.

What about Obama’s executive order?

In the quote at the start of this article, Obama claimed that there was an executive order that would protect whistleblowers in the intelligence community. Unfortunately, this is true only in the narrowest sense. He signed an executive order that at least nominally protects whistleblowers in the intelligence community. However, if you read the fine print, the only people you’re allowed to report abuse to are your direct supervisor, the Director of National Intelligence, or the Inspector General.

What are the chances that there’s some sort of systematic abuse going on in your department and your supervisor isn’t in on it? I would guess they’re low. Officially, retaliation is verboten, but how easy will that be to enforce in the secretive intelligence community? The inspector general, if he is an ideal man in an ideal situation, may be some degree more useful, but what if what you want to report is unethical, but not necessarily illegal? Where do you go?

The executive order might seem nice on paper, but in practice, what is a whistleblower to do? If he goes to his supervisor, he’ll almost certainly achieve nothing. If he goes to the Inspector General or the DNI director, he’ll likely achieve nothing. If he goes to the public, he’ll be lucky if he ends up living out the rest of his years in Russia. Effectively, the intelligence community is asking us to trust it to police itself without public scrutiny. Intelligence community members have the right to blow the whistle as long as they’re not dumb enough to actually try it. And as the icing on the cake, the executive order doesn’t cover contractors, meaning neither Snowden nor Hale would be covered.

Jury Trial

Hale’s jury trial starts on April 5th, 2021. Despite the case’s relevance to other more prominent cases, such as Edward Snowden’s, and to the free press and whistleblowing in general, the Hale case has gotten minimal press coverage. If the allegations against Hale are true, this is a textbook case of whistleblowing: He took a minimal number of documents that were directly relevant to what he wished to blow the whistle on. He then filtered them through a professional media outlet. The Federal Government’s war on whistleblowers is a war on public accountability and by extension the public itself. We can’t hold intelligence agencies and the military accountable if we don’t know what they’re doing. We rely on whistleblowers to give us this information.

There’s a Gofundme for Daniel Hale’s living expenses because he was rendered unable to work after his motor accident. If you have cash to spare, consider pitching in.

Plugs

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Footnotes:

1. Remarks by the President in a Press Conference. (2013, August 9). Whitehouse.Gov. https://obamawhitehouse.archives.gov/the-press-office/2013/08/09/remarks-president-press-conference
2. Kennebeck, S. (2016, November 11). National Bird [Documentary].
3. United States of America v. Daniel Everette Hale Superseding Indictment. (2019).
4. Ibid
5. CODEPINK: 2013 Summit Program. (n.d.). Retrieved March 14, 2021, from http://codepinkarchive.org/article.php@id=6519.html archive
6. Ibid
7. Kennebeck, S. (2016, November 11). National Bird [Documentary].
8. Richman, T. (2020). United States of America v. Daniel Everette Hale Motion to Continue Trial Date.
9. O’Grady, L. (2020). United States of America v. Daniel Everette Hale Order.
10. Scahill, J. (2015, October 15). The Assasaination Complex. The Intercept. https://theintercept.com/drone-papers/the-assassination-complex/ archive
11. Scahill, J., & Greenwald, G. (2016). Death by Metadata. In The Assasination Complex.
12. ISR Task Force. (2013). Small Footprint Operations 2/13.
13. Currier, C., & Maass, P. (2015, October 15). Firing Blind: Critical intelligence failures and the limits of drone technology. The Intercept. https://theintercept.com/drone-papers/firing-blind/ archive
14. Scahill, J., & Greenwald, G. (2016). Death by Metadata. In The Assasination Complex.
15. Currier, C., & Maass, P. (2015, October 15). Firing Blind: Critical intelligence failures and the limits of drone technology. The Intercept. https://theintercept.com/drone-papers/firing-blind/ archive
16. United States of America v. Daniel Everette Hale Superseding Indictment. (2019).
17. O’Grady, L. (2020). United States of America v. Daniel Everette Hale Order.