Federal justice and Aaron Swartz's death

Anger at Swartz's prosecutors is valid. Anger at the federal justice system in which they acted is needed

Published January 16, 2013 12:45PM (EST)

Aaron Swartz              (Wikipedia)
Aaron Swartz (Wikipedia)

Aaron Swartz was not the first brilliant young technologist to commit suicide while facing prosecution by the U.S. government for cybercrimes. In 2008, a young hacker named Jonathan James killed himself when he was named as a suspect in a case brought by the very same prosecutor who zealously pursued Swartz -- Massachusetts Assistant U.S. Attorney Stephen Heymann.

Unlike Swartz, James left a note. "I have no faith in the 'justice' system. Perhaps my actions today, and this letter, will send a stronger message to the public. Either way, I have lost control over this situation, and this is my only way to regain control." He had been incarcerated for cybercrimes as a teenager. Meanwhile Swartz's family and partner directed some blame for his suicide last week at "a criminal justice system rife with intimidation and prosecutorial overreach."

Swartz's defense lawyer Elliot Peters has specifically decried the zealousness with which the prosecutor pursued his client. Heymann, Peters charged this week, "was very intransigent." Peters said that the prosecutor was seeking "some juicy looking computer crime cases and Aaron's case, sadly for Aaron, fit the bill." According to Peters, "[Heymann] was going to receive press and he was going to be a tough guy and read his name in the newspaper."

In the wake of a young man's suicide, these are heavy condemnations, the weight of which should not all fall on one prosecutor, however fervid or objectionable his actions may have been. Heymann's treatment of Swartz -- including the insistence that in any plea deal Swartz would have to face jail time -- arises from a context in which federal prosecutions regularly contour without obstruction into the persecution of activists and dissenters. And the conditions for this pattern are provided by a legal system in which the concentration of power is uniquely placed in the hands of prosecutors.

Rep. Darrell Issa, chair of the House Oversight Committee, announced Tuesday that he had an investigator looking into the handling of Swartz's case. Rep. Zoe Lofgren took to Reddit, the online platform Swartz helped found, to propose legislation, "Aaron's law," which aims to stop the government bringing disproportionate charges in cases like Swartz's under the Computer Fraud and Abuse Act. However, the structural problems plaguing federal justice go far beyond Swartz's prosecutors and cyber crime law.

Concentration of power

"When one considers the fact that more than 95 percent of all criminal cases are resolved with guilty pleas, it is very clear that prosecutors control the criminal justice system through their charging and plea bargaining powers," wrote American University law professor Angela Davis last year. The introduction in recent years of minimum mandatory trial sentencing has provided prosecutors increasing leverage with which to extract guilty pleas -- fear of losing a trial on charges with hefty mandatory sentences puts defendants squarely in the thrall of prosecutors.

This proved particularly problematic for Swartz who, as Henry Blodget at Business Insider put it, "had the bad luck to run into a prosecutor who was very passionate about defending the lines that Swartz appears to have crossed." It is a troubling state of affairs indeed if the vagarious interests of one federal prosecutor, acting outside of public view, can determine so much about an individual's future. A number of other recent cases illustrate how much difference the particular desires of given U.S. attorneys can make. For example, the four U.S. attorneys in California acted to shut down hundreds of medical marijuana dispensaries (despite the state deeming them legal) and bringing substantial federal charges against a handful of dispensary owners who had been following state law.

Compounding the problem of prosecutorial power is a profound lack of transparency. As Davis noted, "charging and plea bargaining decisions are made behind closed doors, and prosecutors are not required to justify or explain these decisions to anyone."

Black boxes

Federal prosecutors, appointed by the president and thus not accountable to an electorate, decide what, who and how to prosecute through some of the blackest boxes in our judicial system -- grand juries. As I wrote in Truth-Out last year, "Ironically, the purported purpose of a federal grand jury is to act as 'a safeguard to the accused from the improper motivations of government' --  to protect the accused from prosecutorial overreach." However, as Will Potter, author of "Green Is the New Red," who has long covered the state persecution of environmental activists, has noted, these closed-door procedures brought by a U.S. attorney "have been used historically against social movements as tools of fishing expeditions, and they're used to seek out information about people's politics and their political associations."

Last year I wrote in Salon about the anarchists in the Pacific Northwest incarcerated without any criminal charges for their refusal to speak to a federal grand jury when subpoenaed. As I noted, grand juries are "rare instances in which an individual loses the right to remain silent. As was the case with the Northwest grand juries resistors, the grand jury can grant a subpoenaed individual personal immunity; Fifth Amendment rights against self-incrimination are therefore protected, but silence is not. In these instances, refusal to speak can be considered civil contempt. Non-cooperators can be jailed for the 18-month length of the grand jury." In the past year, four individuals who resisted cooperating with the Northwest grand jury have been put behind bars.

As such, federal prosecutors coerce activists into giving up information, while the subpoenaed parties are told nothing about who the subject or subjects of a grand jury investigation might be, or how information gleaned through grand jury hearings might be used. Individuals who refuse to cooperate with this system risk substantial jail time. Again, the federal prosecutors have all the leverage; resistance takes great strength and formidable support networks.

Swartz's defense attorney told the Huffington Post that Assistant U.S. Attorney Heymann "had harassed several of Swartz’s friends into testifying before a grand jury.” As one anarchist who refused to cooperate with a New York grand jury in 2009 told me, when a group of friends or broader network are targeted with grand jury subpoenas, fear, distrust and despair spread fast, not least because of the secrecy shrouding procedures. And this atmosphere of intimidation is created long before charges are even brought.

Property, life, liberty

Writing in Rolling Stone last May, Rick Perlstein highlighted a disturbing pattern in which federal authorities devote disproportionately more attention to targeting activists, anarchists and Muslims than they do other groups such as white supremacist militias. "The State is singling out ideological enemies," wrote Perlstein, noting how FBI sting operations regularly focused on entrapping activists and anarchists (like the eight Cleveland anarchists last year who were "unable to terrorize their way out of a paper bag" but were guided into a bomb plot by an undercover agent) rather than racist far-right militias deemed currently to be the greatest homegrown terror threat.

Swartz, as I've noted, was no anarchist. But his brand of activism -- including the sharing of academic articles -- fell within the purview of behaviors deemed threatening to the government. Critics of the Massachusetts U.S. attorney who have stressed that Swartz's alleged crimes had no victims forget that the government has a strong history in doling out harsh punishments when property -- intellectual or material -- is involved. In all their years of activism, particularly concentrated in the 1990s, the Animal Liberation Front and the Earth Liberation Front never injured one human or animal and took pains to ensure this was the case. Nonetheless, acts of property damage alone led then-FBI director Robert Mueller in 2006 to call these environmental activists one of the agency's "highest domestic terrorism priorities." The recent revelation of extensive FBI surveillance of Occupy activity aligns with this pattern.

A petition on the White House website for President Obama to remove Massachusetts U.S. Attorney Carmen Ortiz (Heymann's superior) over her office's treatment of Swartz has garnered more than 29,000 online signatures -- 25,000 are needed to require a response from the administration. The desire for retribution over the witch hunt directed at a thoughtful, brilliant, passionate young man is understandable. Whether Ortiz, Heymann and others involved deserve punishment or removal is one thing -- perhaps they do. But even if they are ousted, our federal justice system will remain structured around prosecutorial control, secrecy and a troubling ideological bent against the ideas for which Swartz fought.


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By Natasha Lennard

Natasha Lennard is an assistant news editor at Salon, covering non-electoral politics, general news and rabble-rousing. Follow her on Twitter @natashalennard, email nlennard@salon.com.

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