Janine Jackson interviewed Defending Rights & Dissent’s Chip Gibbons about drone whistleblower Daniel Hale for the April 9, 2021, episode of CounterSpin. This is a lightly edited transcript.
Daniel Hale
Janine Jackson: Do you care about the US military’s increasing use of drone warfare, because of the disastrous impact on its targets and/or the predictable blowback from the conflicts it foments? Do you care about the US public’s ability to know what’s being done in our name and have a hope of understanding the repercussions? Do you care about what happens to those people who take it on themselves to reveal things that could not be revealed any other way except by somebody who was inside and knew them to be true? And about the ability of the press to publish those truths so the public can take informed action?
If any of that matters to you, you care about the case of Daniel Hale, whether or not you’ve heard his name.
Joining us now to fill us in is researcher and journalist Chip Gibbons. He’s policy director of the group Defending Rights & Dissent. He joins us by phone from Washington, DC. Welcome back to CounterSpin, Chip Gibbons.
Chip Gibbons: Thank you for having me back.
JJ: We’re really, I think, starting from zero for a lot of folks on this story. There hasn’t been much out there about it. Daniel Hale’s case has meaning beyond its particulars, but the particulars matter, too. So who is Hale, and what did he do?
CG: Sure. And you know, I would not blame anyone for not having heard of Daniel Hale. There’s been almost a complete media blackout on this topic.
So Daniel Hale was a US Air Force veteran from, I believe, 2008 to 2013. After he left the US Air Force, he became a contractor who did some military contracting and intelligence contracting, but, most importantly, he became very outspoken about the use of US drone warfare. He appeared at book events with Jeremy Scahill; he appears in the movie National Bird, which is an award-winning film about drone whistleblowers, talking both about their own attempts to expose the drone program, as well as the moral injury that they suffered within the military. And in the course of the filming of this movie, National Bird, Daniel Hale’s house is raided as part of an FBI search, in connection to an Espionage Act investigation.
Intercept (10/15/15)
As many of your listeners may know, the Espionage Act was what they used to go after Daniel Ellsberg, Chelsea Manning, Edward Snowden. Espionage Act prosecutions of whistleblowers were extremely rare, all but unheard of, until the Obama administration, when they really normalized the practice.
So this is 2014, and it’s not 100% clear in the film what’s going on; obviously, Daniel Hale doesn’t give a lot of information, other than that he’s talked to his lawyer and he thinks he’s being targeted for his political activism. And the film comes out in 2016. But in 2015, the Intercept publishes something called “The Drone Papers.” The Drone Papers were a secret cache of documents about the US drone program, given to the Intercept by an anonymous source. So now we’re one year out from the raid against Mr. Hale.
Then in 2019–and you will now note we’re five years on—Daniel Hale was indicted under four counts under the Espionage Act and one count of theft of government property. And if you read the indictment, it accuses him of taking classified information about the drone program and giving it to a journalist. That journalist has not been named in any of the court proceedings, but it’s very abundantly clearly a reference to Jeremy Scahill of the Intercept, who wrote a book called Dirty Wars: The World Is a Battlefield, as well as being the journalist who published the “Drone Papers.”
Being a whistleblower indicted under the Espionage Act, it’s almost impossible, if not impossible, to mount a defense. I’ve been talking with some of the whistleblowers who have been supporting Daniel Hale, and they all have particularly absurd stories from their trials. Thomas Drake, NSA whistleblower, was telling me about how his attorney couldn’t use the words “fiber optics” during the trial, because the existence of fiber optics was considered “classified,” or they couldn’t use the word “newspaper,” you know, these secret words.
JJ: Oh my gosh!
Daniel Ellsberg
CG: And the biggest thing is that whistleblowers are gagged from using the word “whistleblower,” gagged from mentioning the First Amendment, but they’re also gagged from talking about their story.
The first one of these cases was the Daniel Ellsberg case. And Daniel Ellsberg very much wanted to take the stand and tell the jury how being on the inside of the US national security state and looking at the deception, looking at the lies, reading the Pentagon Papers—this secret history of the Vietnam War that showed the government was lying—how that led him to give it to the media.
And his lawyer asked him on the stand, “Why did you leak the Pentagon Papers?”
And the judge instantaneously intervened, saying, “You’re not allowed to answer that question.”
And the lawyer says to the judge, “I’ve never heard of a case, in all my years of practicing law, where a defendant cannot explain themselves.”
