The Obama Administration’s Inspector Javert Speaks: Ortiz Issues Statement In Swartz Case

Carmen-Ortiz-144x150180px-JavertCarmen Ortiz, the US Attorney in Massachusetts, appears to be feeling some of the heat of the global anger over her prosecution of Aaron Swartz — an unrelenting prosecution that many (including the family) blame for his suicide. Ortiz is attempting to portray this abusive and unnecessary prosecution as prosecutors merely enforcing the law in compliance with their oath. They were, according to Ortiz, something akin to a legal version of Inspector Javert — committed to the enforcement of the federal law without discretion or judgment. Ortiz, who had remained silent, appears to have accepted that the case is presenting a serious problem for her and begins with a statement of sympathy that was entirely absent in the treatment of Swartz by her office and Assistant United States Attorney Stephen Heymann who has been linked to another suicide of a defendant.

Here is the statement:

January 16, 2013
STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ
REGARDING THE DEATH OF AARON SWARTZ
As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.

I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartz’s attorneys that it intended to seek – maximum penalties under the law.
As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.

It is always amusing to hear an Obama Administration official speaking of the obligation to prosecute federal crimes after President Obama promised CIA officials no one would be prosecuted for torture (a war crime as well as a federal crime) and the Justice Department was unwilling to bring a single charge — even for CIA officials who admitted that they destroyed evidence to bar prosecution. The Justice Department was unwilling to even bring bar complaints against attorneys facilitating the torture program. Yet, they had no alternative but to prosecute Swartz even though he downloaded academic papers later released free of charge and never had a financial or personal motive in his actions.

Her claim of an office struggling with its desire not to severely punish Swartz is belied by the evidence. First, asking for jail time was always an absurdly out-of-proportion demand and Ortiz admits that they insisted on jail time.

Second, her office ADDED CHARGES to the indictment rather than, as she suggests, seeking a sensible plea. The original indictment contained four charges against Swartz with a maximum potential jail time of 35 years. Her office issued a press released heralding their severe charges against Swartz as linked in the article below. Then her office piled on NINE MORE CHARGES with a maximum sentence of up to 50 years. In other words, the statement is at best misleading and at worse intentionally deceptive.

Moreover, reports indicate that Heymann was insisting on more severe punishment in any plea.

For the record, the US Attorneys manual stresses

“The statutory duty to prosecute for all offenses against the United States (28 U.S.C. § 547) carries with it the authority necessary to perform this duty. The USA is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.”

The entire prosecution was abusive and not only Ortiz but the Obama Administration was subject to criticism for months for their mistreatment of Swartz. They continued the prosecution because they had no sympathy or decency. However, when their prosecution became a global scandal, Ortiz and the Administration suddenly has portrayed themselves as reluctant — even tortured — public servants forced to prosecute this man. Ortiz should not be surprised if her “heartfelt sympathy” seems a bit forced and opportunistic after the public outcry. More importantly, such sympathy would be more credible if it were accompanied by greater veracity in her statement of the underlying facts of this case.

220px-Aaron_Swartz_at_Boston_Wikipedia_Meetup,_2009-08-18_

Source: TechDirt

186 thoughts on “The Obama Administration’s Inspector Javert Speaks: Ortiz Issues Statement In Swartz Case

  1. Jail time for downloading files for no personal gain but no jail time for banksters that laundered funds for drug cartels and got huge bonuses for doing so. And not even charges for war criminals who get a total pass. Do we really have a justice system for all? Or is it a multi-tiered system?

  2. I certainly agree that hearing a pious pronouncement about the Rule of Law from this Administration seems hypocritical but surely we can’t burden her with that policy saddle. She has said she was going to recommend a relatively light sentence (6 months) and communicated this intent to the defense attorneys. As she says, the defense was free to argue for less including probation and if the case was so obviously one of overkill the judge would surely step in.

    She has expressed some compassion about the young man’s decision to Boston.com:

    “My heart goes out to that family,” she said. “They are suffering a terrible loss. … I have to say that I am terribly upset about what happened here.”

    At this point any comparison with her and Javert seems hyperbole without much factual structure. I don’t see her uttering those immortal words from Les Miserables: “It’s a pity the law doesn’t allow me to be merciful.” It seems it did.

    I’m not sure what else she could do and still do her job which is not to decide but to present. The onus here appears to be on the one bringing the criminal complaint.

  3. Can someone please walk me through the thoery by which this prosecution was arbitrary or malicious. I do not know much about the details of the case, but my understanding is that Swartz intentionally stole millions of proprietary articles and distributed them to the public – not by some mistake or confusion or accident, but simply because he didn’t believe in the intellectual property regime by which the law protected them as privat property. He must have known that such public and intentional law-breaking carried a risk of prosecution, correct?

    I understand that it’s sad that he felt driven to suicide, but I do not understand the allegations of malicious prosecution. It seems he very intentionally and flagrantly stole quite a lot of valuable property. Is the sympathy just primarily engendered by agreement with his views on “information freedom”?

    Thanks for any explanation/info…

  4. DOJ filed in my lawsuit against DOJ that there is no duty to investigate a reported crime or to prosecute. Specifically, assistant U.S. Attorney David C. Rybicki wrote:

    “As explained in Section II.B, supra, ‘[t]he decision to allocate limited governmental resources to investigate a reported crime, like the decision to allocate limited resources to prosecute a crime, is a discretionary function.’ Martinez, 587 F. Supp. 2d at 249.” DDC 09-0562 doc 8-1 p 32

    Rybicki attached the names Channing D. Phillips and Rudolph Contreras to this filing and he sent me an email claiming something to the effect that his superiors were aware of and approved of the posture in this case.

  5. “… the statement is at best misleading and at worse intentionally deceptive.”

    I would say absolutely intentionally deceptive, malicious, and pure stinking propaganda.

    She is wreched, and if she was anywhere near a sincere person she would resign forthwith.

  6. Dredd:

    “I would say absolutely intentionally deceptive, malicious, and pure stinking propaganda.”

    *****************************

    Don’t you think it matters if she did, in fact, communicate her intention to ask for the 6 month sentence? The kid did break in and steal 4 million documents that were someone else’s property. Those articles go for about $35.00 a pop.

  7. “I’m not sure how she could feel that way before it happened.” (mespo)

    True enough. She was dead set on destroying Swartz life, and perhaps making a name for herself, with Swartz as collateral damage. Her little ‘throw the book at him tactic’ was just SOP I presume. I don’t know if you are being intentionally obtuse mespo, or if that’s your designated role, but it is hard to fathom. This prosecution screams abuse.

