In May and October 2019, the U.S. Department of Justice (DOJ) announced charges against two new leakers of government information, including under the Espionage Act, 18 U.S.C. § 793. On May 9, 2019, the DOJ unsealed an indictment against former U.S. Air Force intelligence analyst Daniel Everette Hale, alleging that he “illegally obtain[ed] classified national defense information” and disclosed it to a reporter. Hale was charged with four counts under the Espionage Act and one additional count under 18 U.S.C. § 641. On October 9, the DOJ released an indictment against a Defense Intelligence Agency (DIA) employee for leaking classified national defense information to two journalists, one at CNBC and the other at NBC News. Henry Kyle Frese was charged with two counts of willful transmission of national defense information under the Espionage Act.
The latest charges were not the first brought by President Donald Trump’s administration, which continued the trend started by President Barack Obama’s administration. The first such case for the Trump administration came to an end on Aug. 23, 2018 when former National Security Agency (NSA) contractor Reality Winner was sentenced to 63 months in prison and three years of probation, as well as 100 hours of community service upon her release. On Oct. 18, 2018, Terry James Albury, a former Minneapolis Federal Bureau of Investigation (FBI) agent charged with two counts of violating the Espionage Act, was sentenced to four years in prison by a federal judge in Minnesota, marking the conclusion of the second such prosecution by the Trump administration. On Oct. 15, 2018, James A. Wolfe, the former U.S. Senate Select Committee on Intelligence (SSCI) director of security, agreed to plead guilty to one count of making a false statement to the Federal Bureau of Investigation (FBI) in connection to an FBI investigation into “multiple unauthorized disclosures of information to one or more members of the news media.” As part of the investigation, the DOJ seized New York Times reporter Ali Watkins’ phone and email records during the investigation, prompting criticism from media experts and advocates.
On May 15, 2018, the U.S. government had identified Joshua A. Schulte, who formerly worked for the Central Intelligence Agency (CIA) and NSA, as a prime suspect in a March 2017 leak of CIA documents, the largest loss of confidential information in the agency’s history. On June 18, he was charged with 13 counts, including three under the Espionage Act, in addition to previous charges for possession of child pornography. As the Bulletin went to press, Schulte’ case remained ongoing in the U.S. District Court for the Southern District of New York.
Finally, on Oct. 17, 2018, senior U.S. Treasury Department employee Natalie Mayflower Sours Edwards was charged by federal prosecutors with two counts of violating federal law prohibiting the disclosure of highly confidential documents known as “suspicious activity reports” (SARs). As the Bulletin went to press, Edwards’ case remained ongoing in the Southern District of New York. (For more information on the cases against Winner, Albury, Wolfe, Schulte, and Edwards, see “Investigations, Prosecutions, and Sentencing Continue in Government Leak Cases” in the Fall 2018 issue of the Silha Bulletin and “Trump Administration Targets Journalist, Leaker of Government Information, and Former Government Employees Who Took Classified Documents” in the Summer 2018 issue.)
Additionally, on May 23, 2019, the DOJ released an indictment alleging 17 additional charges against WikiLeaks founder Julian Assange, all of which were under the Espionage Act, prompting significant concern from journalists and press advocates that the indictment was the next step in prosecuting traditional journalists under the statute. (For more information on the charges against Assange, see “Federal Prosecutors Charge Julian Assange With Seventeen Counts Under the Espionage Act, Prompting Renewed Concern for Journalists” in the Summer 2019 issue of the Silha Bulletin.)
Former Government Intelligence Analyst Charged with Leaking Classified Information to The Intercept
On May 9, 2019, the U.S. Department of Justice (DOJ) announced in a press release that an indictment was unsealed against former U.S. Air Force intelligence analyst Daniel Everette Hale for “illegally obtaining classified national defense information and disclosing it to a reporter.” National Public Radio (NPR) revealed on the same day that the reporter, who was not named in the indictment, was likely Jeremy Scahill, a founding editor of The Intercept and former reporter for The Nation. Hale was charged with four counts under the Espionage Act, 18 U.S.C. § 793 et seq., and one count under 18 U.S.C. § 641, which prohibits the theft of government property.
According to the indictment, which was dated March 7, 2019, Hale was enlisted in the Air Force from July 2009 through July 2013 where he served as an intelligence analyst. Hale was also assigned to work at the National Security Agency (NSA) from December 2011 through May 2013. From December 2013 through August 2014, Hale was employed at Leidos, a defense contractor and the National Geospatial-Intelligence Agency (NGA). In each capacity, Hale had a “TOP SECRET//SENSITIVE COMPARTMENTED INFORMATION” security clearance, providing him access to classified national defense information (NDI).
