On Contact: Daniel Hale, whistleblower

CH: Daniel Hale, a former intelligence analyst in the drone program for the Air Force who as a private contractor in 2013 leaked some 17 classified documents about drone strikes to the press, was sentenced on Tuesday to 45 months in prison.  The documents published by The Intercept exposed that between January 2012 and February 2013, US Special Operations airstrikes killed more than 200 people.  Of those, only 35 were the intended targets.  For one five-month period of the operation, according to the documents, nearly 90% of the people killed in airstrikes were not the intended targets.  The civilian dead usually innocent bystanders were routinely classified as “enemies killed in action.”  The Justice Department coerced Hale, who was deployed to Afghanistan in 2012, on March 31st to plead guilty to one count of violating the Espionage Act, a law passed in 1917 designed to prosecute those who passed on state secrets to a hostile power, not those who expose to the public government lies and crimes.  Hale admitted as part of the plea deal to retention and transmission of national security information and leaking 11 classified documents to a journalist.  If he had refused the plea deal, he could have spent 50 years in prison.  The sentencing of Hale is one more potentially mortal blow to the freedom of the press.  It follows in the wake of the prosecutions and imprisonment of other whistleblowers under the Espionage Act, including Chelsea Manning, Jeffrey Sterling, Thomas Drake, and John Kiriakou who spent two and a half years in prison for exposing the routine torture of suspects held in black sites.  Those charged under the act are treated as if they were spies.  They are barred from explaining motivations and intent to the court.  They cannot provide evidence to the court of the government lawlessness and war crimes they exposed.  The bipartisan onslaught against the press, Barack Obama used the Espionage Act eight times against whistleblowers more than all other previous administrations combined by criminalizing those within the system who seek to inform the public is ominous for our democracy.  It is effectively extinguishing all investigations into the inner workings of power.  Joining me to discuss Hale’s case is his lawyer Jesselyn Radack who has defended many prominent whistleblowers including Edward Snowden and journalists.  So, Jesselyn, let’s begin by talking about what he was charged with and I also want to talk a little bit about or have you talk a little bit about the structure of the court because all of these cases end up in the same court for a reason.

JR: Yes.  He was charged under five counts of the Espionage Act, a World War I era law that was meant to go after, as you pointed out, spies and saboteurs, not people who are sources for the media.  But it has been uniquely used to go after people who leaked or blew the whistle to the media, usually disclosing some of the biggest secrets and darkest history in our country.  So, it has been used against people who exposed torture, war crimes, warrantless surveillance, election fraud, and in this case, drone assassinations of innocent civilians.  So, that is what he was facing.  And then, the fact that the Espionage Act has been used as a bludgeon, I think is vividly illustrated by what happened yesterday after seven years of the government pursuing Daniel Hale, he got a three-year sentence.  And basically in my opinion, Daniel should not be in jail at all, he should get an award for what he’s done and what he’s been through.  But the fact that the government wanted 50 years on him and got three years just shows the utter over-prosecution--overcharging and over-prosecution in these cases.  And if you took Daniel’s calculus and you applied it to Assange, they’re going for a hundred seventy-five years against Assange, it would translate to just seven percent of what the government is actually seeking.

CH: Let’s talk about the court because the court where Daniel Hale was sentenced and he took a plea, and maybe you can talk about why he took a plea, is the same court that Julian Assange would end up in if his extradition is--the extradition request by the United States is successful.

JR: Yes.  So, Eastern District of Virginia is the most conservative court in the country.  It is in the backyard of the CIA and the NSA.  Most of the people who would be on a jury in the Eastern District of Virginia work for the government or certainly knows someone who works for the government because it’s a company town.  And it is been the court that somehow all of these cases had been routed to.  All of the cases under the Espionage Act have been uniquely--it’s forum shopping basically, but uniquely tried in this court because of how draconian it is.  And under the Espionage Act, you cannot get a fair trial.  I mean, first of all, you’re in this special court and then the case is just completely mired and locked down in secrecy.