    And Josh, you really ought to educate yourself a bit more on abusive prosecution before you conclude that it’s so cut and dried.

    The consequences don’t just stop at the sentencing. As I stated previously:

    Sentencing is one thing. Labeling someone a felon for life is another, much less 13 felonies This effectively curtails an individuals future and stigmatizes his life. Losing the right to vote for one thing. Filling out job applications for another.

    Gaining restoration of rights is an onerous proposition as far as the procedures I’m aware of and discourages the vast majority of felons from even trying.

    This prosecution was out to destroy the life and reputation of Swartz as a scapegoat and example. His treatment in charging shows no leniency that would be expected for a first time offender.

    Additionally, even if the sentence were plea bargained down to minimum or even no jail time, the remainder of the original sentence that was forgiven still “hangs over” the felons head based on copious restrictions as to behavior and not reoffending. For a critic of the system like Swartz, who’s work in part revolved around challenging power, it would neuter such activity and/or virtually proscribe such action — basically subject to the authorities who would be continually looking over his shoulder during the term of his probation or parole.

    ——————

    No, they were out to destroy Swartz, and the threat that his type represents to the corporatist state, IMO. Who knows how far up the chain this project was planned? Fact is, Obama signs off. The only positive that might emerge is to reopen the questions surrounding selective avoidance of prosecution ande holding harmless all those torturers and enablers who have been encouraged and protected in their human rights violations pursuant to the “war on terror”.

  8. Josh
    I cannot answer your question, but one of the Professors at volokh conspiracy blog (Orin Kerr) has 2 long posts on this matter. One covers his opinion as to whether Mr. Swartz violated the law and the second on the issue of the prosecutor’s discretion.

    Prof. Kerr wrote “…, I think that some kind of criminal punishment was appropriate in this case. Swartz had announced his commitment to violating the law as a moral imperative in order to effectively nullify existing federal laws on access to information.”

    Assuming the statement about Mr. Swartz’s motive and intent is true, it is hard to disagree with Prof. Kerr. (But, Prof. Kerr’s posts are very long and detailed and I have only skimmed a small portion of them.)

    Q: is a 26 year old a kid?

  9. mespo727272 1, January 18, 2013 at 10:39 am

    Dredd:

    “I would say absolutely intentionally deceptive, malicious, and pure stinking propaganda.”

    *****************************

    Don’t you think it matters if she did, in fact, communicate her intention to ask for the 6 month sentence?
    ————————————–
    I think that is an “if” but his death is not an if.

    The kid did break in and steal 4 million documents that were someone else’s property. Those articles go for about $35.00 a pop.
    =======================================
    He had a right to all those documents, but did not want to download them one at a time (4 million x 30 seconds is 2 million minutes, 33,333 hrs., 1,389 days, 3.8 years).

    If he “broke in” that would be a state offense of breaking and entering, and the feds would not be in the case. No documents were stolen and carted away in an 18 wheeler … he copied them.

    If there was financial harm to JSTOR as you say (4 million x $35 is $140,000,000 – one hundred forty million dollars) why did they say in public that they had no problem with him?

    The issue here is his activism to protect the internet, which is one of the only places left to get to the truth of government propaganda and abuse.

    Let’s be real.

  10. If Ortiz really thought that six months was “an appropriate sentence that matched the alleged conduct,” then the piling-on of charges increased the likelihood of an inappropriate sentence. The piling-on of charges is not a reasonable action for someone who believes that six months was “an appropriate sentence.”

  11. DonS:

    “. She was dead set on destroying Swartz life, and perhaps making a name for herself, with Swartz as collateral damage.”

    *************************

    Those are some pretty serious charges that I don’t see supported by the facts. She has a duty to prosecute cases and to bring the charges she thinks appropriate. We can disagree with the exercise of her discretion but to ascribe intentional wrongdoing takes more than just knowing that the kid committed suicide.

  12. mahtso,

    Prof. Kerr wrote:

    “…my background … testified on these statutes before Congress, defended computer crime cases involving these statutes, and helped prosecute them …

    Hardly an unbiased spectator concerning the issues of this case.

  13. Dredd:

    I’m trying to be real. Do you disagree that the kid intentionally and purposefully broke the law? He had no right to those documents in the way they were procured and he did, in fact, break in by being in a non-pubic area without permission and opening that closet door. He said he had a moral imperative to break the law and thus his intent can’t really be questioned.

    Does one really have the right to break the laws he disagrees with and suffer no consequences? Do we support him (and decry his prosecutor) because of some articulable rational basis or just because we like Swartz’s cause?

    Does the force of the law apply to everyone or just people we don’t like?

  14. (My goodness … it would appear she has more sympathy for the Swartz family than even her husband possesses.)

    Poor, misunderstood, little Buttercup. Too late for Ralph though … he died in the ship’s dungeon.

    That’s all this was. A production mounted by Ortiz as a vehicle that would carry her to the governor’s chair. She was going to be a star.

    Smash!

    As for Heymann … oh well, going to have to find another vehicle to prove he’s just as tough as daddy.

  15. Our multi-tier “justice” system in action. Immunity and reward for the elites’ and politicians’ major crimes, and full-throtle prosecution for minor crimes for the unconnected.

  16. Pro Se Plaintiffs (without attorney) can file civil lawsuits, should they be able to file criminal cases – since the DOJ can’t prosecute petty things like international war crimes?

  17. http://www.forbes.com/sites/timothylee/2013/01/17/aaron-swartz-and-the-corrupt-practice-of-plea-bargaining/ Posted by AP 1/17.

    ““But none of these rights matter if the defendant never gets to trial. And thanks to the legal fiction that plea bargaining is a voluntary negotiation between the prosecutor and defendant, our justice system effectively gives people dramatically longer sentences for exercising the right to have a trial at all.

    Thanks in part to this kind of coercion, more than 90 percent of defendants waive their right to a jury trial. For the majority of defendants, then, the plea bargaining process is the justice system. As a result, prosecutors wield an immense amount of power with very little accountability.”

    AP’s posting from Timothy Lee bears repeating. Plea bargaining is just one of the ills of our criminal justice system. It represents a lop sided negotiation with the Prosecution holding all of the cards. Since going to trial takes such a long time any defendant without means has to either face the tension of charges hanging over them, or in some cases extended jail time while they await trial. The “either/or” presented them is the threat of maximum punishment if they don’t agree to the deal. From a prosecutorial standpoint it is a disincentive to build the best case and find the truth of guilt. The threat alone of maximum jail time makes even innocent defendants willing to just end the tension as quickly as they can.

