For much of President Barack Obama’s two terms in the White House, press freedom groups and progressives alike criticized the Democrat for pursuing an unprecedented war on whistleblowers, and by extension, journalism.
Aside from the very clear complaints about chilling national security reporting, press advocates expressed concern that the Obama administration was setting a dangerous precedent — one that his successor, whomever that may be, could continue, perhaps even accelerate.
It appears their dire predictions are coming to bear, with yet another journalistic source enmeshed in the U.S. government’s years-long war on unauthorized disclosures.
On Thursday, President Donald Trump’s Department of Justice announced an indictment against a former intelligence analyst for leaking information to a reporter.
Daniel Everette Hale, 31, was charged under the Espionage Act for obtaining national defense information and disclosing classified communications, among other accusations. Each of the five counts against Hale carry a maximum of 10 years in prison. He was arrested Thursday morning.
Yet Another Source Charged With Disclosing Information to a Journalist
According to the indictment, Hale in April 2013 began meeting with an unidentified reporter in person prior to sharing messages over an encrypted platform. At the time, Hale was an enlisted U.S. Air Force airmen and had been assigned to the National Security Agency (NSA).
In February 2014, Hale, then a defense contractor for the National Geospatial-Intelligence Agency (NGA), allegedly printed six classified documents and subsequently exchanged messages with the reporter. The DOJ alleges Hale later provided the journalist and his outlet with at least 17 documents, 11 of which were marked as “Top Secret” or “Secret.”
The documents at the heart of the investigation reportedly mirror those reported on by The Intercept, an online investigative outlet, about the meteoric growth of drone warfare. Interestingly, The Intercept noted in its explosive piece on the ever-expanding drone program that it had granted the source anonymity partly due to the government’s campaign to silence leakers:
The Intercept granted the source’s request for anonymity because the materials are classified and because the U.S. government has engaged in aggressive prosecution of whistleblowers. The stories in this series will refer to the source as “the source.”
Although not named in the indictment, the journalist who published stories based on the documents is reportedly Jeremy Scahill, a co-founder of the The Intercept and prominent investigative journalist.
Those details point to Jeremy Scahill, a founding editor of The Intercept and former reporter for The Nation who wrote the book Dirty Wars, and produced a documentary of the same name, about U.S. drone campaigns and operations in Afghanistan and other countries. On the evening of April 29, 2013, Scahill was the featured speaker at the Busboys and Poets bookstore in Washington. The Intercept also published lengthy investigative stories about America’s drone programs on specific dates mentioned in the indictment.
For its part, The Intercept released a statement lamenting the attack on whistleblowers but did not comment on its purported connection to the leaks.
Its Editor-In-Chief Betsy Reed said: “These documents detailed a secret, unaccountable process for targeting and killing people around the world, including U.S. citizens, through drone strikes. They are of vital public importance, and activity related to their disclosure is protected by the First Amendment. The alleged whistleblower faces up to 50 years in prison. No one has ever been held accountable for killing civilians in drone strikes.”
As apparent proof that Hale was the source of the disclosures, the Justice Department alleges Hale’s cell phone contained contact information for the reporter and two thumb drives — including one containing software the reporter’s outlet recommended in an article it published about how to pass along information to its journalists.
Trump Continues Obama’s War on Leaks
Hale is the latest journalistic source caught up in this continued crackdown. According to the nonprofit Freedom of the Press Foundation, Hale is the sixth journalistic source charged by the Trump administration since the president took office in 2017.
The indictment comes just weeks after Trump’s DOJ formally charged WikiLeaks founder Julian Assange for his role in disseminating thousands of sensitive documents related to the U.S. war effort. It also follows a report from NBC News last month that criminal leak referrals “reached record high levels over the last two years.”
Among the most prominent whistleblowers charged during Trump’s short tenure is Reality Winner, the former NSA contractor who was accused of leaking classified material about Russian attempts to hack into U.S. voting systems. Winner was arrested two days before The Intercept reported on the apparent Russian cyberattack.
As she did this week, Reed in August 2018 emphasized the importance of the story — one that wouldn’t be possible without internal government documents.
“The information in The Intercept story on the NSA report played a crucial role in alerting local election officials who had been in the dark about the cyberattack — a public service that was implicitly acknowledged in a recent report from the Senate Intelligence Committee.”
That the government is aggressively pursuing sources of leaks is not surprising given how high a priority the Obama administration gave such cases.
James Risen, a Pulitzer-prize winning journalist who successfully fought off attempts by the Obama administration to force him to testify against the alleged source for a chapter he wrote in his 2006 book “State of War,” said this DOJ’s efforts to prosecute Hale are akin to criminalizing journalism.
