Leaker of drone secrets gets 45 months in prison

A former Air Force intelligence analyst was sentenced to nearly four years in prison Tuesday for leaking top-secret information about American drone operations abroad, including those aimed at locating and killing terror suspects.

Daniel Hale, 33, was sentenced by Judge Liam O’Grady to three years and nine months in prison during a hearing in U.S. District Court in Alexandria, Va.

Hale, who choked up at times as he delivered a 17-minute statement to the court, expressed no remorse about his disclosures but deep regret about having played a part in lethal U.S.-run drone operations in Afghanistan.

“What I’m really here for is for having stolen something that was never mine to take: precious human life,” Hale said.

O’Grady’s comments imposing the sentence amounted to something of a rebuttal to Hale’s claim. The judge said he was persuaded that Hale was motivated in part by genuine outrage over civilian casualties of U.S. drone operations, but the judge said Hale could have joined that debate without leaking classified information to The Intercept, an online news outlet.

“You’re not facing prison for speaking out about the drone program injuring and killing innocent persons. … A majority of Americans would have commended you for coming forward,” said O’Grady, an appointee of President George W. Bush. “You could have been a whistleblower and garnered all this attention without leaking any of these documents, frankly.”

Prosecutors had urged stiff punishment for Hale. They did not make a numerical recommendation, but urged that he receive “significantly” more than the longest sentence ever handed down for a leak to the media: the five-year, three-month prison sentence imposed on another Air Force veteran, Reality Winner, in 2018.

In a court filing Monday, prosecutors went even further, suggesting a sentence of more than nine years might be appropriate. Hale’s attorneys had proposed a sentence of 12 to 18 months for their client.

The hefty sentence the Biden Justice Department sought for Hale signals that, while the new administration’s appointees are eager to make peace with journalists and news outlets, prosecutors will continue to throw the book at the men and women who leak information to the media.

Indeed, the department seems eager to send a message that the unprecedented accommodations President Joe Biden and Attorney General Merrick Garland have ordered for journalists do not herald a new era of leniency for leakers.

“For those like Hale, who unilaterally decide to disclose classified information, the existence of criminal penalties that are theoretically harsh but practically lenient is not sufficient. Hale and other persons similarly situated seem to believe either that they will not be caught, or that the punishment will be de minimis,” prosecutors wrote. “A substantial sentence is needed also to account for Hale’s blatant disregard for the consequences of his conduct.”

As a trial in the case loomed in March, Hale took the unusual step of pleading guilty without any plea deal with the government. He admitted to violating the Espionage Act by giving more than 150 pages of records classified at the top-secret or secret level to a journalist. The recipient is referred to solely as “the reporter” in public court filings, but details about Hale’s activities and the records he leaked make clear that the reporter was Jeremy Scahill of The Intercept.

Defense attorneys and prosecutors used the same vague references during Tuesday’s hearing, although toward the end of the session O’Grady confirmed aloud that the leaks were to The Intercept.

Some of the documents Hale provided were featured in the news outlet’s stories in 2015, including an investigative series called “The Drone Papers.”

Hale is the third Intercept source to be imprisoned for leaking in recent years, following Winner’s case and one of an FBI agent in Minnesota, Terry Albury. He got four years in prison. Some allies of the sources have faulted the news organization for not doing enough to protect and obscure the identities of its sources.

O’Grady did not explicitly criticize The Intercept or Scahill, but suggested that Hale was, to some degree, taken advantage of by others.

“I think you were motivated because of your conscience, but I also think you were motivated because of a desire to please the journalists,” the judge said. “They had to know you were facing almost certain prosecution, but they went forward and did what they did.”

Betsy Reed, editor of The Intercept, said in a statement: “The Intercept will not comment on our sources. But whoever brought the documents in question to light undoubtedly served a noble public purpose. ... The court did reject the prosecution's extreme demands, but Hale‘s prison sentence is nonetheless another tragic example of how the government misuses the Espionage Act to punish alleged journalistic sources as spies, a practice that damages human rights, press freedom and democracy.“

O’Grady was also sharply critical of the Air Force for what he called its “inexcusable decision” to send Hale to Afghanistan and to assign him the potentially disturbing task of analyzing drone-strike video despite a history of serious mental health issues. The judge also slammed as “a horrible injustice” the “tepid” treatment Hale was offered after he returned from abroad.