CH: And speak about why he decided to take a plea or why you as his attorney urged him to take a plea rather than go to trial?

JR: Daniel is a young man and in taking a plea, it was clear.  If he pleaded to that one count which carried, you know, up to a 10-year sentence, at least he would have his life back afterwards.  The other reason we encouraged him to take a plea is because under the Espionage Act, you cannot raise a public interest defense.  You don’t have any defense.  It is a strict liability law.  So, it doesn’t matter if you made a disclosure to the press for fame, or profit, or revenge, or whether you did so because the government was lying about torture, or secret surveillance, or war crimes, or in this case, targeted assassination including of Americans.  So, that was the other reason people take pleas.  You cannot raise a defense under the Espionage Act.

CH: I want to talk before we get in to some of the details and I want to read some of his letter that he wrote to Judge O’Grady, which is very moving.  About just the health of the legal system itself, you were out front on this and as you have been on many cases, but all sorts of institution task with defending the rule of law and not only the ACLU, but PEN and others, and freedom of the press, but the law schools, I mean, where is the legal establishment?  What’s happen--what does this say about the legal system?

JR: I’ve been incredibly disappointed, especially for groups that were happy to glom on to Snowden and profit from what he went through.  But it’s been incredibly disappointing to me that civil liberties groups, human rights groups, and press freedom groups have been woefully silent.  Today, the ACLU put out a positive statement about how it was bad to go after leakers and Daniel Hale did a good thing.  But where have they been the last five years?  I did reach out to them when Daniel was indicted and they didn’t take the case and I had not said that publicly until now.  But yes, I reached out to them and for all of the donations and profiting they’ve been able to get from Snowden, I’m just very disappointed that Daniel was not embraced, much less supported and ended up being defended by public defenders with no support from people who should be as natural allies.

CH: And what about the deans of our law schools?  Where did you go to law school, Yale?  I mean, what are they--what are they doing?

JR: Heidi Kitrosser was trying to coordinate and I think they ended up submitting an amicus brief from academics.  Again, I, you know, that--Heidi was coordinating that and that is incredibly important, not only do law schools have a say, but they have the top legal talent and armies of students who would be willing to work on these cases if they chose to be more engaged.  And I feel like because the government prosecutes it as espionage, that has the effect of scaring off groups that would be natural allies, including schools where it’s like, “Oh, you’re--you know, you’re going to be supporting this guy who is responsible for the deaths of thousands of people,” and all the--you know, these scary tactics, but academia should be on the frontlines of this.

CH: I want to begin talking a little bit about his very powerful letter which people should read.  It’s really a moving example of, you know, what it--the moral cost of a person of conscience.  But he talks about the first time he witnesses a drone strike just a few days after he had been deployed in Afghanistan.  “Early that morning, before dawn, a group of men had gathered together in the mountain ranges of Patika Province around a campfire carrying weapons and brewing tea.  That they carried weapons with them would not have been considered out of the ordinary in a place I grew up, much less within the virtually lawless tribal territories outside the control of the Afghan authorities.  Except that among them was a suspected member of the Taliban, given away by the targeted cellphone device in his pocket.  As for the remaining individuals, to be armed of military age and sitting in the presence of an alleged enemy combatant was enough evidence to place them under suspicion as well.  Despite having peacefully assembled, posing no threat, the fate of the now tea drinking men had all but been fulfilled.  I could only look on as I sat by and watched through a computer monitor when a sudden, terrifying flurry of hellfire missiles came crashing down, splattering purple-colored crystal guts on the side of the morning mountain.”  This was something that he would witness repeatedly, but talk a little bit about the nature of the drone program and how it works.