“Like previous prosecutions of alleged journalistic sources, the prosecution of Daniel Everette Hale amounts to an abuse of the Espionage Act to criminalize the process of reporting,” Risen, now a reporter for The Intercept and director of First Look Media’s Press Freedom Defense Fund, said in a statement.
“Everyone who cares about press freedom should reject the government’s outrageous crackdown on whistleblowers, which accelerated dramatically under President Barack Obama and has escalated further under Donald Trump, targeting the very people who are working the hardest to hold the government accountable for abuses and to protect our democracy.”
Amid his own legal showdown with Obama’s DOJ, then led by Attorney General Eric Holder, Risen famously referred to Obama as “the greatest threat to press freedom in a generation.” Now it seems Trump has taken that baton.
Following in Obama’s Footsteps
While hawks on the right routinely assailed Obama for being weak on national security, the facts tell a far more complicated story. Obama expanded the use of America’s drone arsenal during his two terms in office — effectively making him the Drone-Commander-In-Chief — and waged wars across various undeclared battlefields, often deploying war authorization passed just days after the Sept. 11, 2001 attacks as justification.
The ramped up war effort coincided with an unprecedented crackdown on leaks. By the time he left office, Obama earned the distinction of prosecuting more people under the Espionage Act than all presidential administrations combined.
“Prosecuting journalistic sources chills investigative reporting and poses an enormous threat to whistleblowers, press freedom rights, and the public’s right to know,” said Freedom of the Press Foundation Executive Director Trevor Timm. “Whistleblowers should be lauded for their courage, not charged with felonies and imprisoned. The Trump administration is on pace to shatter the Obama administration’s record for the number of prosecutions of alleged sources, and everyone who cares about brave national security reporting should loudly condemn Hale’s arrest.”
While their public rhetoric regarding the press is demonstrably different, the way in which both have leveraged the courts — and the antiquated Espionage Act — to prosecute sources is ironically similar.
Trump’s first press conference as president-elect devolved into a frenzy after he dubbed a CNN reporter as “fake news” and called BuzzFeed a “failing pile of garbage.” Conversely, Obama began his presidency promising transparency.
“The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears,” Obama said in a January 21, 2009 memorandum.
Years later, advocacy groups bandied together to raise awareness about prosecutions they deemed dangerous to press freedoms. At a February 2016 event at the National Press Club in Washington, D.C., just blocks from the White House, an assembly line of advocates—including famed intellectual Dr. Cornel West—lambasted Obama for his administration’s hard-line anti-whistleblower policy.
Timothy Karr, senior director of strategy and communications for the nonprofit Free Press, went as far as comparing the Obama administration to the Nixon White House — a comparison Trump’s detractors make to describe the current president’s mercurial behavior.
“The Nixon administration tried to silence whistleblowers using illegal means,” Kerr said. “But the Obama administration is trying to silence whistleblowers using a misinterpretation of the laws that are on the books, and they have done it to greater impact than Nixon could ever imagine.”
The Espionage Act is relic of World War I and was initially intended as a tool to prosecute spies. The 21st century interpretation — made popular by Obama’s DOJ — transformed the archaic law into a devastating cudgel against leakers because it makes a public interest defense almost impossible.
As the Freedom of the Press Foundation outlined in a series of articles about the law:
Socialists, anti-war activists, whistleblowers and journalists have all found themselves targets of the Espionage Act. The law — which remains on the books to this day, as Title 18, Part 1, Chapter 37 of the U.S. Code — has grown into an American version of the U.K.’s “Official Secrets Act,” which outlaws the disclosure of any “information, documents or other articles relating to security or intelligence.”
With Obama two years removed from office, Americans wistful about the former president’s tenure often recall his tenderness in dark moments — mass shootings in particular — and a certain, perhaps unexplainable, trust factor. Yet many of the same people that are aghast at Trump’s anti-media rhetoric failed to recognize Obama’s troubling record on the subject.
Trump isn’t far behind in terms of leak indictments, and if he wins re-election in 2020, the number of whistleblower cases may surpass even his predecessor.
Whatever the case, it seems party affiliation has no bearing on whether its appropriate to kneecap the press by jailing reporters’ sources. In Washington, much like the establishment’s infatuation with the war machine and its predilection toward American hegemony, prosecuting sources who expose how the U.S. conducts itself at home and abroad enjoys unyielding bipartisan support.
In that sense, the last two presidents share more in common than their most ardent supporters would care to admit. And their shared disregard for the reporter-source relationship represents an existential threat to journalism — and democracy as a whole.
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