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Carmen Ortiz And Stephen Heymann: Accountability For Prosecutorial Abuse

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Cross-posted from The Guardian

Imposing real consequences on these federal prosecutors in the Aaron Swartz case is vital for both justice and reform

US Attorney Carmen Ortiz is under fire for her office's conduct in the prosecution of Aaron Swartz. Photograph: US Department of Justice

Whenever an avoidable tragedy occurs, it's common for there to be an intense spate of anger in its immediate aftermath, which quickly dissipates as people move on to the next outrage. That's a key dynamic that enables people in positions of authority to evade consequences for their bad acts. But as more facts emerge regarding the conduct of the federal prosecutors in the case of Aaron Swartz -- Massachusetts' US attorney Carmen Ortiz and assistant US attorney Stephen Heymann -- the opposite seems to be taking place: there is greater and greater momentum for real investigations, accountability and reform. It is urgent that this opportunity not be squandered, that this interest be sustained.

The Wall Street Journal reported this week that -- two days before the 26-year-old activist killed himself on Friday -- federal prosecutors again rejected a plea bargain offer from Swartz's lawyers that would have kept him out of prison. They instead demanded that he "would need to plead guilty to every count" and made clear that "the government would insist on prison time." That made a trial on all 15 felony counts -- with the threat of a lengthy prison sentence if convicted -- a virtual inevitability.

Just three months ago, Ortiz's office, as TechDirt reported, severely escalated the already-excessive four-felony-count indictment by adding nine new felony counts, each of which "carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony," meaning "the sentence could conceivably total 50+ years and [a] fine in the area of $4 million." That meant, as Think Progress documented, that Swartz faced "a more severe prison term than killers, slave dealers and bank robbers."

Swartz's girlfriend, Taren Stinebrickner-Kauffman, told the WSJ that the case had drained all of his money and he could not afford to pay for a trial. At Swartz's funeral in Chicago on Tuesday, his father flatly stated that his son "was killed by the government."

Ortiz and Heymann continue to refuse to speak publicly about what they did in this case -- at least officially. Yesterday, Ortiz's husband, IBM Corp executive Thomas J. Dolan, took to Twitter and -- without identifying himself as the US Attorney's husband -- defended the prosecutors' actions in response to prominent critics, and even harshly criticized the Swartz family for assigning blame to prosecutors: "Truly incredible in their own son's obit they blame others for his death," Ortiz's husband wrote. Once Dolan's identity was discovered, he received assertive criticism and then sheepishly deleted his Twitter account.

Clearly, the politically ambitious Ortiz -- who was touted just last month by the Boston Globe as a possible Democratic candidate for governor -- is feeling serious heat as a result of rising fury over her office's wildly overzealous pursuit of Swartz. The same is true of Heymann, whose father was Deputy Attorney General in the Clinton administration and who has tried to forge his own reputation as a tough-guy prosecutor who takes particular aim at hackers.

Yesterday, the GOP's House Oversight Committee Chairman, Darrell Issa, announced a formal investigation into the Justice Department's conduct in this case. Separately, two Democratic members of the House Judiciary Committee issued stinging denunciations, with Democratic Rep. Jared Polis proclaiming that "the charges were ridiculous and trumped-up" and labeling Swartz a "martyr" for the evils of minimum sentencing guidelines, while Rep. Zoe Lofgren denounced the prosecutors' behavior as "pretty outrageous" and "way out of line."

petition on the White House's website to fire Ortiz quickly exceeded the 25,000 signatures needed to compel a reply, and a similar petition aimed at Heymann has also attracted thousands of signatures, and is likely to gather steam in the wake of revelations that another young hacker committed suicide in 2008 in response to Heymann's pursuit of him (You can [and I hope will] sign both petitions by clicking on those links; the Heymann petition in particular needs more signatures).

In sum, as CNET's Declan McCullagh detailed in a comprehensive article this morning, it is Ortiz who "has now found herself in an unusual -- and uncomfortable -- position: as the target of an investigation instead of the initiator of one." And that's exactly as it should be given that, as he documents, there is little question that her office sought to make an example out of Swartz for improper and careerist benefits. Swartz "was enhancing the careers of a group of career prosecutors and a very ambitious -- politically-ambitious -- U.S. attorney who loves to have her name in lights," the Cambridge criminal lawyer Harvey Silverglate told McCullagh. Swartz's lawyer said that Heymann "was going to receive press and he was going to be a tough guy and read his name in the newspaper." Writes McCullagh:

"If Swartz had stolen a $100 hard drive with the JSTOR articles, it would have been a misdemeanor offense that would have yielded probation or community service. But the sweeping nature of federal computer crime laws allowed Ortiz and [] Heymann, who wanted a high-profile computer crime conviction, to pursue felony charges. Heymann threatened the diminutive free culture activist with over 30 years in prison as recently as last week."