    Ms. Ortiz’ statement today shows the duplicity which Timothy Lee calls out:

    “The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct — while a violation of the law — did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct — a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek — or ever tell Mr. Swartz’s attorneys that it intended to seek — maximum penalties under the law.”

    This key sentence above shows the problems with Ortiz protestations of good will:

    “Ultimately, any sentence imposed would have been up to the judge.”

    If Swartz had accepted the plea bargain he would have plead guilty and then the Judge could well have given him up to 50 years. For many Judges in our system today, imposing let’s say a ten year sentence, in lieu of a 50 year possibility would to their minds be deemed merciful and lenient. To someone, such as Swartz, the 10 years would seem like hell.

    Our justice system is broken in so many ways and while we must keep up the fight against the inequity and support the work of Jonathan Turley and many other brave lawyers, one could still feel despair at the prospect of it ever being reformed.

    Ms. Ortiz ended her statement with this:

    “As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.’
    http://www.huffingtonpost.com/2013/01/17/aaron-swartz-prosecutor_n_2492652.html

    I would translate that to mean” As prosecutors we must protect the interests of Corporations and Bureaucracies to control and benefit from the information available to average citizens. Decriminalize enforcement of
    of issues that should be decided by Civil, rather than Criminal Law!

    Mark, I disagree. JT’s characterization of Ortiz as “Javert” is actually more than fair. In truth he actually gives her more credit than she deserves. Javert was an honest man who believed that his only option was enforcing the law to the letter. Ortiz, history is of a political climber who enforces the law when it is to her personal benefit.

  18. mespo: “Those are some pretty serious charges [She was dead set on destroying Swartz life] that I don’t see supported by the facts”

    ——————————-

    Yes, very serious charges, and maybe not provable to the usual exacting legal standard. But get her before a special grand jury, as well as Heymann, and put all their minions under oath and you might be surprised. And the principles themselves might just squeal like a stuck pig about the guidance and coordination with central DOJ if they’re left swinging in the wind. I wouldn’t count on it though; it would depend on how well the higher ups could insulate themselves from blowback and find cushy sinecures for the perps. They’ve done that very successfully with regard to torturers and human rights abuses. .

    ———————–

    Ah yes, “intentional wrongdoing” vs “abuse of discretion”. Maybe just enough distinction to keep her from being disbarred.

    But, you know, when you’ve been watching the abuse of democracy and the manipulation of the legal system by the PTB for 50 years or so, you can just smell the rot, and smell the corruption, and smell the ethical discrepancies. Not since the civil right’s era do you usually find a body swinging from a rope to punctuate how far off the rails justice has gone. In this case we do.

  19. The technical background:

    If you access JSTOR (a non-profit org) from a computer network owned by a university that has purchased a subscription, you can access the site without a username and password from their network.

    Users of the service then have to agree to use JSTOR in a particular way when they log in to the site.

    A user can download one article at a time, but the JSTOR software is configured to block efforts to download large groups of articles.

    Swartz lived in the Boston area, and he had legitimate access to the JSTOR database using Harvard’s network, where he was a fellow.

    Swartz decided not to use Harvard’s network for what he had planned.

    Instead, he used MIT’s network across town.

    Swartz did not have an account or formal relationship with MIT, but MIT is known for having relatively open account practices.

    He did not have to “break in” anywhere for access to copy files slowly, that is, one at a time which would have taken 3.8 years.

    So, he used a laptop with valid wireless access to JSTOR and a program that downloaded more than one file at a time.

    They noticed and blocked that laptop so he got another one.

    They noticed and blocked his wireless access.

    He set up a non-wireless in a basement closet to do it.

    The indictment does not say he “broke in”, to the closet.

    Rather, it says “he did so by entering a restricted network interface closet”.

    All of this was done because they would not allow him to take a short amount of time downloading en masse as he wanted to.

    The JSTOR rules required instead 3.8 years to download all of those files.

    The closet entering episode is more likely, in and of itself, state law tresspass, not state law breaking and entering.

    This is not something that 35 years in prison for felonies fits.

    A reprimand and restriction from access to the JSTOR account and the MIT network for some time seems more reasonable IMO.

  20. I believe that the controversy surrounding this prosecution is in large part due to the fact that the crime was really political in nature, a form of civil disobedience intended to make a public statement about freedom and the internet. Therefore, there is strong disagreement among members of the public concerning whether the prosecution should have occurred at all. However, the moral force behind this type of act originates in the willingness of the actor to accept the legal consequences as part of his witness. Think of the Catonsville Nine. But that element appears to be lacking in this case, and the tragedy is enhanced because Mr. Swartz apparently suffered periodically from bouts of depression. Was the U.S. attorney’s statement self-serving? Yes. Could the suicide have been predicted? No.

  21. I think his suicide was predictable. There are many suicides of people facing prison time and from what I read DOJ knew he had expressed depression. DOJ basically wants people to commit suicide. The only reason why Ortiz is “speaking out” is that there has been so much publicity. I think DOJ employees have tried to get me to commit suicide.

  22. “Not since the civil right’s era do you usually find a body swinging from a rope to punctuate how far off the rails justice has gone. In this case we do.” (DonS)

    Right on target.

    It’s time to stop enabling these people. Their ambition is not healthy, it’s a disease. And let’s stop kidding ourselves … they are chosen for these positions by those who recognize their ambition for what it is and know exactly how to manipulate the disease.

  23. Mike A., I’ll just address one part of your statement:” However, the moral force behind this type of act originates in the willingness of the actor to accept the legal consequences as part of his witness.”

    This is true I think. Though I don’t think these severe charges could or should have been predicted, and I DO think the suicide, from what we are finding out, could have been.

    But to the point on accepting consequences: does this mean that the prosecutor should retaliate with all the force available, or pursue a reasonable course under the law? If the prosecutor engages indeterrence-based action with the larger agenda of discouraging a whole politically based movement (not to mention prosecutorial ambition), is this proper legal behavior, or is it use of the judicial process for patent political ends?

  24. To Jonathan Turley’s point – why didn’t the Bush OLC attorneys get prosecuted? They more than anyone knew they were committing war crimes! Think this is what they term a Kangeroo Justice System.

