In the wake of its botched “righteous” drone strike that the United States now admits killed 10 civilians in Afghanistan, lawmakers on both sides of the aisle are raising questions about the horrific costs of the drone program. These are critically important questions to ask, with the highest possible stakes for people around the world. And yet, there is one person, largely left out of the conversation, who risked his well-being and freedom to bring to the public the information that informs this discussion. He is now just months into serving a nearly 4-year prison term for his whistleblowing.
Daniel Hale was sentenced this summer under the Espionage Act, a law that may have once been targeted at actual espionage but is now routinely used against national security whistleblowers who speak to U.S.-based journalists. As we have documented extensively, the Espionage Act has no "public interest" defense; even if someone reveals corruption, waste or illegal behavior on the part of the U.S. government, a defendant is barred from telling the jury about their motive or benefits of their actions.
In admitting that it killed civilians — rather than terrorists as initially claimed — the Pentagon specifically cited the excellent New York Times exposé on the incident that interviewed more than a half dozen people who were with the main victim that day. Of course, if the Times had instead gotten its information from a guilt-ridden military employee, rather than from on-the-ground interviews with witnesses, the paper would have likely faced angry denials, and that employee could have faced years in prison without the opportunity to justify themselves in court.
For at least five decades now, this injustice of the Espionage Act has been apparent, since Pentagon Papers whistleblower (and Freedom of the Press Foundation co-founder) Daniel Ellsberg was barred from offering prepared testimony about his motivation in exposing the myriad lies underpinning the Vietnam War. Every journalistic source who has been prosecuted under the Espionage Act since then has faced the same impossible hurdles in getting a fair trial, despite the clear public interest in their whistleblowing.
Hale's leaks, too, have indisputably served the public interest. The Intercept stories the government implied to be based on his leaks showed how drone strikes routinely killed civilians, even in the face of official denials. It was in the wake of reporting on documents he provided about the drone program that the Obama administration began disclosing information about inadvertent civilian deaths in drone strikes. (The Trump administration would later revoke the new transparency requirements.)
In response to the latest tragedy, senators and representatives have cited information about the ghastly number of inadvertent drone killings, but even these lawmakers are facing careful official denials based on selective declassification of information. Sen. Chris Murphy, for example, has faced official blowback for his suggestion that drone strikes hit the wrong target "maybe eight out of 10 times." In defending his claim, the U.S. senator from Connecticut cited his sources: "Since the government classifies data on the efficacy of drone strikes, the only full public data set is from a leak of the Haymaker drone campaign in Afghanistan," referring to the initial stories in The Intercept.
Hale and others like him provide the material that journalists communicate to the public to inform our understanding of these secret yet incredibly deadly and consequential programs. That role is always necessary, but never more so than when the government is able to pick and choose which information is made available for general consideration.
Although the Espionage Act does not allow for consideration of the public interest, Hale’s attorneys felt compelled to note his motivation in a filing with the court: “The facts regarding Mr. Hale’s motive are clear. He committed the offense to bring attention to what he believed to be immoral government conduct committed under the cloak of secrecy and contrary to public statements of then-President Obama regarding the alleged precision of the United States military’s drone program.”
Hale himself filed a handwritten document with the court speaking to his motivation for disclosing the drone records. “My conscience, once held at bay, came roaring back to life. At first, I tried to ignore it. … 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.” In the wake of another tragedy, the people’s need to know is clearer than ever.