For numerous reasons, it is imperative that there be serious investigations about what took place here and meaningful consequences for this prosecutorial abuse, at least including firing. It is equally crucial that there be reform of the criminal laws and practices that enable this to take place in so many other cases and contexts.

To begin with, there has been a serious injustice in the Swartz case, and that alone compels accountability. Prosecutors are vested with the extraordinary power to investigate, prosecute, bankrupt, and use the power of the state to imprison people for decades. They have the corresponding obligation to exercise judgment and restraint in how that power is used. When they fail to do so, lives are ruined -- or ended.

The US has become a society in which political and financial elites systematically evade accountability for their bad acts, no matter how destructive. Those who torture, illegally eavesdrop, commit systemic financial fraud, even launder money for designated terrorists and drug dealers are all protected from criminal liability, while those who are powerless -- or especially, as in Swartz's case, those who challenge power -- are mercilessly punished for trivial transgressions. All one has to do to see that this is true is to contrast the incredible leniency given by Ortiz's office to large companies and executives accused of serious crimes with the indescribably excessive pursuit of Swartz.

This immunity for people with power needs to stop. The power of prosecutors is particularly potent, and abuse of that power is consequently devastating. Prosecutorial abuse is widespread in the US, and it's vital that a strong message be sent that it is not acceptable. Swartz's family strongly believes -- with convincing rationale -- that the abuse of this power by Ortiz and Heymann played a key role in the death of their 26-year-old son. It would be unconscionable to decide that this should be simply forgotten.

Beyond this specific case, the US government -- as part of its war to vest control over the internet in itself and in corporate factions -- has been wildly excessive, almost hysterical, in punishing even trivial and harmless activists who are perceived as "hackers." The 1984 Computer Fraud and Abuse Act (CFAA) -- enacted in the midst of that decade's hysteria over hackers -- is so broad and extreme that it permits federal prosecutors to treat minor, victimless computer pranks -- or even violations of a website's "terms of service" -- as major felonies, which is why Rep. Lofgren just announced her proposed "Aaron's Law" to curb some of its abuses.

But the abuses here extend far beyond the statutes in question. There is, as I wrote about on Saturday when news of Swartz's suicide spread, a general effort to punish with particular harshness anyone who challenges the authority of government and corporations to maintain strict control over the internet and the information that flows on it. Swartz's persecution was clearly waged by the government as a battle in the broader war for control over the internet. As Swartz's friend, the NYU professor and Harvard researcher Danah Boyd, described in her superb analysis:

"When the federal government went after him -- and MIT sheepishly played along -- they weren't treating him as a person who may or may not have done something stupid. He was an example. And the reason they threw the book at him wasn't to teach him a lesson, but to make a point to the entire Cambridge hacker community that they were p0wned.It was a threat that had nothing to do with justice and everything to do with a broader battle over systemic power.

"In recent years, hackers have challenged the status quo and called into question the legitimacy of countless political actions. Their means may have been questionable, but their intentions have been valiant. The whole point of a functioning democracy is to always question the uses and abuses of power in order to prevent tyranny from emerging. Over the last few years, we've seen hackers demonized as anti-democratic even though so many of them see themselves as contemporary freedom fighters. And those in power used Aaron, reframing his information liberation project as a story of vicious hackers whose terroristic acts are meant to destroy democracy ....

"So much public effort has been put into controlling and harmonizing geek resistance, squashing the rebellion, and punishing whoever authorities can get their hands on. But most geeks operate in gray zones, making it hard for them to be pinned down and charged. It's in this context that Aaron's stunt gave federal agents enough evidence to bring him to trial to use him as an example. They used their power to silence him and publicly condemn him even before the trial even began."

The grotesque abuse of Bradley Manning. The dangerous efforts to criminalize WikiLeaks' journalism. The severe overkill that drives the effort to apprehend and punish minor protests by Anonymous teenagers while ignoring far more serious cyber-threats aimed at government critics. The Obama administration's unprecedented persecution of whistleblowers. And now the obscene abuse of power applied to Swartz.

This is not just prosecutorial abuse. It's broader than that. It's all part and parcel of the exploitation of law and the justice system to entrench those in power and shield themselves from meaningful dissent and challenge by making everyone petrified of the consequences of doing anything other than meekly submitting to the status quo. As another of Swartz's friends, Matt Stoller, wrote in an equally compelling essay:

"What killed him was corruption. Corruption isn't just people profiting from betraying the public interest. It's also people being punished for upholding the public interest. In our institutions of power, when you do the right thing and challenge abusive power, you end up destroying a job prospect, an economic opportunity, a political or social connection, or an opportunity for media. Or if you are truly dangerous and brilliantly subversive, as Aaron was, you are bankrupted and destroyed. There's a reason whistleblowers get fired. There's a reason Bradley Manning is in jail. There's a reason the only CIA official who has gone to jail for torture is the person -- John Kiriakou -- who told the world it was going on. There's a reason those who destroyed the financial system 'dine at the White House', as Lawrence Lessig put it.

