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Daniel Hale Sentencing

Film still of Daniel Hale from the feature documentary “National Bird.” Still: Torsten Lapp/Ten Forward Films

I had the honor this week of showing my support for drone whistleblower Daniel Hale by attending his sentencing at the federal courthouse in Alexandria, Virginia, the so-called “espionage court.” I’ve known Daniel for a few years, and I consider him a friend. I also believe that he’s a bona fide American hero.

Daniel was arrested in 2013 after telling Jeremy Scahill of The Intercept that, as a drone operator, he had participated in the murder of an unknown number of civilians who were later reported to be legitimate attacks on “enemy combatants.” He provided Scahill with some 150 pages of documents related to the drone program, appeared on stage with the Intercept co-founder, and sat for an interview in the highly-acclaimed documentary National Bird. The Justice Department’s National Security Division didn’t like that very much, and Daniel was charged with five counts of espionage.

The case dragged on for years. But over all those years, Daniel was consistent in his message. He said that the military and its drone policy had turned him into a mass murderer, a child killer who committed his crimes remotely from the comfort and safety of an air force base in Afghanistan.

Daniel told me a story, which he repeated in court, that sent chills up my spine and that humanized the drone program. He said that he was ordered to launch a strike on a car in Afghanistan being driven by a man and with a woman in the passenger’s seat. The man was rapidly approaching a US military roadblock, and Daniel was given the order to fire. Daniel could see that the woman kept turning around as if to speak to somebody in the back seat. He told his commanding officer that he believed somebody else was in the car. The commander reiterated the order to fire. Against his better judgment, Daniel fired a rocket at the car, killing the man and woman instantly. When a ground patrol unit finally got to the car, villagers had already taken the bodies of the man, the woman, and their five- and seven-year-old daughters, who had been in the back seat, and had thrown them into a garbage dumpster. One of the girls was barely alive and was severely wounded.

Daniel said that that incident, coupled with other similar strikes, caused him “moral injury” that he was unable to cope with. He sought therapy, was treated for Post-Traumatic Stress Disorder (PTSD), depression, and anxiety. He was unable to hold a job and finally found work as a dishwasher at a restaurant in Tennessee. Rather than worry about himself, however, he worried about all the other innocent civilians, including women, children, and the elderly, whom the US military was murdering every day. He resolved to tell his story and to reveal US military crimes, even if it cost him his freedom.

Sentencing was not such an easy proposition. Daniel decided, with the advice of his outstanding federal public defenders, that he would plead guilty to one count of espionage, with the hope that the Justice Department would dismiss the other four counts. Prosecutors said that they would decide at some later date whether to dismiss the other charges, depending on the severity of Daniel’s sentence. They asked Judge Liam O’Grady to sentence Daniel to nine years in federal prison. If he got the full nine, years, they would consider dropping the other charges. But that’s not the way things worked out in court on July 27.

The scene in the courtroom was tense and dramatic. Just minutes into the hearing, the prosecutors asked Judge O’Grady to clear the courtroom, saying that a letter that Daniel had written to the judge several days earlier, and which was covered in The Washington Post and The New York Times, demanded a classified response. The judge ordered all in attendance to leave, while the prosecutors argued that Daniel’s letter to the judge proved that he wasn’t remorseful for his actions. They said that he leaked the information to The Intercept to curry favor with Scahill and to ingratiate himself with other journalists. His guilty plea should be thrown out, they said. He should be forced to go to trial on all five counts.

Daniel, who is painfully introverted and has difficulty speaking before crowds, took to the podium and delivered one of the finest and most impassioned defenses of personal morality and ethics I have ever heard.

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The judge allowed us back into the courtroom an hour and a half later. He wouldn’t vacate the guilty plea, he said. And he believed that Daniel was indeed remorseful. The prosecutors acted as though this was a personal affront against them.

The two sides then began to argue about the eventual sentence. Prosecutors reiterated their position that Daniel deserved nine years in prison. They raised my own case, saying that they had made a mistake in 2012 when they agreed that I would get 30 months after blowing the whistle on the CIA’s torture program. “Kiriakou set a bad example,” the prosecutor said. “The sentence was too short, and then it led to a sentence that was too short for [Jeffrey] Sterling.” The prosecutor went on to say that a more appropriate sentence was the five years and four months that Reality Winner got for providing The Intercept with one over-classified document. Using that as a guideline, Daniel should get the full nine years.

Daniel’s attorneys jumped at the point. Kiriakou and Sterling, they said, were in the Eastern District of Virginia. Winner was in the Northern District of Georgia. If the prosecution wanted to bring outside cases into the mix, they should talk about David Petraeus. Petraeus, the former CIA director, had provided some of the most highly-classified information in existence to his adulterous girlfriend and was only charged with a misdemeanor in the Western District of North Carolina. He was eventually sentenced to 18 months of unsupervised probation. The prosecution conceded the point.

Judge O’Grady then asked if Daniel had anything to say before he passed sentence. Daniel, who is painfully introverted and has difficulty speaking before crowds, took to the podium and delivered one of the finest and most impassioned defenses of personal morality and ethics I have ever heard. He told the judge how his ancestor Nathan Hale had been caught by the British and sentenced to death for espionage. His final words, as every schoolchild knows, were “I only regret that I have but one life to lose for my country.” Daniel said that he took strength from his ancestor. And like his ancestor, Daniel was a patriot. It was his love of country that compelled him to speak out against the government’s illegal activities. He was sorry he broke the law, he said. But he could not condone murder.

The judge was finally ready to pass sentence. He began by saying that Daniel had broken the law and he had to be punished for it. But he believed that Daniel broke that law because of his conscience. The government’s contention that he wanted to ingratiate himself with journalists was absurd. Consequently, he decided to sentence Daniel to 45 months in prison. The courtroom remained silent, as most attendees didn’t fully understand the implications of the judge’s decision. But I was sitting next to NSA whistleblower Tom Drake. We understood and we smiled at each other.

Forty-five months is not actually 45 months. First, with good behavior time off, that cuts the sentence to 39 months. With three months already served, that cuts it to 36 months. The judge ordered that Daniel be placed in the Bureau of Prisons’ Residential Drug and Alcohol Program, which takes another 12 months off the sentence, bringing it to 24 months. And finally, Daniel is eligible for six months of halfway house time or home confinement, putting the actual sentence at 18 months.

There was one final blow against the government. After passing sentence, Judge O’Grady asked if there was any other business. Daniel’s attorneys said that there was – the issue of four more espionage charges. They said the fact that the government had not yet moved forward on the other charges was a violation of Daniel’s constitutional right to a speedy trial. Why waste any more of the court’s time and the taxpayers’ money, they asked. The judge agreed. He dismissed all of the remaining charges with prejudice. Daniel Hale’s nightmare is finally coming to an end.

Through all of this drama, there was one thing that the prosecutor said that has stuck in my mind. It probably sounded profound to some, but to me it sounded as though the Justice Department still has no idea how to deal with national security whistleblowers. The prosecutor told the judge repeatedly that Daniel’s sentence had to be sufficiently severe that it serves as a deterrent to other people in the intelligence community who may be considering speaking with the press. Whistleblowers must be stopped before they become whistleblowers.


What he didn’t and doesn’t understand is that no sentence will serve as a deterrent. An Israeli researcher found that whistleblowers have an unusually well-defined sense of right and wrong – far more highly developed than the population at large. Where there is injustice, they will speak out. Where there is waste, fraud, abuse, or illegality, they will speak out. They’re not afraid of the Justice Department. They’re not afraid of espionage charges. They’re willing to risk long sentences. Right is right. That’s Daniel Hale.

John Kiriakou