THE DISSENTER
Judge Reduces Burden On Prosecutors In Espionage Act Case Against Drone
Whistleblower
BY KEVIN GOSZTOLA - 30 JUN 2021 - VIEW ONLINE →
United States District Court for the Eastern District of Virginia (Photo:
Tim Evanson)
A federal court rejected a request by drone whistleblower Daniel Hale to
order the United States government to produce any damage assessments, which
may show whether harm resulted from his disclosures.
District Judge Liam O’Grady did not immediately issue an order with any
justification for his decision, but prosecutors-led by Assistant U.S.
Attorney Gordon Kromberg-indicated the “government does not intend to argue
at sentencing that actual harm resulted from his conduct.”
Hale pled guilty on March 31 to one charge of violating the Espionage Act,
when he provided documents to Intercept co-founder Jeremy Scahill and
anonymously wrote a chapter in Scahill’s book, The Assassination Complex:
Inside the Government’s Secret Drone Warfare Program.
He was taken into custody and sent to the William G. Truesdale Detention
Center in Alexandria, Virginia, on April 28. His sentencing is scheduled for
July 27.
For sentencing, Hale asked the court to “compel the production of any
damage assessment performed by the intelligence community or any other U.S.
government agency.” He also urged the court to order the release of any
“evidence of actual harm” or the lack of harm.
“It does not matter whether the government intends to make an issue of
actual harm at Mr. Hale’s sentencing,” according to the motion to compel
[PDF] that was filed. “The law requires this court to consider the nature
and seriousness of the offense and any possible sentencing disparities,
among other factors.”
Hale’s defense maintained, “Whether actual harm resulted from his conduct
is central, just as it would be in nearly any criminal sentencing. The
quantum of harm bears directly on the nature and seriousness of the offense,
what would constitute just punishment, and the existence or lack of
sentencing disparities.”
But the government does not believe a federal court has some obligation to
consider “actual harm” when calculating a sentence nor do they believe it
is important for a judge or jury to figure out where a case fits in the
spectrum of previous Espionage Act cases.
The Justice Department plainly stated [PDF] they were “aware of no damage
assessments” that focused on Hale’s disclosures, “much less [that
suggest] little or no actual harm resulted.”
Prosecutors insist Hale is not entitled to evidence because he is not being
sentenced for an offense in which it must be proven that “actual harm”
resulted.
“We will not present at sentencing evidence of ‘actual harm” caused by
Hale’s criminal activity,” the Justice Department responded. “As a
result, the presence or absence (or the magnitude) of such actual harm will
not be at issue at sentencing. Accordingly, such evidence would be neither
‘necessary’ or ‘essential’ to Hale’s defense.”
Hale’s defense countered [PDF], “It is not up to the government to pick
and choose what will be relevant at Mr. Hale’s sentencing, nor to control
what the court may consider at sentencing by narrowing its proposed trial
evidence.”
“Rather, it is elementary that a sentencing court may consider nearly any
factor that would be aggravating or mitigating.”
As argued by Hale’s defense, “The government’s decision not to offer
proof of actual harm at sentencing does not render evidence of actual harm
irrelevant. Neither does the fact that actual harm was not an element the
government was required to prove at trial.”
“The question of actual harm is relevant at sentencing because, among other
things, it describes the nature of the offense and because it sets Mr.
Hale’s conduct in context with that of others convicted under the same or
similar statutes.”
Over the past ten to fifteen years of Espionage Act cases, the government
has consistently argued whether or not harm occurred should have no bearing
on the extent to which they succeed in their prosecutions. It only matters
if the accused had reason to believe harm would occur, and federal judges
have deferred to their argument.
Judge Colleen Kollar-Kotelly ruled in 2013 in the Espionage Act case against
former State Department contractor Stephen Kim that prosecutors could
abandon precedent that was set in the trial against Samuel Morison, a Navy
civilian analyst who leaked photographs of Soviet ships to Jane’s Defence
Weekly.
“In cases like this which involve the alleged unauthorized disclosure of
classified information, the Morison approach invites (if not requires) the
jury to second guess the classification of the information,” Kollar-Kotelly
declared. She suggested it would produce an “absurdity,” where a person on
trial for an unauthorized disclosure could convert their trial into one
against the “classifying party.”
By this standard, the Espionage Act effectively functions as an Official
Secrets Act. So long as a person accused of an unauthorized disclosure
signed a secrecy agreement or received training on the classification of
information, they can be found guilty even if there is no proof that the
information would harm national security or aid an adversary or “foreign
power.”
Prosecutors restricted NSA contractor Reality Winner's defense by invoking
Kollar-Kotelly’s ruling. They insisted the “plain language” of the
Espionage Act does not require that the government demonstrate “alleged
classified intelligence reporting could threaten the national security of
the United States if disclosed.”
That the government may no longer be required to prove “actual harm”
during sentencing further reduces the burden on the Justice Department,
making it even more easier to make an example out of those who disclose
information in the public interest to challenge military or national
security operations.
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