And the judge says, “Well, you’re hearing of one now.”
And that’s been basically the prototype for these cases since then.
Daniel Hale’s attorneys tried to raise a selective prosecution defense to have the charges dismissed, a vindictive prosecution motion for dismissal, as well as a First Amendment one. And with the selective prosecution, they argued that people in official Washington leak all the time, right? The biggest leaker of US government secrets is the US government itself.
JJ: Right, right.
CG: And people leak information about the drone program; they give it to these sorts of gullible journalists, who then turn around and tell the public how great our international program of extrajudicial executions and assassinations are.
So Hale’s crime, it isn’t leaking information about the drone program; let’s all be honest: It’s exposing the government as having lied about the drone program. But that was rejected; his First Amendment claims were rejected, and the government put forward a series of motions preemptively asking the judge to bar the defense from mentioning the defendant’s good motives—“good motives” in quotation marks is in their brief—because motives, good or not, don’t matter.
They asked the judge to bar them from challenging the classification of documents, or raising a misclassification defense, both on the grounds that classification is the sole purview of the Executive Branch—and therefore, a judge cannot rule a document’s been misclassified, and the defense attorney cannot challenge a classification—as well as the claim that the Espionage Act does not require information to be properly classified.
There’s a huge problem, even inspector generals within the government talk about it, of overclassification, right? You’re not supposed to be able to just, in theory at least, classify any document willy-nilly, and you’re certainly not supposed to be classifying documents because you want to stifle public discourse, and because you want to conceal information that’s embarrassing to the US government. But we know that happens in practice.
JJ: Yeah.
CG: So the prosecution, knowing that would come up, said, “Can’t raise that defense.”
And the most bizarre and just outlandish motion that I read—and I spoke to two different Espionage Act defendants and, unfortunately, neither one of them was surprised by this one—they said that the defense was barred from arguing that an “alternative perpetrator committed the charged crime unless they could present nonspeculative evidence of that individual’s connection to the particular reporter, and knowledge of access to the documents and issues.”
So at this point, I think everyone listening is thinking, what kind of defense could Daniel Hale present? And the answer is basically none at all. So last week, he pled guilty to one count, under the Espionage Act, of unlawful retention and transmission of “national defense information.”
Now, the government—and I’ve spoken to lawyers who have said in all their years of practicing law, they’ve never heard of this—the government has not dismissed the remaining four charges, and has merely asked the trial to be postponed until he’s sentenced on this charge. Meaning that if the government thinks the judge gives too lenient a sentence, they’re basically reserving the right to go and have a trial on the remaining charges.
Now, whether or not they’d get away with that, it’s not clear to me. The defense pushed back on that during the change of plea hearing, and a couple of legal experts I’ve spoken to think they might not be able to get away with that. But it’s just an unprecedented move here, just across the board.
And this brings us to the question: What did Daniel Hale give to the world? I mean, we hear “Espionage Act,” that sounds like a spy or a saboteur furnishing military secrets to a hostile enemy, troop movements to Al Qaeda or Putin, right? But no, he gave information to the Intercept about the US drone program that gave us an unprecedented look into the “kill chain,” right, the bureaucratic process by which people are basically chosen for summary execution by the president, showing they were culling data from the “terror watchlist.”
They were making these targeting packages called “baseball cards,” where they would reduce all the information about a potential target to a baseball card. And then the president would get this, and could decide whether or not we should murder this person or not. And if he says yes, the military has 60 days to do this.
These practices are oftentimes called “targeted killings.” I would remind people, or maybe inform them for the first time: The Israeli government had a program of targeted killings, and the Bush administration criticized and rebuked the Israeli government, claiming that program violated international law. When the Obama administration was looking for legal justifications for its own targeted killings, it cited Israeli court rulings and Israeli actions. So we went from, “The US government is officially opposed to Israeli targeted killings as a violation of international law. These are extrajudicial executions; these are assassinations,” to “Look, the Israelis have shown us that it’s legal to do this,” which is just mind boggling to me.
JJ: Yeah.
CG: And they call them “targeted killings,” but guess what: 90% of the people—per the Drone Papers—who were killed in US airstrikes, in one five-month period, were not the intended target. And when the US government kills unintended targets, it labels them, by default, “enemies killed in action,” unless information emerges after their murder, after their death, showing that they were not an “enemy combatant” or a terrorist. And these papers showed how these decisions were being made, in part using very faulty technology in signals intelligence and metadata.