  25. Don S, I believe the answer to your question is no. Although I rarely handle a criminal matter, my experience is that overcharging is a fact of life. Most prosecutors are also politicians who are not above using their positions to enhance their future prospects.

  26. Look at DOJ’s Office of Professional Responsibility. DOJ sent out an email announcement recently saying they were going to fix OPR but they haven’t. OPR is supposed to be governed by Code of Federal Regulations 28 0.39 but I think that isn’t even referenced on the OPR website. That supposedly requires them to investigate complaints. On the OPR website they have an annual report showing that they supposedly investigate a couple of complaints of violations of duty of candor towards the tribunal — from rule 3.3 of the Rules of Professional Conduct.

    I complained to OPR that DOJ assistant U.S. Attorney David C. Rybicki misquoted DOJ’s Notices of in the Federal Register on three different dates in three different documents two of which were motions to dismiss and therefore that he committed the felony of 18 U.S.C. § 1506 – Theft or alteration of record or process; false bail. I was very specific:

    1) In DDC 09-0562, Rybicki wrote on page 23 of doc 8-1

    “The PTS is maintained to capture all information necessary to complete the administrative processing, housing, safekeeping, health care, and disposition of individual federal prisoners who are in custody pending judicial proceedings”

    The Federal Register for the PTS (Prisoner Tracking System) uses the phrase criminal proceedings not judicial proceedings but Rybicki went on to argue that the PTS doesn’t require a criminal proceeding. see Federal Register Vol. 69, No. 82/April 28, 2004 P. 23214

    2) On page 10 of Doc 16-1, DOJ’s motion to dismiss 11-01032, DOJ (Rybicki) pled that the Federal Register notices say that “JABS [the Joint Automated Booking System] is NOT limited to inclusion of records that were created incident to arrest for a ‘criminal charge'”

    we filed back

    “the Federal Register [notices for JABS] in 2001 and 2006 …list the “categories of individuals covered by the system” as “alleged criminal offenders who have been detained, arrested, booked or incarcerated.” In the footnote we wrote “Federal Register Volume 66, Number 78, 20478-0481”

    In DOJ’s response, document 31, page 3, Rybicki wrote “Nothing in that Federal Register Notice states, as Plaintiffs erroneously claim, that the JABS must be used only to process individuals arrested for criminal offenses”.

    So I filed in Court that this was a crime and now there is a question as to whether I can even get my timely Rule 52b motion docketed.

    I wrote to Robin Ashton and complained and she wrote back that she was assigning my complaint to a senior investigator William Birney. Then he emailed to me “it is the longstanding policy of the Office of Professional Responsibility (OPR) to decline to investigate litigation claims that have been raised, could have been raised, or still may be raised in litigation.”

    I filed an FOIA to get a copy of where that policy is recorded and they didn’t even acknowledge my FOIA.

    I search on USDOJ.gov for 18 U.S.C. § 1506 – Theft or alteration of record and couldn’t find any record that they ever prosecuted or investigated anyone for that.

    In my case there was a record of false bail too — I didn’t have a bail hearing and didn’t get an order issued under 18 USC section 1346 but DOJ entered non-existent charges that I violated bail conditions into the NCIC and they confirmed those charges and emailed that I should be arrested for that. DOJ also entered nonexistent criminal charges into the WI PTS records and then they twice withheld that record while claiming they had released all the records on me.

  27. This is a very sad case and I do believe that that Mr. Swartz knowingly broke the law and as Mike A. suggested, it was a type of civil disobedience action. If you break the law and you are not a banker or a corporate “person”, you have to expect to pay a price. I think the real devil in this situation is MIT which could have made this all go away by not pressing charges. Especially in light of the fact that they released the documents to the public after the fact.
    If the prosecutor misled the defense attorneys and the public with her latest statement, then she should be disciplined.

  28. “Does one really have the right to break the laws he disagrees with and suffer no consequences? Do we support him (and decry his prosecutor) because of some articulable rational basis or just because we like Swartz’s cause?
    Does the force of the law apply to everyone or just people we don’t like?”

    Mark,

    As you know there is an old tradition of civil disobedience, which is the breaking of law perceived as unjust and yes then suffering the consequences.
    Mr. Swartz was aware that there were consequences to his actions and indeed expected some retaliatory punishment. I decry his prosecutor not for prosecuting the case, but for purposely overcharging the case. Fifty years….really. A million dollar fine…..really. Now I understand that you might say this is merely standard procedure to obtain a pleas bargain and given today’s criminal justice system that is true. However, from my perspective the use of overcharging to obtain confessions via a plea bargain is a disgusting development that has entered into Criminal Law proceedings as a means of not only discouraging a defendant’s right to trial, but also of allowing prosecutions get away with cases where they may not have enough tangible evidence to be sure of conviction.

    The issue is a imbalance of power between prosecution and defense. What we know of this case clearly shows Swartz was being.threatened and harassed and we know the ability of prosecutors to harass is almost endless.
    While one can say the law, even if it is bad law, is the law and must be prosecuted is the principle, rather than the reality. Prosecutors constantly pick and choose between which laws they wish to enforce and who they wish to enforce them against.

    “The kid did break in and steal 4 million documents that were someone else’s property. Those articles go for about $35.00 a pop.”

    You can characterize it in dramatic elements that emphasize criminality like “break in” and “steal”, thus shading it with gross criminality, yet the facts are that at the center of this case is copyright infringement. The only reason the government is involved in what has always been a matter of Civil Law, is that industry lobbyists have pushed to have it criminalized in order to shift the financial burden of civil enforcement to the government. We have often discussed here the over criminalization of our legal system with crimes that shouldn’t be on the books. The essence of this prosecution was the thrust of an overall government initiative to protect the interests of a certain corporate segment.

  29. Sorry, mespo.

    I’m squarely with the Nal/Mike A. contingent on this one. Foreseeablity is not relevant to the outcome caused by a misuse of discretion although I’ll stipulate the actions of MIT were certainly a contributing factor in that abuse in the end the discretion is with the prosecutor.

  30. “Javert did not end well.”

    Bron,

    You’re correct and the reason was he saw the truth that the honest pursuit of his life which was justice, was corrupted by a system without mercy or hope of redemption. He couldn’t live with the contradiction

  31. As I scrolled by most comments, as yet, unread, this hopefully is not an already used point.

    A small but very painful point to the young man contemplating time:

    “That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation.”

    “six months in a low security setting…..”

    Which translated means practically no restraint for RAPE, both orally and anally. So say some. Thankful for not having been there. Maybe suicide was a better choice.