"There's a reason former Senator Russ Feingold is a college professor whereas former Senator Chris Dodd is now a multi-millionaire. There's a reason DOJ officials do not go after bankers who illegally foreclose, and then get jobs as partners in white collar criminal defense. There's a reason no one has been held accountable for decisions leading to the financial crisis, or the war in Iraq.

"This reason is the modern ethic in American society that defines success as climbing up the ladder, consequences be damned. Corrupt self-interest, when it goes systemwide, demands that it protect rentiers from people like Aaron, that it intimidate, co-opt, humiliate, fire, destroy, and/or bankrupt those who stand for justice."

In most of what I've written and spoken about over the past several years, this is probably the overarching point: the abuse of state power, the systematic violation of civil liberties, is about creating a Climate of Fear, one that is geared toward entrenching the power and position of elites by intimidating the rest of society from meaningful challenges and dissent. There is a particular overzealousness when it comes to internet activism because the internet is one of the few weapons -- perhaps the only one -- that can be effectively harnessed to galvanize movements and challenge the prevailing order. That's why so much effort is devoted to destroying the ability to use it anonymously -- the Surveillance State -- and why there is so much effort to punishing as virtual Terrorists anyone like Swartz who uses it for political activism or dissent.

The law and prosecutorial power should not be abused to crush and destroy those who commit the "crime" of engaging in activism and dissent against the acts of elites. Nobody contests the propriety of charging Swartz with some crime for what he did. Civil disobedience is supposed to have consequences. The issue is that he was punished completely out of proportion to what he did, for ends that have nothing to do with the proper administration of justice. That has consequences far beyond his case, and simply cannot be tolerated.

Finally, there is the general disgrace of the US justice system: the wildly excessive emphasis on merciless punishment even for small transgressions. Numerous people have written extensively about the evils of America's penal state, including me in my last book and when the DOJ announced that HSBC would not be prosecuted for money laundering because, in essence, it was too big to jail.

All the statistics are well known at this point. The US imprisons more of its citizens than any other nation in the world, both in absolute numbers and proportionally. Despite having only roughly 5% of the world's population, the US has close to 25% of the world's prisoners in its cages. This is the result of decades of a warped, now-bipartisan obsession with proving "law and order" bona fides by advocating for ever harsher and less forgiving prison terms even for victimless "crimes."

The "drug war" is the leading but by no means only culprit. The result of this punishment-obsessed justice approach is not only that millions of Americans are branded as felons and locked away, but that the nation's racial minorities are disproportionately harmed. As the conservative writer Michael Moynihan detailed this morning in the Daily Beast, there is growing bipartisan recognition "the American criminal justice system, in its relentlessness and inflexibility, its unduly harsh sentencing guidelines, requires serious reexamination." As he documents, prosecutors have virtually unchallengeable power at this point to convict anyone they want.

In sum, as Sen Jim Webb courageously put it when he introduced a bill aimed at fundamentally reforming America's penal state, a bill that predictably went nowhere: "America's criminal justice system has deteriorated to the point that it is a national disgrace" and "we are locking up too many people who do not belong in jail." The tragedy of Aaron Swartz's mistreatment can and should be used as a trigger to challenge these oppressive penal policies. As Moynihan wrote: "those outraged by Swartz's suicide and looking to convert their anger into action would be best served by focusing their attention on the brutishness and stupidity of America's criminal justice system."

But none of this reform will be possible without holding accountable the prime culprits in this case: Carmen Ortiz and Stephen Heymann [MIT officials have their own reckoning to do]. Their status as federal prosecutors does not and must not vest them with immunity; the opposite is true: the vast power that has been vested in them requires consequences when it is abused. It is up to the rest of us to ensure that this happens, not to forget the anger and injustice from this case in a week or a month or a year. A sustained public campaign is necessary to bring real accountability to Ortiz and Heymann, and only then can further urgently needed reforms flow from the tragedy of Swartz's suicide.

Note:

A photograph was originally included with this column that purported to be of Stephen Heymann, but uncertainty over its accuracy resulted in my removal of it pending confirmation.

 

For the past 10 years, I was a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters. I am the author of the New York Times Best-Selling book, How Would A Patriot (more...)
 

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Shake, shake, shake....   Shake your booty!... by Ned Lud on Thursday, Jan 17, 2013 at 10:26:59 AM
In the name of the .01% ers.The rest of us better ... by Poor old Dirt farmer on Thursday, Jan 17, 2013 at 10:41:41 AM
that we need to stay focused on this issue of refo... by intotheabyss on Thursday, Jan 17, 2013 at 12:15:27 PM
This is the sort of abuse is exactly what one can ... by Rudy Avizius on Thursday, Jan 17, 2013 at 12:30:30 PM
are only figureheads and representatives of an Aut... by Paul Repstock on Thursday, Jan 17, 2013 at 7:04:50 PM
Where the law is defined by the prejudices and exi... by Michael Collins on Thursday, Jan 17, 2013 at 11:58:05 PM