And the anonymous source, who I guess we all know now is Hale, [says], you have to have a lot of faith in technology to do this; and I personally have seen faulty intelligence. And it goes back to what Hale was talking about in the movie National Bird, how he had “no way of knowing” if people engaged in the targeting of the “kill or capture program” were civilians or not, because it was just impossible to know.
And Hale said, once again anonymously, back in “The Drone Papers”:
This outrageous explosion of watchlisting—of monitoring people and racking and stacking them on lists, assigning them numbers, assigning them “baseball cards,” assigning them death sentences without notice, on a worldwide battlefield—it was, from the very first instance, wrong.
So this is purely, purely assisting a journalist in newsgathering, and giving to the American people information about what its government is doing. And I know the enemies of whistleblowers always prattle on about, “Oh, they should have gone through official channels, official channels, official channels.” You know, those official channels are not quite that good; but in a case like a global assassination program that’s US policy, I mean, the check for that is called our democratic process. It’s us, as a nation, deciding whether or not we think this is what we should be doing. But from the Pentagon Papers to the Drone Papers, the US government has sought to conceal the realities of its warmaking, and take from us our ability to make democratic choices about what our government is doing.
Chip Gibbons: “From the Pentagon Papers to the Drone Papers, the US government has sought to conceal the realities of its warmaking, and take from us our ability to make democratic choices about what our government is doing.”
And the first use of the Espionage Act, during World War I, was putting opponents of World War I in jail for comments that would now be considered protected speech. Infamously, Eugene Debs was charged under this, and the comment that got him in trouble, the illegal comment, was something along the lines of, “Wars have always been fought by the servant class and started by the master class. If war be right, let the people decide.”
And since the creation of the Espionage Act, that is what the US government has been working against, this idea that if war be right, let the US people decide for themselves about the war: first by, during World War I, putting opponents of the war in jail, and then, since the Pentagon Papers and the Drone Papers and the WikiLeaks revelations, concealing information from the US public about what their government is doing in their name, and then putting in jail anybody who tells the people what’s going on, so they could possibly decide for themselves if war be right.
JJ: I came across, in looking into this, and coverage of drone warfare generally, a piece called “The Moral Case for Drones,” from the New York Times in 2012, that was about what it called drones’ “seductive” promise of “precision killing and perfect safety for operators.” In other words, how specifically the superior ability to avoid civilian casualties made drones better than any other method of warfare, better at “identifying the terrorist and avoiding collateral damage,” as one source had it.
So Hale’s revelations about, for example, how any “military-aged male” in the vicinity of a target was deemed “legitimate”—his revelations drive a stake right through that moral posturing about how it’s OK because they kill fewer civilians than any other method of warfare.
And Kevin Gosztola, one of the few reporters who’s actually talked about this, adds that another of Hale’s revelations was that “nearly half of the people on the US government’s widely shared database of terrorist suspects are not connected to any known terrorist group.”
So these are the kinds of things that, as you’ve explained, would bring on this intense, unto absurd, shroud of silence that is being charged under the Espionage Act; this is the content that the government is so interested for us not to know. And I would add that one of the few pieces—and I’m going to ask you about media in a second—one of the few pieces that I saw, from the AP, cited Jameel Jaffer, who’s now at Columbia, who for years at the ACLU was filing FOIAs on the drone program, and he said he just wasn’t able to get that much information going through these official channels. So in other words, Hale’s disclosures were emphatically important, and were revelations that could not be obtained otherwise.
So I want to ask you about what you make of the virtual silence of media on the story. But I wanted to ask you, quickly, and I think I know what you’ll say, it sounds as though you think the Espionage Act should just be off the books?
CG: Yeah, if not off the books, it should be very much amended. The organization I work with, Defending Rights & Dissent, has worked with WHISPeR, the Whistleblower and Source Protection project at ExposeFacts, who represented Hale, Drake, Snowden.
We did congressional advocacy about what we thought were the deficiencies of the Espionage Act, and we put forward some, I think, fairly modest reform. What constitutes a modest reform of the Espionage Act on Capitol Hill is quite a different story, right? I mean, I just suggested—you know, consider this crazy idea, Janine—that in order to get a conviction for espionage, the US government has to prove the specific intent to aid a foreign power or injure the national security of the United States (i.e., the definition of actual espionage, “true espionage”).
That didn’t meet with many takers. Tulsi Gabbard did introduce a bill that was supported by Defending Rights & Dissent, and supported by Daniel Ellsberg, that would have made that a requirement.
