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Government Moves To Block Alleged Drone Whistleblower’s Defense In Espionage Act Case

The United States government has moved to block Daniel Hale, a former U.S. Air Force language analyst, from presenting any evidence that he had “good motives” when he allegedly disclosed documents to a reporter that exposed a targeted assassination program involving armed drones.

Yet, while the U.S. government hopes to ensure Hale cannot put on a whistleblower defense during his trial, Hale’s defense attorneys have directly challenged the constitutionality of the Espionage Act, arguing [PDF] it violates the First Amendment. They also assert that the government is selectively and vindictively prosecuting Hale for his alleged act of dissent.

Hale was indicted on five counts on May 9. Three of the charges allege he violated the Espionage Act. One charge alleges he disclosed “communications intelligence” without authorization. The fifth charge alleges he stole “government property.”

In October 2015, The Intercept published a “cache of secret documents detailing the inner workings of the U.S. military’s assassination program in Afghanistan, Yemen, and Somalia.” The media organization said the documents were provided by a whistleblower and offered “unprecedented glimpse into [President Barack] Obama’s drone wars.” They were called “The Drone Papers.”

These are the documents that the government accuses Hale of disclosing without proper authorization to the public.

Justice Department prosecutors approach the leak prosecution without any regard for the civilians killed by U.S. drones in the past several years. They disregard, for example, how the CIA’s “worst kept secret” is that the agency operates drones in countries like Pakistan, Somalia, and Yemen.

“The defense likely will want to argue that, even if the defendant engaged in the conduct alleged, he had good reasons to leak the documents at issue and is being unfairly prosecuted under criminal statutes that carry significant penalties,” the government declares in their motion to the court [PDF]. “Any such arguments, however, would be entirely improper.”

Prosecutors add, “Any attempt to inject a necessity, whistleblower, or similar motive for the defendant’s conduct is irrelevant.”

Attorneys for Hale counter with the argument that the legislative history of the Espionage Act was “absolutely clear.” It was drafted with the “confidence that it would never be used to criminalize actions undertaken to inform the American public.”

In 1950, as the World War I-era law was amended, Attorney General J. Howard McGrath assured the Senate that “the history and application of the existing espionage statutes […] together with the integrity of the three branches of the government which enact, enforce, and apply the law, would indicate that nobody other than a spy, saboteur, or other person who would weaken the internal security of the nation need have any fear of prosecution under either existing law or the provisions of this bill.”

“History shows [the drafters] all thought it incomprehensible that the [Espionage] Act could or would ever be applied to anyone but spies and saboteurs (i.e., those who acted with an unambiguously anti-American animus),” a defense motion argues. “As a result, the provisions of the Act at issue here do not require proof of nefarious intent or proof that the information disclosed actually risked any substantial harm.”

Indeed, the government very plainly states—in their motion to foreclose a whistleblower defense—that the Espionage Act provision Hale is charged with violating “does not require the government to prove the defendant intended to harm the United States.”

Hale’s attorneys point out that the arguments of prosecutors suggest the Justice Department no longer believes the press is “beyond the reach of the statute.” One of the counts requires a court to decide whether journalist Jeremy Scahill violated the Espionage Act when he reported on the documents.

“Specifically, count one charges that Mr. Hale obtained the information with reason to believe that another person – presumably the reporter with whom he allegedly shared it – would possess or communicate the information in violation of the Espionage Act. If that is the government’s theory, it will require this court to instruct a jury that a journalist’s possession or publication of defense information is a crime.”

The government goes further and asserts that “documents” are different than “information” in case law surrounding Espionage Act cases. Since the government charged Hale with the unauthorized disclosure of documents, they contend, “The government does not have to prove that the defendant had reason to believe his conduct could harm the United States or aid a foreign nation.”

Essentially, the prosecutors reinforce a chief concern of Hale’s attorneys, which is that the Justice Department is inappropriately applying a law to a universe of cases to stamp out dissent to the press.

“For decades, the Executive Branch was faithful to the [Espionage] Act’s original intent, charging only spies and saboteurs even though the Act’s nearly limitless language permits so much more,” the motion states. “But now that the Act is used regularly against those who leak for no purpose other than informing their fellow citizens about their own government, its chilling effect is fatal to its continued viability.”