  32. “But to the point on accepting consequences: does this mean that the prosecutor should retaliate with all the force available, or pursue a reasonable course under the law? If the prosecutor engages in deterrence-based action with the larger agenda of discouraging a whole politically based movement (not to mention prosecutorial ambition), is this proper legal behavior, or is it use of the judicial process for patent political ends?”

    DonS,

    Asks a very pertinent question. My own answer is that this is improper legal and a misuse of the judicial process for political ends in support of relieving an industry of the burden of the cost of using civil jurisprudence.

  33. Although derived from the position of another post, in the spirit of peaceful exchange of ideas, no name will be mentioned. It is the position, not the person that disturbed me.

    How, in the face of all the many examples of blatant arbitrary (policy say some) “persecutions” and those equally obvious violations of the duty to prosecute egregious crimes by others, (take a breath), it amazes me that one claims that the practice of the DA is not given space for judgement.

    Talk about talking before thinking, or is it reflexive in all of us, ie speaking as our prejudices dictate.
    ==========================================================

    OTOTOT

    Just so you know, it is the hospital which has kept me away, and my attentions will be on maintaining my health, not visiting the exciting JT-world often.

    No stress say the docs, take your medicines and modify as told as needed. Talk about being told not to think about elephants (ie not to stress with distressing thoughts).
    Like when the nurse comes in, places her hand on your belly, and says: “Think of something else, I’m going to see how often you take a breath during a minute.” Try that. It can be done if you can think of something pleasant—not an easy task for a patient.

  34. An ironic note to end on:

    Minority persons (be they Sct justices or Federal prosecutors), having been allowed to join the majority and controlling faction, MUST toe the line OR suffer the consequences.

    True even for WASP etc participants—–but how even very much so for the newly admitted minority person.

    Is Obama an example of this factor, or just a pol like all others?

  35. Each and every prosecutor swears (or affirms) a supreme oath of office “to preserve, protect and defend the Constitution of the United States”. This oath supersedes any other loyalty and includes the Bill of Rights due process of law. So why does prosecutorial misconduct not void Sovereign Immunity protections for prosecutors? Unconstitutional actions are not official government business.

  36. I think Mark does bring up some good points for run of the mill prosecutions where the punishment is more commensurate with the violation but in this case I belive it was more of a railroading of this individual and that is as Otteray Scribe wrote in another thread one of the reasons this young man likely felt hopeless and that he did not deserve what happened to him due to the punishment being so overwhelmingly out of scope with the violation alleged.

    Prosecutions have been used occasionally to silence people or to attack them outside the scope of what is standard in the criminal justice system, such as Timothy Leary’s 30 year prison sentence for his Marihuana conviction and others such as this.

  37. mespo727272 1, January 18, 2013 at 11:36 am

    Dredd:

    Do you disagree that the kid intentionally and purposefully broke the law?

    The law he broke, from my reading of the indictment, would be misdeameanor trespass if there was fair warning by signs on the door of the basement closet or elsewhere to give notice.

    The indictment does not even allege “breaking.”

    So, punishment for that offence would not be unjustified in state court, if they prove facts beyond a reasonable doubt required under the state trespass statute.
    ———————————————————–
    He had no right to those documents in the way they were procured and he did, in fact, break in by being in a non-pubic area without permission and opening that closet door.

    He had every right to each and every document.

    The way he procured them was a violation of JSTOR download policy, but punishment for that is something JSTOR administers, not BIG BROTHER.

    The indictment does not say anywhere that he “broke in” to the closet, so the state charge of misdemeanor tresspass would be a valid prosecution if they can prove that trespass under state law happened.
    ————————————————————
    He said he had a moral imperative to break the law and thus his intent can’t really be questioned.

    He had no intent to enter the closet until the final episode.

    JSTOR granted him access rights to all their documents, MIT allows its network to be used by guests.

    JSTOR disallowed further access from the laptop when he downloaded more than one document at a time.

    That improper download does not violate federal law, it violates JSTOR download policy, and they did their typical reaction to stop it.

    Revocation of his access rights would be a more fitting result than BIG BROTHER coming along to bully him out of his mind.
    ————————————————————
    Does one really have the right to break the laws he disagrees with and suffer no consequences?

    What law did he break when he accessed files he legitimately has access to? No law.

    What law did he break when he tried to use software that did multiple downloads instead of one at a time? No law.

    What he violated was JSTOR one-file-at-a-time download policy, not federal boogie man law.

    He may have violated state law concerning trespass by entering the closet, however, I would have to know the facts about any warning not to go there:

    “Section 120. Whoever, without right enters or remains in or upon … buildings … of another … after having been forbidden so to do by the person who has lawful control of said premises, whether directly or by notice posted thereon … shall be punished by a fine of not more than one hundred dollars or by imprisonment for not more than thirty days or both such fine and imprisonment.”

    The statute requires notice before trespass will lie, and the penalty is not to be bullied out of one’s mind.
    ————————————————————
    Do we support him (and decry his prosecutor) because of some articulable rational basis or just because we like Swartz’s cause?

    JSTOR has the right to set their own download policy, however ignorant it may be, but I would not call it rational to charge him Mickey Mouse style with felonies that would bully scare the hell out of even a mafia figure.
    ————————————————————-
    Does the force of the law apply to everyone or just people we don’t like?

    The force of the law is its clarity and sensibility, the force of tyranny is bullying under the guise of law.

  38. Mike S:

    My problem with all this hyperbole is that we’re operating and rationalizing backwards and then basing it one unproven assumption. First, we look at the young man’s suicide (not his actions) and presume it was due to the overcharging. I say “overcharging” because I guess no reasonable person would conclude that some charges weren’t appropriate. Knowing he committed suicide and that we think it was because of the “overcharging” we then look to vilify someone for the charges. The obvious person is the prosecutor who without contest asked for a reasonable result. The case was presented to us as being one where the maximum sentence was requested. Facts have proven that to be untrue and I have no problem with a 6 month sentence in minimum security (it’s like a dorm) for this egregiousness Robin Hood-like offense.

    As I said, this is not linear logic but whirling emotion and sympathy. Something we decry when the other side does it but are oh so willing to excuse when our ox is in the fray.

  39. ID707:

    ““six months in a low security setting…..”

    Which translated means practically no restraint for RAPE, both orally and anally. So say some. Thankful for not having been there. Maybe suicide was a better choice.”