JR: Right.  I represent a number of people who have been whistleblowers in the drone program.  And the moral injury so many of them suffer from, is because they’re doing remote warfare, it’s literally like playing a video game there in Virginia or Nevada and literally doing, you know, surveying people, like, following their lives for days and weeks on end, and then vaporizing them.  And the idea that that doesn’t cause any kind of trauma because there--we don’t have boots on the ground, they are not actually there holding a weapon fighting mano a mano with them doesn’t diminish the same PTSD, the same moral injury that a soldier would feel.  And most of the drone whistleblowers I represent, all have PTSD, most are getting veterans benefits for that PTSD.  Moral injury is a given and that guilt has led to a number of suicides including among my own clients and attempted suicides.

CH: Well, and we should be clear that Daniel admitted that he himself has been suicidal.

JR: Yes.

CH: When we come back, we’ll continue our conversation with Attorney Jesselyn Radack about the sentencing of the whistleblower Daniel Hale to 45 months in prison.  Welcome back to On Contact.  We continue our discussion about the whistleblower Daniel Hale with his lawyer Jesselyn Radack.  So, we were speaking before the break about the moral cost, the posttraumatic stress disorder that comes with vaporizing people day after day on a screen and he writes in his letter.  This is the letter that Daniel Hale wrote to the judge.  “Not a day goes by that I don’t question the justification for my actions.  By the rules of engagement, it may have been permissible 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 to continuously have laid waste for the next--laid in wait for the next opportunity to kill unsuspecting persons who more often than not are posing no danger to me or any other person at the time.  Never mind honorable, how could it be that any thinking person continued to believe that it was necessary for the protection of the United States of America to be in Afghanistan and killing people, not one of whom present was responsible for the September 11th attacks on our nation.  Notwithstanding in 2012, a full year after the demise of Osama bin Laden in Pakistan, I was part of killing misguided young men, who were but mere children on the day of 9/11.”  There’s two points he raises in the letter.  Let’s begin with the first.  He talks about the role of contractors and I think it’s two contractors to every one soldier or marine deployed.  So, address that issue first.

JR: After 9/11, one of the biggest beneficiaries of 9/11 was Halliburton and Leidos and government defense contractors completely benefited from this, basically profiteering off this war, which was going to be a never-ending funnel of money for a lot of people.  And you have to remember these contractors, it went all the way up.  Dick Cheney was on the board of Halliburton.  So, there are very powerful people in the US who were very cozy with the defense industry that was--that was feeding this war machine.  So, also the fact that the contractors were doing what soldiers often did, but they were being paid multiple, multiple times.  I mean, they were getting $70,000 a year, rather than $7,000.  I mean, they were making and receiving so much money and there was so much corruption within those contracts.  I used to do qui tam actions and the number of defense contractors who flourished from the war, it gave an incentive to keep the war going, to keep the money flowing.

CH: I want to raise the issue of war porn and the attitudes towards these killings.  He talks about a very disturbing incident where a car is fired upon and there are two young children, five and three years old in the vehicle.  And he writes, “A cadre of Afghan soldiers were sent to investigate where the car had stopped the following day.  It was there they found them placed,” these are the children, “in the dumpster nearby.  The eldest was found dead due to unspecified wounds caused by shrapnel that pierced her body.  Her younger sister was alive but severely dehydrated.  As my commanding officer relayed this information to us, she seemed to express disgust, not for the fact that we had errantly fired on a man and his family having killed one of his daughters, but for the suspected bomb maker having ordered his wife to dump the bodies of their daughters in the trash, so that the two of them could move quickly to escape across the border.  Now, whenever I encounter an individual who thinks that drone warfare is justified and reliably keeps America safe, I remember that time and ask myself, how could I possibly continue to believe that I am a good person, deserving of my life and the right to pursue happiness.”  So, it’s not only that he’s witnessing these events, which he calls war porn, people will--the people both within the military and the private contracting firm that he works for would pull up these videos and watch them as a form of entertainment, but it’s also the attitudes towards the killings.