In an 11-page letter Hale penned while in jail last week, he said he was traumatized by his experiences analyzing drone video feeds while in the Air Force in Afghanistan and by the cavalier attitude many involved took to numerous casualties the ensuing strikes caused among civilians and others not directly targeted.

“I came to believe that the policy of drone assassination was being used to mislead the public that it keep [sic] us safe,” Hale wrote. “By the rules of engagement, it may have been permissable [sic] 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…?”

While Hale and his lawyers portrayed him as driven by conscience and profound moral outrage, prosecutors argued that more base motives were at work.

“I’d totally get off on being a serious journalist who covers important issues in a critical way,” Hale wrote in chat messages, according to the government. “Most journalist [sic] are super out of shape and have no social life because they are so devoted…but I look up to them like rock stars…That’s what I’d like I guess, to be a journalist and speak truth to power, and have great sex all the time and make just enough to live but not too much that I become a part of the upper crust.”

Prosecutors said Hale was ill-suited to assess many of the documents he leaked because they related to programs he never worked on. That makes it less plausible he was acting out of principle, they argued.

“Hale was motivated not by transparency but by self-aggrandizement. A significant sentence therefore is necessary and appropriate,” prosecutors wrote.

The breadth of Hale’s disclosures has also won him praise in other quarters. In a friend-of-the-court brief, the Council on American-Islamic Relations said an unclassified document Hale leaked about no-fly-list procedures helped advance the group’s legal challenges and get at least eight U.S. citizens removed from no-fly or watchlists.

“The availability of this information enabled CAIR to present focused claims on behalf of its clients, whose lives had been disrupted by being placed on the lists,” CAIR’s attorneys wrote. “Mr. Hale’s disclosure catalyzed legal challenges to various watchlists across the country.”

The government’s pursuit of Hale included an unusual delay on the part of prosecutors. In 2014, Hale did a six-month stint working for defense contractor Leidos as a Chinese linguist for the National Geospatial Intelligence Agency. In August of that year, the FBI raided his home in Lorton, Va., and hauled off his computers.

However, Hale was not charged and arrested until 2019.

Hale’s attorneys suggested that the case was discarded by the Obama administration and revived under President Donald Trump, but prosecutors insisted in a filing Monday that was untrue.

Prosecutors said the number of U.S. intelligence agencies affected by Hale’s leaks “required extensive coordination within the government to proceed with charges.”

Calling Hale’s actions “premeditated,” Assistant U.S. Attorney Gordon Kromberg argued that Hale took the job at Leidos to gain access to classified information he could relay to reporters.

But Richman blasted that as an “alternative reality” and said Hale didn’t even expect to have access to so-called “high-side,” top-secret computers when he took the job translating Chinese place names for the spy-satellite agency. “They have no evidence he’s lying. It was not premeditated,” the defense lawyer said.

The public portion of Hale’s sentencing was delayed by more than an hour as the judge convened a closed-door classified session to discuss what he described as factual disputes that had arisen in sentencing filings, some of which were secret. When the closed-door session ended, the judge did not indicate what had transpired but said it had been established that nonbinding sentencing guidelines in Hale’s case called for him to receive between 87 months and 108 months in prison.

One hint of what happened at the secret court session may have come when the judge mentioned later that some of the information Hale leaked limited the U.S.’ “ability to collect intelligence in the Horn of Africa.” That reference prompted Kromberg to jump to his feet.

O’Grady looked surprised. “Is that classified? That general statement?” the judge said. The prosecutor then asked for a sidebar conference, where a so-called husher was used to prevent the public from hearing the discussion.

Kromberg didn’t offer many details publicly, but did note that documents Hale stole from NGA wound up in an ISIS publication on evading drone strikes. “I’m sure it was not Mr. Hale’s intention to support ISIS, but that’s what he did,” the prosecutor said.

Hale was free after he was indicted in 2019, but was arrested in April of this year for violating probation conditions. He has been in custody since and wore a dark green Alexandria jail jumpsuit and sneakers during Tuesday’s sentencing. When he entered the courtroom and when the public session resumed after the classified break, he waved at the dozens of supporters in the gallery, including many from the liberal activist group CodePink.

Also on hand to provide support were two men who faced serious leak charges in recent years: former CIA officer John Kiriakou, who received a 30-month sentence as part of a plea deal, and former National Security Agency analyst Tom Drake, who got a year’s probation and community service after the case against him essentially disintegrated.

As the session wrapped up, O’Grady said he expected Hale would be a positive influence once he gets out of prison.

“I certainly think that you should follow your passions and good things will come from it,” the judge said.