    ******************************

    Have you ever been in a low security federal prison? I have while representing the guard union. You have little to fear from accountants, lawyers and other white collar criminals placed there. It doesn’t mean lax security. it means low level security risks are housed there.

    Calm down. Every prosecutor isn’t an ogre and every defendant isn’t Martin Luther King,Jr. in the Birmingham Jail.

  40. Well said Dredd. I do remember reading that Aaron changed his user name and got new passwords so he could continue to download when Jstor cut off his current id user. No crime there either.

  41. messpo: 6 months,
    a million bucks that he didn’t have (spent all his money defending himself already)
    and did not want to earn (he was never motivated by money)
    and a felon for life.

  42. Skillful (?) argumentation? Clear prejudices exposed. Immorals and personality shown also. No names, just characteristics shown by people.

    But, WTF. this a place for celebrating freedom of speech, thought, etc.
    I use it as I like. So can others. Within the borders of non-abusive speech, of course.

    But as someone here said: Things expressed as facts must be subject to examination and eventual rebuttal. Opinions are opinions…..not facts unless proven. Haven’t seen any of the latter. Opinions and citation of statutes and abuse of the principles of justice…….lots of those.

    Has anybody done any minimum security time?

    Pronouncements as to what it is are therefore doubtful. Sodomy is but one, but a primary, way to express your dominance. If you are an open gay, the abuse must be even greater. I did not know anything about him AT ALL but his memorial site made that clear. Here minimum security is regarded as a prep school for a career in crime. Stats prove that. Probation under supervision works better, along with supportive programs.

    http://www.rememberaaronsw.com/

    Sobering reading for humans who thirst for truth. Not knowing of his sexual preferences helped me in judging his position in our system of injustice for all but the privileged, and the privileged get their bit in the form of non-prosecution.
    Talk about enforcing an oath. Ha, ha.

    He was used by the FEDs as an example for all those who appeal for our rights to information. Especially those who actively work for it.

    Some wife needs to talk with a person lacking in self-insight at times.

  43. Concerning the US Atty’s Office’s statement:

    One drawback to writing statements such as this in the manner crafted is they convey an undertone of Covering One’s Backside and being non-sincere in their sympathy for others. The style does not often resonate with ordinary people because it is not written in the same meter as letters of sympathy that are usually written by individuals.

    The lack of sincerety and CYA is usually how I take these type of letters. These type of statements all sound alike, it is just the particulars that are different. It strongly conveys to me a statement arrived at by some group of spin doctors mulling over every word. It is very corporate like and just as impersonal. It is one thing to say you care, but quite another to actually do so more than your own interests.

    While it may be intended to present a successful outcome in the legal world it works against the author in the court of public opinion.

  44. Dredd:

    I don’t think you get to have it both ways. He either violated the law or he didn’t violate the law. You say it’s clear that he didn’t — merely a technical violation of JSTOR download policy.

    However, If all is as you say, then Mr. Swartz had nothing to worry about and his suicide must then be due to some unfathomable defect in brain chemistry in his frontal lobes or some emotional pain unrelated to the unbuildable case (which surely his lawyers must have confirmed for him.)

    And if all that is so, how could the prosecutor possibly be morally, ethically, or even causally responsible for bringing an unwinnable case against a defendant assured of victory due to the utter lack of merit of the case and whose injustice was obvious to all?

    Sorry, Dredd but you argue your case much too well.

  45. A prosecutor in Lapeer, Michigan says, “No harm, no foul,” after a charter school took the National Rifle Association’s (NRA) advice and hired a armed security guard who promptly left his handgun unattended in a student bathroom.

    But by Wednesday, the school had admitted to The Flint Journal that the retired firearms instructor had made a “made a breach in security protocol” and left his unloaded handgun unattended in the school restroom “for a few moments.”

    “The school has put additional security procedures in place that follow local law enforcement practices and guidelines,” a statement from Young said. “At no time was any student involved in this breach of protocol. We will continue to work on improving school security.”

    The school director insisted that the incident had been reported to authorities, but said that any repercussions for the newly hired guard were “a personnel matter.”

    Lapeer County Prosecutor Byron Konschuh expected that no criminal charges would be filed because no one was harmed.

    He added that “[i]t’s almost like no harm no foul” because no students were injured in this case.

    Raw Story (http://s.tt/1yDxq

    So this security guy leaves a gun in a school bathroom, and because no one was hurt he is not prosecuted.

    No one was harmed by Aaron either. he returned the documents. No harm no foul, right?

  46. Darren:

    I guess we all start with the premise that anything you say is done to advance your cause. Even so, how do we ignore the fact that she shared the same concerns as we do about the possible disproportionate POTENTIAL maximum sentence and took steps to insure that would NOT occur? Is that the work of vindictiveness?

  47. shano:

    “6 months,
    a million bucks that he didn’t have (spent all his money defending himself already)
    and did not want to earn (he was never motivated by money)
    and a felon for life.”

    *************************

    Would you consider off to bed early and no dinner for shutting down an entire campus computer system and thumbing your nose at the law?

  48. Mespo, “My problem with all this hyperbole is that we’re operating and rationalizing backwards and then basing it one unproven assumption. First, we look at the young man’s suicide (not his actions) and presume it was due to the overcharging. ”

    Stripping away all your rhetoric and attribution of rationale to those of us who see gross misconduct at least, you come off as wanting to be the calm adult in the house and the rest of us are just emotional rabble rousers.

    Post hoc rationalization is not needed to deduce any number of theories , including massive overcharging. I have upthread also pointed out the accumulation of consequences that result from felony convictions that far exceed the bare bones matter of sentencing. I’m not going to ignore those facts even if you do.

    The prosecutors reasonableness was indeed not “without contest” as from what we know he played hardball to the max (“suicidal, eh, well we’ll put him in jail”, and stipulated that he was going to ask for 7 years minimum to be served)

    As for calming down, the only one who needs to heed that is ID707 for health reasons. You can assert that we are operating by “whirling emotion and sympathy”, but that assumption is no more verifiable than your claim of “linear logic”.

    ————————–

    For me, Swartz’ suicide is not a necessary conjunction with the outrageousness of the prosecutions behavior, though I think the connection is pretty obvious. It has merely been the vehicle for amplifying the visibility, stripping away the nasty cloak of hypocrisy in the US attorney’s office and case. His death is tragic. The prosecutions mis or malfeasance stands starkly on it’s own and, but for the suicide , would like have simply slipped silently of the screen along with other miscarriages of justice. It has already been neatly eradicated in the popular media; down the memory hole like ‘yellowcake’ and ‘WMD’, mushroom clouds and too big to fail.