The indictment alleged that in April 2013, Hale used his unclassified NSA work computer “to search the internet for information on [Scahill]” and found that he was scheduled to appear at a bookstore in Washington, D.C. Hale met Scahill at the bookstore, after which he used his “TOP SECRET” NSA computer “to search for classified information concerning individuals and issues about which the Reporter wrote.” The documents included information on a wide range of topics, including the use of drones in war zones, a campaign targeting al-Qaida, and the Terrorist Identities Datamart Environment, through which the federal government compiles data on suspected terrorists, according to NPR.
According to the indictment, in ensuing weeks, Hale and Scahill exchanged emails and phone calls. In February 2014, Hale printed six classified documents unrelated to his work at the NGA, each of which were later published by The Intercept. In total, Hale printed 36 classified documents, including four duplicates. Nine documents were related to his work at NGA, the other 23 were not, according to the indictment, which alleged that he provided at least 17 to The Intercept, which published all of them in whole or in part.
Finally, the indictment alleged that Hale stored “Tor” software and the “Tails” operating system on two USB drives found at his home. The indictment stated that the software and operating system were “recommended by the Reporter’s Online News Outlet in an article published on the Reporter’s Online News Outlet’s website, which provided readers with instructions on how to anonymously ‘leak’ documents to the Reporter’s Online News Outlet.” Additionally, Hale’s cell phone included the contact information for Scahill.
The DOJ charged Hale with four counts under the Espionage Act, including for “Obtaining National Defense Information,” “Retention and Transmission of National Defense Information,” “Causing the Communication of National Defense Information,” and “Disclosure of Classified Communication Intelligence Information.” Additionally, the indictment included one count under 18 U.S.C. § 641, alleging that Hale “did knowingly and unlawfully steal and convert to his own use or the use of another, and without authority, conveyed and disposed of records and things of value of the United States.” For each, the indictment included a table detailing which leaked document pertained to each count. According to NPR, Hale faced up to 50 years in prison if convicted on all five counts.
The full indictment is available online at: https://fas.org/sgp/news/2019/05/hale-indict.pdf. As the Bulletin went to press, no further proceedings in the prosecution of Hale had taken place.
In a May 9, 2019 statement, The Intercept defended the newsworthiness of the documents leaked by Hale pertaining to the U.S. drone program. “[The leaked] documents [about] the U.S. drone program . . . detailed a secret, unaccountable process for targeting and killing people around the world, including U.S. citizens, through drone strikes,” the news organization wrote. “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.”
In a separate statement, James Risen, who went through a lengthy court battle after being subpoenaed in 2011 to testify before a grand jury during the investigation of Jeffrey Sterling, a former Central Intelligence Agency (CIA) officer who was later found guilty of violating the Espionage Act for leaking classified information, criticized the use of the statute. He wrote, “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, the director of The Press Freedom Defense Fund at First Look Media, continued, “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 [President] Donald Trump, targeting the very people who are working the hardest to hold the government accountable for abuses and to protect our democracy.” (Risen and attorney Joel Kurtzberg delivered the 30th Annual Silha Lecture, titled “Clear and Present Danger: Covering National Security Issues in the Post 9/11 World” on Oct. 19, 2015. For more information on the lecture, see “30th Annual Silha Lecture Addresses Challenges to Reporting on National Security Matters” in the Fall 2015 issue of the Silha Bulletin. For more information on Risen’s court battle to avoid revealing his confidential source, see “Espionage Conviction Ends Lengthy Struggle to Compel Journalist’s Testimony” in the Winter/Spring 2015 of the Silha Bulletin, “Attorney General Holder Leaves Problematic Legacy on Press Rights and Civil Liberties” in the Fall 2014 issue, “Update: Supreme Court Declines to Hear Reporter’s Privilege Cases” in the Summer 2014 issue, “Reporters Struggle to Claim Privilege to Avoid Testifying About Confidential Sources” in the Fall 2013 issue, and “Judges Rebuke Government on Leak Prosecutions” in the Summer 2011 issue.)
Defense Intelligence Agency Employee Charged Under the Espionage Act for Leaking National Defense Information to Two Journalists
In an Oct. 9, 2019 press release, the U.S. Department of Justice (DOJ) announced that a Defense Intelligence Agency (DIA) employee was arrested on the same day for allegedly disclosing classified national defense information (NDI) to two journalists in 2018 and 2019. Henry Kyle Frese was charged with two counts of willful transmission of national defense information under the Espionage Act, 18 U.S.C. § 793(d).
According to an October 8 indictment against Frese in the U.S. District Court for the Eastern District of Virginia, Frese was a contract employee with the DIA from January 2017 through February 2018 and a DIA employee from February 2018 through October 2019. In each position, he held a “Top Secret//Sensitive Compartmented Information” clearance, providing access to NDI that was classified as “TOP SECRET,” “SECRET,” and/or “CONFIDENTIAL.”