There were only three prosecutions under the Espionage Act for the first 75 years that were “premised” on “leaks.” However, since 2009, there have been 18 prosecutions of media sources, according to Hale’s attorneys.

President Barack Obama’s administration set the record for more leak prosecutions under the Espionage Act than all previous U.S. presidents combined, and the Obama Justice Department’s novel interpretations of the Espionage Act set the stage for President Donald Trump to launch a prosecution against Hale, as well as WikiLeaks founder Julian Assange, who is the first journalist to be charged with violating this particular law.

During former CIA officer Jeffrey Sterling’s leak prosecution in 2011, the government similarly moved to prevent a whistleblower defense and any argument that Sterling was selectively prosecuted because high-ranking government officials leak to the press quite often.

In 2013, military prosecutors were successful in convincing Army Colonel Denise Lind, the judge in Chelsea Manning’s court-martial, that evidence about Manning’s “good faith” motives was irrelevant to the charges stemming from her disclosures to WikiLeaks.

The government goes all-in on criminalizing whistleblowing in their argument to the court. “Evidence of whistleblowing efforts” does not diminish whether Hale willfully disclosed the information in violation of the Espionage Act.

“If anything, it proves that his actions were knowing and willful. In other words, if the defendant had a specific reason for retaining and transmitting the documents, then his retention and transmission could not have been due to accident, mistake, or negligence,” the government contends.

For reasons that are unclear, the U.S. government waited nearly three and a half years to indict Hale. Defense attorneys believe the reasons for charging Hale will prove he is being charged for his alleged political speech and the alleged exercise of his First Amendment right to criticize his government.

Defense attorneys asked the court to order the government to disclose details related to prosecutorial decisions, as well as “instances where government employees leaked information similar to that at issue in this case but were not prosecuted.”

A motion to dismiss further suggests, “The prosecutor in this case may be a ‘stalking horse’ for those higher up in the government, who have demonstrated animus toward a vigorous free press and those who would aid journalists in doing their job.”

Like prior leak prosecutions, the government vehemently opposes the defense’s plans to try and uncover why Hale was charged when other officials have not been charged for speaking favorably of the drone program to news media or the public.

“The introduction of such evidence or arguments would force mini-trials over the similarities and differences between the present prosecution and every other specific instance of leaked classified information,” according to prosecutors.

Prosecutors also moved to foreclose efforts to challenge the alleged misclassification of information. They believe the defense has no standing to question the decisions of classification authorities, including whether the information disclosed was classified properly under Executive Order 13526, which Obama issued in 2009.

The executive order particularly states, “In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to conceal violations of law, inefficiency, or administrative error” or “prevent embarrassment to a person, organization, or agency.”

Crucially, the Espionage Act does not technically apply to classified information but rather to “national defense information,” which is an exceedingly amorphous category of secrets that can be arbitrarily determined by officials and the prosecutors who pursue people over their disclosure.

Prosecutors assert in Hale’s case that a jury could find “certain government information, while not classified, did constitute [national defense information]. Classified information therefore is only a potentially supportive factor, but not a determinative factor, in determining whether information relates to, or is connected to, the national defense.”

In other words, prosecutors indicate a person who discloses unclassified information could be guilty of violating the Espionage Act if that information related to the national defense, whatever that may mean.

Such an argument points to the concerns of Hale’s defense attorneys about vagueness and overbreadth in how cases are prosecuted. That violates the First Amendment.

“To give one example, could a reporter, or a “leaker,” really be imprisoned for discussing a not-yet-unclassified assessment of an entity that has not existed for decades, like the Viet Cong? The statutes, even to the extent they have been judicially narrowed, suggest they could be, while First Amendment jurisprudence suggests they could not,” Hale’s attorneys assert.

Altogether, prosecutors maintain the “imprecise language and ambiguous reach” of the Espionage Act creates a chilling effect on the free speech rights of government employees as well as journalists, who have a constitutionally protected duty to inform the public.

The government’s theories around what the Espionage Act may cover constantly expand. It already is a proven tool for punishing whistleblowers. But now Hale’s case raises the specter of additional people being targeted by the law, unless the courts start taking the concerns of defense attorneys more seriously.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."