  49. Messpo727272,

    Glad to hear from you. Seriously. You are one of the heavyweights here.

    Being a union representative on a visit is not the same as being someone interned. Agreed??? But you were there. So did you not hear tales of dominance, sodomy, sadism.

    This prosecutor is not my concern. The obvious corruption detailed here at JT’s by many blogs and even comments confirm that there is cause for worry over prosecutorial arbitrariness and its misuse previously discussed, not only in this blog, but many times. They have convinced me of the justification of the seriousness of the problem.

    It is not just the sodomy, it is the abuse from/by others, over and above that which the sentence authorizes in loss of liberty.

    You are there, so yours weighs more than mine in terms of evidence.
    But my fears stand unrelinquished, a word I borrow from his memorial site.

    You are welcome to say that I am overreacting. Others would and have said otherwise. When challenged, do you immy cast your opinions in concrete?
    But you are indeed skillful today, as always. :-)

    Hope you don’t feel that this was meant as a snark. Your response to me was not done so. Peace and respect reigns, as far as I know.

    You picked up the cast gauntlet. I aimed my thoughts and opinions at no one.

  50. DonS:

    One fundamental and simple question:

    Where is the proof of connection between his suicide and the “overcharging”?

    I don’t think anyone with any experience in the topic would deem the connection axiomatic.

  51. Mespo: “Where is the proof of connection between his suicide and the “overcharging”? ”

    I don’t find that salient to prosecutorial abuse. I thought I alluded to that.

    My own view of the connection comes from my reading of the psychological condition of Swartz, and about 30 years experience as a therapist which makes me petty tuned into what are called “stressors”. Swatz’ stressors were massive.

  52. DonS:

    “Stripping away all your rhetoric and attribution of rationale to those of us who see gross misconduct at least, you come off as wanting to be the calm adult in the house and the rest of us are just emotional rabble rousers.”

    ************************

    Read some of the commentary above about this prosecutor and you’ll see yours is fair statement. She’s a person too — as much as we’d like her to be a monster. She’s upset, your upset, hell, we’re all upset but the simple fact is that this kid got told “no” and proceeded anyway. Finding out, maybe for the first time, that his actions have consequences, he was stunned by the cold reality of it all.

    That’s just one of the tragedies..

  53. I disengage.

    Thanks to others, who perhaps were once engaged once upon a time were facing an immovable object in the form of a defense of drones.

    No names, just an exemplification. No names, only words, which like others are found in the archive here.

    Is this a defence of dominance, I ask as I exit for contemplation of my supper?

    Good advice should be heeded. I shall.

  54. shano:

    “Where is the proof that there is no “connection”?”

    ******************
    Semper necessitas probandi incumbit ei qui agit,

    The necessity of proof always lays with he who brings the charge.

  55. I am sort of with Mespo and sort of with Dredd. The documents, at least some [most?], were developed using tax payer money; as such they should belong to the tax payers [the people] and JSTOR should not make $35.00 per download for storing a document of probably no more than a few megabytes when I spend $60/year for gigabytes of storage at Carbonite. What a gig that is.

    These documents should be housed on a government website, like the Library of Congress or the National Archives, and should be accessible to all if they have been created using tax payer money.

    I would imagine not all of those 4 million plus documents were created using tax payer money. In those cases he is guilty of stealing private property at least in my opinion.

    “A man is not idle because he is absorbed in thought. There is visible labor and there is invisible labor.”
    ― Victor Hugo, Les Misérables

    A poem, a play, a song, a book, a scientific paper belong to the creator and in the case of government funding to the tax payers. Intellectual property is property and has the same protections, or should, as tangible property.

    Hackers cause a good deal of mayhem with business and private individuals and they increase the cost of products because of the money spent on internet security. My computer is my property and is housed in my home, in my opinion it is a violation of my rights to hack into my computer.

    Most of these kids would not steal a candy bar from a 7-11 or knowingly damage a persons property or violate their person in real life. But they do it with abandon in cyberspace.

    You do not violate individual rights in meatspace or cyberspace; if you do there should be consequences.

  56. DonS:

    I agree that overcharging does not need to be connected to a suicide to be wrong. Certainly the prosecutor could be criticized for overcharging here even if there were no suicide, but is it fair to say she intended to harass him into suicide?

    The most vituperative arguments here assert that the overcharging lead directly to Swartz’ s suicide and that was the intended and inevitable result. To make such a serious charge you need proof beyond, “Well, it’s obvious, isn’t it?”

    It’s really not obvious.

  57. Bron:

    “I am sort of with Mespo and sort of with Dredd. The documents, at least some [most?], were developed using tax payer money; as such they should belong to the tax payers ”

    ***************************

    I’m not sure that being created at taxpayer expense entitles any taxpayer to have it for free. Lest that be true you and I could head on over to Langley this afternoon for pass around the field in our own F-22 Raptor!

  58. The Honorable Eric Holder
    Attorney General
    United States Department of Justice
    950 Pennsylvania Avenue, N.W.
    Washington, DC 20530
    Dear Attorney General Holder:
    Like many Americans, I was saddened to learn last week of the death of Aaron Swartz. Mr. Swartz was, among other things, a brilliant technologist and a committed activist for the causes in which he believed – including, notably, the freedom of information. His death, at the young age of twenty-six, was tragic.
    As you are doubtless aware, Mr. Swartz was facing an aggressive prosecution by the Department of Justice when he took his own life. The U.S. Attorney’s Office for the District of Massachusetts accused him of breaking into the computer networks of the Massachusetts Institute of Technology and downloading without authorization thousands of academic articles from a subscription service. While the subscription service did not support a prosecution, in July 2011 the U.S. Attorney’s office indicted him on four counts of fraud and computer crimes, charges that reportedly could have resulted in up to 35 years imprisonment and a $1 million dollar fine. This past September, the U.S. Attorney’s office filed a superseding indictment charging Mr. Swartz with thirteen felony counts and the prospect of even longer imprisonment and greater fines.