The indictment alleged that in April or May 2018, Frese accessed an “intelligence report unrelated to his job duties on multiple occasions, which contained NDI classified [as TOP SECRET].” The information pertained to a foreign country’s weapons systems. In September 2019, Frese accessed two additional intelligence reports. In total, Frese accessed five total intelligence reports.
The indictment alleged that Frese had several interactions on Twitter and through phone calls and text messages with two unnamed journalists who worked for different news outlets, though the outlets are owned by the same parent company. According to an affidavit attached to the indictment and signed by Federal Bureau of Investigation (FBI) Special Agent Donny Kim, Frese had 508 phone calls and 37 text messages with “Journalist 1” from March 1, 2018 through Oct. 7, 2019. He had 22 calls and 150 text messages with “Journalist 2.” The affidavit alleged that Frese was in a romantic relationship with Journalist 1 and sought to advance the journalist’s career. The Wall Street Journal later reported on October 9 that Journalist 1 was CNBC national security reporter Amanda Macias and Journalist 2 was NBC News journalist and producer Courtney Kube.
Authorized by Judge Leonie M. Brinkema of the Eastern District of Virginia, the FBI “intercepted certain portions of Frese’s text messages and telephone calls.” One such call occurred on Sept. 11, 2019 between Frese and Macias, during which they discussed “Journalist 2 and Journalist 2’s assignments at work.” In an October 9 interview with The Washington Post’s “Erik Wemple Blog,” Gabe Rottman, the director of the technology and press freedom project at the Reporters Committee for Freedom of the Press (RCFP), said that there was “nothing I’ve seen in there suggesting that they got records or content from reporters.”
The indictment and affidavit alleged that Frese discussed and transmitted the contents of the intelligence reports with Macias and Kube. According to the affidavit, the information passed to the journalists appeared in eight articles regarding the capabilities of certain foreign countries’ weapons systems, each of which were authored by Macias and some of which were co-authored by Kube. According to an Oct. 10, 2019 post on the “Erik Wemple Blog,” a July 1, 2019 story reported that “China is in the midst of conducting a series of anti-ship ballistic missile tests in the hotly contested waters of the South China Sea.” Several additional examples are available online at: https://www.washingtonpost.com/opinions/2019/10/10/reporters-cnbc-nbc-news-become-tangled-leak-investigation/.
Under the indictment, Frese was charged with two counts of “willful transmission of national defense information” under the Espionage Act. The indictment alleged that Frese “willfully transmitted information to a person not entitled to receive it, with reason to believe such information could be used to the injury of the United States and to the advantage of any foreign nation.” Each count carried a maximum of 10 years imprisonment, according to USA Today on October 9.
The full indictment is available online at: https://www.justice.gov/opa/press-release/file/1207916/download. The full affidavit is available online at: https://www.justice.gov/opa/press-release/file/1208691/download. As the Bulletin went to press, no further announcements had been made in the case.
In the DOJ’s October 9 press release, U.S. Attorney for the Eastern District of Virginia G. Zachary Terwilliger was quoted as saying, “Henry Kyle Frese was entrusted with TOP SECRET information related to the national defense of our country.. . . Frese allegedly violated that trust, the oath he swore to uphold, and is charged with engaging in dastardly and felonious conduct at the expense of our country.” He continued, “This indictment should serve as a clear reminder to all of those similarly entrusted with National Defense Information that unilaterally disclosing such information for personal gain, or that of others, is not selfless or heroic, it is criminal.”
Alan E. Kohler Jr., Special Agent in Charge of the FBI’s Washington Field Office Counterintelligence Division, was quoted as saying, “Mr. Frese allegedly disclosed highly classified national defense information, which puts our country and people at risk.. . . He violated his oath to serve and protect the United States. The men and women of the FBI work hard every day to protect the American people and uphold the Constitution — we will not stand by while trusted government employees violate that trust in such an egregious way.”
Rottman contended in his interview with Wemple that leak cases are problematic for journalists and newsgathering. “You’ve got 18 or 20 of these cases out there.. . . Aggressive leak prosecutions chill news-gathering because they dissuade sources from coming forward with newsworthy information.”
Wemple contended that the case demonstrated that “leak prosecutions are a serious business in Washington.” However, he also noted that Macias’ use of Frese as a source represented an “[i]nstant conflict of interest.” He continued, “No journalist can report objectively on the defense establishment if he or she is involved romantically with a key source employed therein. Though court documents don’t explicitly cite all the stories that allegedly stemmed from Frese, there are several stories that rely on deep intelligence sourcing.”
— Scott Memmel
Silha Bulletin Editor