Sentencing for former servicemember and intelligence contractor Daniel Hale is scheduled for July 27 after he pled guilty in March to one count of violating the Espionage Act of 1917 in connection with his alleged leaks of classified information about drone warfare to a journalist.
As in the Terry Albury case in 2019, the Reporters Committee filed a friend-of-the-court brief last week in advance of Hale’s sentencing to highlight the concern that, just as aggressive leak prosecutions can hinder newsgathering by causing sources to dry up, severe sentences in such cases can have the same effect.
This is the second brief filed by the Reporters Committee in the Hale matter, following a September 2019 submission regarding Hale’s motion to dismiss his indictment on First Amendment grounds.
That earlier brief surveyed the dramatic increase in journalistic source prosecutions since 2009. It also detailed growing evidence that this trend has chilled newsgathering, and how that chill calls into question the 1988 decision by the U.S. Court of Appeals for the Fourth Circuit that the Espionage Act, as applied to Samuel Loring Morison, the first journalistic source successfully convicted under the law, passed constitutional muster.
In United States v. Morison, two judges agreed that the conviction did not violate the First Amendment but only because they concluded that cases involving the disclosure of government waste or misconduct by leakers would be rare.
The brief filed last week makes three additional points specific to sentencing practices in leak cases.
First, a set of advisory sentencing ranges for federal offenses formulated by the U.S. Sentencing Commission, known as the sentencing guidelines, are ill-equipped to deal with journalistic sources prosecuted under the espionage laws. The guidelines were formulated in 1987, long before the post-2009 uptick, and therefore do not reflect the First Amendment interests at stake in leak prosecutions.
Second, the brief surveys how actual sentences in the post-2009 cases have been relatively light — and that severe sentences longer than 48 months are a significant minority. The brief also notes that the highest-ranking leakers have, historically, received the lightest sentences. (Gen. David Petraeus, the former director of the CIA under President Barack Obama, received probation, and Gen. James Cartwright, the former vice chairman of the Joint Chiefs of Staff, was pardoned by President Obama before sentencing.)
Finally, third, the brief draws upon scholarship by TPFP legal fellow Mailyn Fidler on “constitutional sentencing mitigation” in other First Amendment contexts. Fidler has examined how courts, in cases involving conscientious objectors during the Vietnam War and rescuers prosecuted under the Fugitive Slave Act, reduced sentences because of the First Amendment equities at play in those cases.
Hale, one of eight journalistic sources prosecuted under the Trump administration, faces a maximum of 10 years in prison for the count he pled to in March.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.