And Ro Khanna and Ron Wyden did another bill that would not have helped Daniel Hale, but would make it so you could not prosecute journalists under the Espionage Act, because, right now—a lot of us have been saying for years; you’ve heard me say this—this war on journalists’ sources is eventually a war on journalists, and then with the indictment of Julian Assange, this is clearly a war on journalists.
JJ: Right.
Rule of Law (3/18/21)
CG: And the official parties usually say, “No, no, no, that’s not true.”
There’s this ex-NSA lawyer, I believe his name is George Croner, who has been running around the internet with journal articles and tweets, being like, “the Assange case is criticized because it opens the door to prosecute journalists. I think this is great, and this is why the Assange case is great,” and has commented publicly that it’s great they got a conviction against Daniel Hale, by browbeating him into a plea, by robbing him of his constitutional right to a defense, but it’s really a shame they didn’t prosecute the journalist too, and that the Assange indictment, this ex-NSA lawyer said, gives us the precedent to go after the journalist, who in this case is not being named in the court documents, but we all know is Jeremy Scahill, a fantastic journalist, you know, who has done good reporting on the US national security state, going back to being one of the few people in the late ’90s to cover the impacts of the US sanctions on Iraq, where we were causing mass death amongst children, and covering those airstrikes, and then being critical of the Iraq War, and then exposing Blackwater, and now drone strikes.
I mean, this is an ex-NSA lawyer who wants him in jail. And it’s only going to get worse, because there hasn’t been that much of a pushback.
JJ: And that’s just where I wanted to bring us, finally. The virtual silence of major media, we’ve seen it, not just silence, but that then is complicity with folks like this ex-NSA lawyer who, you know… it’s so self-defeating on the part of journalists. And I know media are not monolithic, and there has been coverage, certainly, in independent media. And, of course, journalism is at the center of the story, in terms of the Intercept carrying Hale’s revelations.
I always am going to have a problem with mainstream journalists who will not go to bat for the rights of whistleblowers, but will dust off their shelf for the awards that they expect to win based on those revelations. I just don’t understand it.
Let me ask you, finally, what you make of the media’s role here. It’s so central to the First Amendment, it’s so central to the democratic process, and yet there’s no spotlight.
CG: With Assange, I thought that was really terrible media coverage. But pretty much every major newspaper editorial board, when push came to shove, came out and opposed the extradition request and indictment against Julian Assange, saying that was a threat to the press.
Many newspapers—New York Times, I think Boston Globe—editorialized on behalf of Snowden getting a pardon or clemency. The Washington Post, which got a Pulitzer Prize for Snowden’s revelations, did not; they thought Snowden belonged in jail for being their source—perhaps a first in the world of newspaper editorial boards, I don’t know about that one.
Jacobin (4/10/21)
But with Hale, besides the Washington Post coverage; besides Kevin Gosztola, who is a hero for his coverage of these issues; and besides a piece I’m working on for Jacobin right now, which hopefully will be out by the time people are listening to this, there’s just been a real silence.
And I think part of it is the complicity in the drone program, that the media has propagandized for drones. I think part of it is the Trump era, and that this doesn’t necessarily go with some of the narratives people want to tell in the media about Trump. On the one hand, they were so concerned with whistleblowers and free press when Trump was attacking the mainstream media. But they also would paint Trump as being insufficiently bellicose or militaristic, which inside the Beltway is the worst crime you can commit, and which was far from true. He escalated drone strikes, he escalated air wars, and there was silence on that. And then I also don’t think it helps that so much other news has happened, with the impeachment and then with Covid, at the time this story was released.
JJ: I understand that Daniel Hale’s sentencing is coming up in July, so there is an opportunity to get more attention to the case in the meantime, and hopefully we will see that.
CG: Yeah, and RightsandDiseent.org is hosting an action calling for leniency for Daniel Hale.
Obviously, I don’t think Daniel Hale should have to require leniency; he should not have been indicted or convicted. But we’re in the situation we are in now, and I think seeing an outpouring of support from people who say, what Hale did was in the public interest, or the interest of our democracy; please, please show leniency and take that into account; he’s a whistleblower, not a spy—I think we need that outpouring of voices.
JJ: We’ve been speaking with Chip Gibbons, policy director at Defending Rights & Dissent. They’re online at RightsandDissent.org. Chip Gibbons, thank you so much for joining us this week on CounterSpin.
CG: Thank you for having me back.
