On Thursday morning, the judge overseeing Jeremy Hammond's trial for his alleged involvement in the famed LulzSec Stratfor hack refused to step down from presiding over the case, despite a reported conflict of interest. Hammond's attorneys had filed a motion to have Judge Loretta Preska recuse herself from the case after it emerged that her husband had been a Stratfor client with data released by the hack.
The legal system is such that it was up to Preska herself to step down -- she opted against it, and Hammond will appear in court in April with the judge presiding. The same judge denied the activist bail (he has been held in a Manhattan federal prison for over a year, regularly placed in solitary confinement) and told the defendant that he could face life in jail for his alleged involvement in the hack.
On the same morning Judge Preska announced that she would not be stepping down from the case, Hammond released a statement of his own through his lawyers. The tract decries the criminal justice system's treatment of cyber activists, condemns government's persecution of dissent, and above all celebrates the work of the late Aaron Swartz.
In the statement, posted in full by SparrowMedia.net, Hammond writes:
The tragic death of internet freedom fighter Aaron Swartz reveals the government’s flawed “cyber security strategy” as well as its systematic corruption involving computer crime investigations, intellectual property law, and government/corporate transparency...
It is not the “crimes” Aaron may have committed that made him a target of federal prosecution, but his ideas – elaborated in his “Guerrilla Open Access Manifesto” – that the government has found so dangerous. The United States Attorney’s aggressive prosecution, riddled with abuse and misconduct, is what led to the death of this hero. This sad and angering chapter should serve as a wake up call for all of us to acknowledge the danger inherent in our criminal justice system.
Hammond's words echo those of, among others, Swartz's family and partner who blamed overzealous prosecutors and a flawed criminal justice system for driving the online activist to suicide over charges relating to downloading academic articles. Hammond sees Swartz's case in the context of growing persecution of online activism and dissent under the dangerously broad Computer Fraud and Abuse Act:
The rise in effectiveness of, and public support for, movements like Anonymous and Wikileaks has led to an expansion of computer crime investigations – most importantly enhancements to 18 U.S.C § 1030, the Computer Fraud and Abuse Act (CFAA). Over the years the CFAA has been amended five times and has gone through a number of important court rulings that have greatly expanded what the act covers concerning “accessing a protected computer without authorization.” It is now difficult to determine exactly what conduct would be considered legal.
... The sheer number of everyday computer users who could be considered criminals under these broad and ambiguous definitions enables the politically motivated prosecution of anyone who voices dissent.
The 27-year-old alleged hacker then frames his own case in terms of a "fundamentally flawed and corrupt" legal system:
I am currently facing multiple computer hacking conspiracy charges due to my alleged involvement with Anonymous, LulzSec, and AntiSec, groups which have targeted and exposed corruption in government institutions and corporations such as Stratfor, The Arizona Department of Public Safety, and HB Gary Federal. My potential sentence is dramatically increased because the Patriot Act expanded the CFAA’s definition of “loss.” This allowed Stratfor to claim over 5 million dollars in damages, including the exorbitant cost of hiring outside credit protection agencies and “infosec” corporations, purchasing new servers, 1.6 million dollars in “lost potential revenue” for the time their website was down, and even the cost of a 1.3 million dollar settlement for a class action lawsuit filed against them. Coupled with use of “sophisticated means” and “affecting critical infrastructure” sentence enhancements, if convicted at trial I am facing a sentence of 30-years-to-life.
Dirty trial tactics and lengthy sentences are not anomalies but are part of a fundamentally flawed and corrupt two-tiered system of “justice” which seeks to reap profits from the mass incarceration of millions, especially people of color and the impoverished. The use of informants who cooperate in exchange for lighter sentences is not just utilized in the repressive prosecutions of protest movements and manufactured “terrorist” Islamophobic witch-hunts, but also in most drug cases, where defendants face some of the harshest sentences in the world.
For Aaron Swartz, himself facing 13 felony CFAA charges, it is likely that it was this intense pressure from relentless and uncompromising prosecutors, who, while being aware of Aaron’s psychological fragility, continued to demand prison time, that led to his untimely death.
As noted here numerous times, following Swartz's death, efforts have arisen to reform the CFAA. Rep. Zoe Lofgren, D-Calif., has proposed legislation, titled “Aaron’s law,” that aims to stop the government bringing disproportionate charges in cases like Swartz’s. However, as I noted at the time, "the structural problems plaguing federal justice go far beyond Swartz’s prosecutors and cyber crime law." Hammond expresses similar skepticism about the effectiveness of such reforms when it comes to ending government persecution under the CFAA, which he argues must be "found unconstitutional under the void-for-vagueness doctrine of the due process clause":
Due to widespread public outrage, there is talk of congressional investigations into the CFAA. But since the same Congress had proposed increased penalties not even one year ago, any efforts at reform are unlikely to be more than symbolic. What is needed is not reform but total transformation; not amendments but abolition. Aaron is a hero to me because he did not wait for those in power to realize his vision and change their game, he sought to change the game himself, and he did so without fear of being labeled a criminal and imprisoned by a backwards system of justice.
Meanwhile, following Judge Preska's decision not to recuse herself Thursday morning, anger at the government's treatment of Hammond is set to foment. In advance of Preska's decision, Heidi Boghosian, executive director of the National Lawyers Guild which is putting support behind Hammond's defense, said, "The conflict of interest here is clear cut ... Judge Preska is required to avoid the appearance of bias so that, even if she owned one share of Stratfor stock, she would be obligated to recuse herself. How can she be impartial when the case directly affects the man she wakes up to every morning?”
Hammond's twin, Jason, said of Preska overseeing his brother's case, "There's no way he can get a fair trial in her courtroom.”