    Mr. Swartz’s case raises important questions about prosecutorial conduct:
    First, on what basis did the U.S. Attorney for the District of Massachusetts conclude that her office’s conduct was “appropriate?” Did that office, or any office within the Department, conduct a review? If so, please identify that review and supply its contents.
    Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.
    Third, what role, if any, did the Department’s prior investigations of Mr. Swartz play in the decision of with which crimes to charge him? Please explain the basis for your answer.
    Fourth, why did the U.S. Attorney’s office file the superseding indictment?
    Fifth, when the U.S. Attorney’s office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz’s alleged conduct and its impact upon victims?
    Sixth, was it the intention of the U.S. Attorney and/or her subordinates to “make an example” of Mr. Swartz? Please explain.
    Finally, the U.S. Attorney has blamed the “severe punishments authorized by Congress” for the apparent harshness of the charges Mr. Swartz faced. Does the Department of Justice give U.S. Attorneys discretion to charge defendants (or not charge them) with crimes consistent with their view of the gravity of the wrongdoing in a specific case?
    I appreciate your prompt and thorough answers to these questions.
    Sincerely,
    JOHN CORNYN
    United States Senator

  59. One last, many times said.

    “Linear logic” means to my engineering mind, recognizing that 1+1=2.

    But more widely it can mean that one step follows the other, without the need for open-minded reasoning, or any insight or “outsight”. Defending a position changes to rigid resistance to offered facts, or to accepting the merits or even considering their merits.

    The world is instead a non-linear system, which even physicists and engineers must accept and contend with. Read about a recent champion, Benoit Mandelbrot, who worked for IBM for years—–ironical but true.
    Better take a look at Wiki entry “chaos theory”.

    Some take one path and fight a useless battle following it, IMHO.

  60. Dredd:

    Your central assertion is that he did not “violate the law” because he only breached JSTOR’s policies. But whether an intentional violation of a policy/contract on a computer can constitute a CFAA violation is a question that has currently split several Circuit Courts and dozens of district courts. You’re stating your interpretation of a disputed area of law without even acknowledging the existence of another common interpretation.

  61. http://takingnote.blogs.nytimes.com/2013/01/18/aaron-swartz-and-prosecutorial-discretion/?hp

    January 18, 2013,
    Aaron Swartz and Prosecutorial Discretion

    By LINCOLN CAPLAN

    Did his prosecutors go too far? Did their zeal border on bullying?

    “…there is no question that Ms. Ortiz went after Mr. Swartz very aggressively and that she had discretion to handle the case very differently.

    The best informed account I have seen is by Orin Kerr, a law professor at George Washington University who is an expert in computer crimes. The two parts of his analysis are online here and here.

    The legal charges in this case, he says, were “pretty much legit,” although he thinks the grounds for the basic felony charge of computer fraud are much too easy to meet.

    “Some kind of criminal punishment was appropriate,” Mr. Kerr wrote, because Mr. Swartz was “intentionally breaking the law in the short run to achieve a long-run goal of nullifying the protections of a set of democratically-enacted laws that he opposed.” The proper sentence was “the minimum punishment that was needed to persuade Swartz not to do this sort of thing in the future”—which might have been probation, house arrest or some time behind bars.

    Embedded in Mr. Kerr’s analysis was this critical observation: “What the prosecutors did here was what federal prosecutors often do.”

    Prosecutors have discretion not to pursue this kind of case at all. But the discretion they often exercise is far at the other end of the spectrum. They go after defendants tooth and nail, overcharging them from the abundance of criminal laws with sentences so severe and out of proportion to the crime that, as now happens in 95 percent of criminal cases, the prudent choice is to cop a plea.

    The Swartz case deserves singling out not only because of its tragic ending, but because the approach the government took is now the norm. For prosecutors, pursuing cases in this all-out fashion is their job. For defendants like Mr. Swartz, it is a brutal and dispiriting form of intimidation that hardly feels like justice.” (end of posting)

    ——

    “Did their zeal border on bullying?”(LC) If so, what impact did it have had on Swartz’s state of mind, given his history of depression?

    Repeating Lincoln Caplan’s words:

    “The Swartz case deserves singling out not only because of its tragic ending, but because the approach the government took is now the norm. For prosecutors, pursuing cases in this all-out fashion is their job. For defendants like Mr. Swartz, it is a brutal and dispiriting form of intimidation that hardly feels like justice.””

    It doesn’t feel like justice… because it isn’t.

  62. mespo:

    we arent trained pilots, we are not military personnel, we dont have a security clearance. But we do use roads paid for by the tax payer, we use bridges and wastewater treatment plants.

    But why not for things like art, scientific papers which arent dealing with defense or other security issues, etc. We get to use the Lincoln Memorial, the Washington Monument and the Smithsonian, I can also download papers from the FHA [federal highway administration] and the Navy and Corps of Engineers for free. These are good papers too, which I refer to in my practice for ideas and design methodologies.

    In my opinion any intellectual property paid for by the tax payers which does not have national security implications belongs to the people for free or for a very small fee.

  63. To me the decision of Aaron Swartz to commit suicide seems really logical. From what I read it does not seem clear at all that the maximum jail time he faced was only 6 months. Plus, he faced bankruptcy and serious problems with future employment / professional reputation because of DOJ’s actions. And if he took the plea the bankruptcy and employment problems would not go away. It would have been difficult for him to start a company and sell stock too.

    I also read recently that there is a lawsuit about the BOP’s refusal (I think it was BOP) to provide drugs and therapy to prisoners it is holding in solitary confinement or in 23 hour per day lock down.

    From what I’ve read people who are serious about suicide choose hanging as their method of choice.

    Plus, Swartz seems to have had strong opinions about public access to research and his suicide probably substantially advanced future public access to research and made his life significant and of service to others.

  64. Mespo,
    I needed you in May of 1970 when I was incarcerated, overnight in the Jackson County, Illinois jail for the charge of unlawful assembly!

  65. Aaron Swartz stood for something … freedom … pieces of the Net’s physical infrastructure, and much of what flows over it, are either property outright, or subject to property claims. Aaron was good at drawing distinctions between the two, and — far more importantly — building tools and services that made it easier to understand those distinctions and do more within the boundaries they provide. (Doc Searls)

    From the age of 14 and on he was a builder and in the 27 short years he was alive he accomplished incredible good. He harmed no one and took little for himself. He was instrumental to the defeat of an Internet censorship bill. His programming and technical skills were legendary. He was well known as a developer of Reddit, the inventor of RSS.

    His alleged crime involved no victims and no damages and the only entity that could be construed as a victim, JSTOR, refused to press charges.

    He’s dead now and we’re left with people like or Ortiz and Heymann and their enablers. Wow, aren’t we the lucky ones!

  66. Oh, and by the way, and of topic of course … