Another Whistleblower Bites the Dust as The Intercept Adds a Third Notch to Its Burn Belt

Early Thursday morning, the Department of Justice unsealed an indictment against Daniel Everette Hale — a former intelligence analyst for the U.S. Air Force and National Security Agency (NSA) and later a defense contractor working for the National Geospatial-Intelligence Agency (NGA) — for providing a reporter with classified government information. The reporter in question, although unnamed in the indictment, is Jeremy Scahill, co-founder of and journalist for the online publication The Intercept.

The indictment against Hale makes him the third Intercept source to be charged with leaking classified information to the outlet in less than two years. Notably, both of the government whistleblowers that have already been prosecuted and convicted by the Trump administration – Reality Winner and Terry Albury – were Intercept sources who were outed as whistleblowers by reporters working for the online publication.

The publication, which has long been associated with the documents shared by whistleblower Edward Snowden, has yet to fire any of the reporters responsible for these breaches that have seen two whistleblowers already imprisoned and third, Daniel Hale, likely to be imprisoned.

Despite its increasingly dismal track record, the publication – largely funded bygovernment-linked tech billionaire Pierre Omidyar – continues to invite and “welcome” whistleblowers from the public and private sector and implores them to “consider sharing your information securely with us.”

“An utter failure of source protection. Again”

According to the Department of Justice website and the official indictment, Hale has been charged with obtaining national defense information, retention and transmission of national defense information, causing the communication of national defense information, disclosure of classified communications intelligence information, and theft of government property. Each charge carries a maximum sentence of 10 years in prison, meaning that Hale faces 50 years behind bars.

The indictment, which can be read in full here, details that Hale and “the reporter” (Scahill) communicated rather insecurely on several occasions, appearing at public events together, talking by phone and sending unencrypted text messages by phone.

Other information in the indictment shows that Scahill is clearly “the reporter” in question, given that “the reporter” in the indictment attended the Oscars in 2014 and held book events at the Washington, D.C. venue Busboys and Poets on April 29, 2013 and on June 8, 2013. During the June 8 book event, the indictment states that Hale was seated next to “the reporter” at an event where said reporter was promoting his book. A video taken at an event at Busboys and Poets held on June 8, 2013 shows Hale seated next to Scahill.

The indictment does not specify what led federal investigators to Hale several years after the events in question took place. Indeed, the indictment deals exclusively with events that took place between 2013 and 2015, and Hale’s house had been raided in August 2014, from which some of the evidence cited in the indictment was likely acquired. However, the Obama administration never pressed charges and it is unclear why the Trump administration has waited until now to do so, or if investigators acquired new information on Hale’s whistleblowing activities relatively recently. Hale, who appeared in the 2016 documentary National Bird about drone whistleblowers, had stated in that film that he anticipated being indicted at some point in time.

While the indictment suggests that the lack of secure communication with Scahill was a likely factor, there are other possibilities, such as the “friend” of Hale, noted in the indictment, with whom he discussed his relationship with Scahill.

Another possibility is that someone else at the Intercept other than Scahill was made aware of Hale’s identity, a point raised years ago by CIA whistleblower John Kiriakou and recently pointed out by independent journalist Caitlin Johnstone. After it was revealed that the Intercept  had obtained information from a whistleblower on drone warfare, which turned out to be Daniel Hale, in 2015, Kiriakou tweeted: “New drone whistleblower at The Intercept. For God’s sake don’t let Matthew Cole learn his identity.”

Cole, as will be noted later on in this report, has been accused by Kiriakou for outing him as a journalistic source to the federal government and, two years after Kiriakou’s tweet, was believed to have helped lead federal investigators to Intercept source Reality Winner in 2017. Thus, it is possible that Cole or another employee of the online publication had learned of Hale’s identity from Scahill and then passed it along, either intentionally or inadvertently, to the government.

Betsy Reed, editor-in-chief of the Intercept, said in a brief statement that the publication “does not comment on matters relating to the identity of anonymous sources.”

Jesselyn Radack — Hale’s lawyer, who has represented several past whistleblowers, such as Thomas Drake and Kiriakou — stated on Twitter that “unsophisticated whistleblowers” like Hale, now 31 years old but who was only 23 when he met Scahill, should not have borne the burden of keeping his identity safe. Rather, Radack wrote, such a burden fell to the journalist – particularly those working at an outlet like the Intercept that promotes its source protection capabilities (now very much in doubt).

In a separate tweet to journalist Tim Shorrock, Radack called Hale’s case “an utter failure of source protection. Again.” In other words, Hale’s lawyer – who is privy to information not contained in the publicly available indictment – asserts that a large part of the blame for Hale’s arrest was attributable to the Intercept’s, and presumably Scahill’s, behavior and failure to protect their source. The other guilty party, of course, is the Trump administration’s continuation — if not intensification — of the Obama-era crackdown on whistleblowers and journalistic sources.

The Intercept’s three-of-a-kind

For readers who may be puzzled by Radack’s use of “again” in her tweet to Shorrock, it is worth revisiting the case of the two currently imprisoned Intercept sources – Reality Winner and Terry Albury – both of whose whistleblowing activities were made known to the government as a result of poor decisions by Intercept staff.

MintPress reported on the acts by the online publication and noted that the Interceptmade two Freedom of Information Act (FOIA) requests in March 2016 for documents that the publication had already received from Albury — so the requests were an effort to “launder” or obfuscate the fact that the classified documents had been obtained from a whistleblower. Yet, both FOIA requests contained specific information identifying the names of the documents that were not publicly available, an error that led the FBI to link references contained in the requests to Albury’s activity on FBI information systems. The FBI subsequently found that documents that Albury had accessed had been later published by the Intercept.

Albury, a father of two young children, is currently serving a four-year sentence for bringing important information about the FBI’s abuse of power in relation to its counter-terrorism activities and surveillance of journalists to the public. To date, no one at the Intercept was fired in connection with Albury’s prosecution, despite the role of the FOIA requests made by the Intercept in his arrest.

Nine months prior to Albury’s arrest, Reality Winner, a federal contractor, had been arrested for giving a classified document to the Intercept. While the Intercept has long maintained that it was unaware that Winner was the source of the document, FBI documents have shown that negligence helped lead federal investigators straight to Winner. The Intercept’s scanned images of the intelligence report that Winner leaked contained tracking dots – a type of watermark – that, according to Rob Graham of the Errata Security blog, showed “exactly when and where documents, any document, is printed.” These dots make it easy to identify a printer’s serial number as well as the date and time a document was printed. As Graham noted, “Because the NSA logs all printing jobs on its printers, it can use this to match up precisely who printed the document.”

Most concerning of all, the FBI warrant also notes that the reporter in question – who is unnamed in the document – contacted a government contractor with whom he had a prior relationship and revealed where the documents had been postmarked from – Winner’s hometown of Augusta, Georgia – along with Winner’s work location. He also sent unedited images of the documents that contained the tracking dot security markings that allowed the documents to be traced to Winner. Jesselyn Radack as well as whistleblower John Kiriakou, who served two and a half years in prison for exposing the CIA’s illegal torture program, have since asserted that Matthew Cole was the journalist mentioned in this warrant. Well prior to being hired by the Intercept, Cole’s behavior was known to have been a key factor that led to Kiriakou being outed as a confidential source, which led to his arrest. Upon learning of Hale’s arrest, Kiriakou openly speculated upon whether the outlet was incomptent or compromised.

Despite this track record, the Intercept hired Cole anyway. Cole continues to write for the Intercept and appears to have suffered no negative consequences for his alleged role in outing Winner. Intercept editor-in-chief Reed took responsibility for the acts on the part of the publication that led to Winner’s arrest and “for making sure that the internal newsroom issues that contributed to it are resolved.” Reed remains employed by the Intercept and continues to make a hefty six-figure salary. Winner is currently serving a five year and three month prison sentence for releasing a classified NSA document in relation to alleged Russian intrusion of a U.S. election software supplier.

Furthermore, journalist Barrett Brown — who served a lengthy 63-month prison sentence for linking to hacked material — has recently stated that Intercept journalist Sam Biddle played a role in his imprisonment, further worsening the optics of the publication’s track record. Brown originally faced a combined sentence of over 100 years in prison before negotiating a plea deal.

With Hale now the latest whistleblower to have been allegedly outed as a result of poor operational security by Intercept staff, the question turns to whether any of those responsible will be held accountable. Scahill, a celebrity reporter at the paper who makes over $40,000 per article, is just as unlikely as those involved in the outing of Albury and Winner to face any sort of negative consequences for failing to protect their sources, who risked (and have temporarily lost) their freedom to bring vital information to the public.

Will Omidyar’s pull keep Scahill out of hot water?

While only an indictment against Hale has been made public, Scahill may soon find himself in trouble with the Department of Justice based on information contained in that indictment.

As Moon of Alabama noted in an article detailing the charges against Hale:

The first contacts with Hale and the first leaks by Hale were in the first half of 2013, when Hale was still enlisted and worked at the NSA. In July Hale emailed a resume to Scahill which he wanted to use to find a job with a defense contractor who leases people with security clearances to other U.S. agencies. They seem to have discussed the resume by phone. Hale was later hired by such a contractor and worked at the NGIA. There he copied the secret and top secret documents and presentations that seem to be the objects of Scahill’s later reporting. That Scahill discussed Hale’s resume with him could be construed as active help to gain access to secrets that would then be leaked to The Intercept.”

Indeed, such a narrative is present within the indictment and Scahill may be pursued by the Trump Department of Justice, which has shown great zeal in prosecuting not only confidential government sources but also their publishers. Notably, the currently unsealed charges against WikiLeaks co-founder and Editor-in-Chief Julian Assange put forth a similar, though less compelling, narrative that Assange actively goaded Chelsea Manning into accessing state secrets that were subsequently given to WikiLeaks. Based on this alone, it seems likely that Scahill’s behavior as detailed in the indictment is likely to see the journalist pursued by the DOJ in some capacity, given the charges now facing Assange.

If this comes to pass, it will bode dark days for the future of American journalism that are already heralded by the indictment awaiting Julian Assange and the current imprisonment of Chelsea Manning for refusing to testify against Assange or WikiLeaks.

Yet, if Scahill evades any legal predicament on his end, it will raise many questions, most notably one of a double standard between his treatment and Assange’s treatment by the Trump DOJ, especially considering that both Scahill’s and Assange’s journalistic work has largely been unfavorable to government interests. Unlike Assange, Scahill’s publication and work are funded by eBay billionaire and the owner of PayPal, Pierre Omidyar, who is very well-connected to the public and private sectoras well as to the U.S. intelligence community. Omidyar’s past public statements show hostility towards whistleblowers, whom Omidyar had likened to “thieves” prior to the Intercept’s founding.

If Scahill goes uncharged, it would likely be due to the intervention of powerful, politically-connected forces in the United States that are friendly towards Scahill, something Julian Assange lacks. Omidyar, given his ownership of the Intercept, would be the most probable person who could intervene successfully.

What did Hale’s whistleblowing reveal?

Based on the indictment, Hale is named as the source of several documents that revealed grave government wrong-doing, much of which related to the Obama administration’s expansion of the drone war and other counterterrorism programs with little or no oversight that have resulted in untold numbers of civilian deaths abroad.

One document noted in the indictment — “Document M,” which was classified as “secret” — appears in an article published in the Intercept in August 2014. That article revealed that most of the people in the government’s secret terror suspect database had no affiliation with any terror group and that the system disproportionately targeted Arab-Americans.

In addition, Documents A-F in the indictment appear to have been used in the Intercept’s “Drone Papers” series. Those documents revealed many stark truths and shocking facts about the Obama administration’s drone warfare campaign — which Trump has since significantly expanded — including the fact that U.S. drones killed innocent people 90 percent of the time, victims who were subsequently labeled “enemy combatants” regardless of their actual status.

Hale’s motive for coming forward with this information is very compelling and shows him to have risked his personal freedom in order to change a corrupt system. Cited in a 2015 article by Scahill as “the source,” Scahill wrote that Hale “decided to provide these documents to The Intercept because he believes the public has a right to understand the process by which people are placed on kill lists and ultimately assassinated on orders from the highest echelons of the U.S. government.”

Hale had said anonymously at the time:

This outrageous explosion of watchlisting — of monitoring people and racking and stacking them on lists, assigning them numbers, assigning them ‘baseball cards,’ assigning them death sentences without notice, on a worldwide battlefield — it was, from the very first instance, wrong…We’re allowing this to happen. And by ‘we,’ I mean every American citizen who has access to this information now, but continues to do nothing about it.”

To date, no one in the government has been held accountable for the killing of civilians in relation to the U.S. government’s covert drone assassination program.

The Intercept must be held accountable

Daniel Hale, just like Terry Albury and Reality Winner, is a hero. He exposed government programs that were out of control and killing innocent people around the world. Hale’s bravery helped hold the powerful to account and now Hale faces 50 years in prison, thanks to both the Trump administration’s troubling effort to double down on the persecution of whistleblowers and would-be whistleblowers as well as the actions of an employee, and potentially employees, of the Intercept.

If the Intercept will not hold itself accountable, as has thus far been the case, then it must be held accountable in the court of public opinion. Its employees must be held to account, including its celebrity journalists, for the paper’s refusal to deal with its indefensible track record of burning sources who have placed their trust in it. Concerned citizens on social media should ask Intercept journalists and the publication’s own accounts why nothing has been done and should demand that something tangible be done now that no less than three brave Americans who trusted the Intercept have found out the hard way that their trust was misplaced.

The lives of Winner, Albury and now Hale have been destroyed, in large part by the acts of a single publication that continues to market itself as “safe” for whistleblowers. While the Trump administration’s continued persecution of whistleblowers is the clear root of the problem, the fct remains that a site that advertises itself as “adversarial” to the State’s interests and as a haven for whistleblowers has aided the Trump administration in its persecution of whistleblowers, regardless of whether its operational security failures were intentional or inadvertent. If the Intercept as an organization were really so concerned with the Trump administration’s crackdown on press freedom, there would be accountability — not impunity — in such cases.

Sadly, by all appearances, the only confidential Intercept source from the public sector who was not outed by the publication and subsequently arrested was the source that prompted its formation: Edward Snowden, who “outed” himself. However, the Intercept closed its archive of the Snowden documents in late March, citing “cost” factors, despite the fact that the archive was less than 2 percent of its budget and its celebrity journalists, Glenn Greenwald and Jeremy Scahill, make over $500,000 and $349,000, respectively, leaving aside that the Intercept’s owner, Omidyar, is worth $12.7 billion.

If the Intercept continues to remain unaccountable, its track record of poor operational security and lack of concern for the risks its sources have taken could lead to the destruction of other lives. It also aggravates the chilling effect that the government’s prosecution of journalistic sources has had on those in the public sector seeking to expose government wrong-doing by narrowing their options for coming forward. Indeed, if something had been done after Winner’s case, perhaps the whistleblowing activities of neither Albury or Hale would have been made known to the government.

The Intercept claims to “hold the powerful accountable,” but such an adage will ring forever hollow until it is applied internally to its own organization and to those in its ranks who put the Trump administration on the trail of these brave whistleblowers.

Another Whistleblower Bites the Dust as The Intercept Adds a Third Notch to Its Burn Belt