On March 31, former servicemember and intelligence analyst Daniel Hale changed his plea in an Espionage Act case to guilty on one count of retention and transmission of national defense information. Hale, previously employed by the National Security Agency and as a defense contractor assigned to the National Geospatial-Intelligence Agency, was arrested and charged in May 2019 with leaking classified government documents about drone warfare to a reporter, including 11 documents labeled “Secret” or “Top Secret.”
Hale’s plea brings an end to one of the few Espionage Act cases involving an alleged journalistic source in recent years that looked like it might go to trial, which had been scheduled for early April. Government prosecutions of “leakers” under the Espionage Act have been on the rise over the past decade — a trend of significant concern for press freedom advocates. As the Reporters Committee has argued, using the Espionage Act to prosecute journalists’ sources as spies chills newsgathering and discourages sources from coming forward with information in the public interest. This chilling effect is particularly troubling when such information relates to national security, where government secrecy is at its height.
Notably, in his motion to dismiss, which the court denied, Hale’s lawyers argued that the Espionage Act, especially given the recent uptick in cases against sources, violates the First Amendment. (Another alleged leaker charged with Espionage Act violations, Joshua Schulte, also unsuccessfully raised First Amendment claims.) The government, in turn, sought to exclude evidence about Hale’s motive from the proceedings, a request the court eventually granted. Courts have — controversially — excluded evidence about motive in Espionage Act cases before, including, notably, in Daniel Ellsberg’s trial for leaking the Pentagon Papers.
Hale’s sentencing is scheduled for July 13. Although the court excluded arguments about motive from the guilt stage of the proceedings, there may still be room to consider motive at sentencing as a mitigating factor. Doing so would allow treating those who disclosed information to the media more leniently than those who disclose information as part of actual espionage.
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.