JR: I think they almost had to do that to anesthetize themselves.  I’ve represented a number of these whistleblowers and they literally said they would watch these and they were all sniffing bath salts and using drugs.  We called it droning while drugging, that they would literally be consuming large quantities of alcohol and number of illegal drugs just to be able to do their job.  Drunk droning was a common thing, again, because it was so barbaric.  It was their way of anesthetizing themselves against the horrors that they were inflicting from a cold and a septic government room in Langley, Virginia or in, you know, Creech Air Base in Nevada.  So, that--the war porn part of it, I think, was what the government needed and the war porn part by the way, the government has shared this video footage with the makers of Hollywood movies like Zero Dark Thirty to try to glamorize the drone program.  I watch TV and every show, it portrays drones as this really great signature strike precision, amazing technology that would avoid having to have boots on the ground.  But it’s not precision and so many people, innocent people end up killed, not just the target.  And I think that was what was eating at Daniel because afterwards, they would get the actual after-action report that disclosed how many people they killed.  And usually, I mean it was numbers that like 1500 people in this strike, 500 in the strike, and they would get rewards based on that.  And a number of the people I represented were like, this is completely perverse that I am being rewarded because I helped kill 500 enemies in action or potential traders when children were being classified as traitors.  Oh, well, they’re TITs, terrorists in training or, oh, God, their parents just suck.  So, therefore it was justified that we kill them.  You know, again, this messaging is coming from the top, but it’s also I think what people had to tell themselves to fortify against the human cringe-worthy element of how do you live with yourself when you’re being an assassin.  You’re doing targeted assassination of people who have no connection to an actual ongoing conflict with the US.

CH: Right.  One former drone operator told The Guardian newspaper that they referred to children as fun-sized terrorists.

JR: Correct.

CH: He ends up--Daniel ends up joining the anti-war movement, peace movement after he leaves the military.  And he’s--in December or in November of 2013, he’s in Washington DC with Yemeni Faisal bin Ali Jaber who also spoke at the conference, who recounted the drone strike that killed his brother Salem bin Ali Jaber and their cousin Waleed who was a policeman.  Salem was an imam who actually opposed the radical jihadists.  And so, he’s listening to this and he writes, “I felt myself transported back in time to where I had been on that day in 2012 unbeknownst to Faisal and those of his village at the time was that they had not been the only ones watching Salem approach the jihadist in the car.  From Afghanistan, I and everyone on duty paused their work to witness the carnage that was about to unfold.  At the press of a button, from thousands of miles away, two Hellfire missiles screeched out of the sky, followed by two more.  Showing no signs of remorse, I, and those around me, clapped and cheered triumphantly.  In front of a speechless auditorium, Faisal wept.”

JR: Yes.  Faisal, his case--all of these cases, I mean, a number of people who’ve been drone--in the drone program have since done reparations work.  Some have gone to Afghanistan to try to meet with people and families of people who had been targeted, die--you know, either died from drone strikes or were completely maimed by what we’ve unleashed, and Faisal I think for Daniel, you know, he realized because Faisal of speaking out, just kind of the price that people were paying.  You know, I think he was uncomfortable when he was part of the apparatus and then afterwards, he has struggled with the--with the full burden on his heart--was done.  And again, the government minimizing drone deaths, lying about drone injuries and totally overstating the success of drones that there is a surgical precision involved and you just get the bad guy, and it’s very clean war because no one else gets hurt.  And the fact of the matter is, every time we drone a terrorist, it creates hundreds more terrorists.  I mean, every time we do this, I mean, they end up hating America.  I mean, it’s such a horrible cycle and Daniel saw that, Daniel recognized that, and so did a number of his other drone pilots, sensor operators, analyst, and have spoken out vociferously about this and paid a great personal price including in Daniel’s case being charged under the Espionage Act.  But I’ve had other drone clients where they were investigated criminally and the government walked up to the line of charging them under the Espionage Act and then for one reason or another didn’t, and mainly didn’t because they had gone public in the media.

CH: Right.  That was Jesselyn Radack, the lawyer for Daniel Hale who leaked documents about the US drone strike program and was sentenced to 45 months in prison for violating one count of the Espionage Act.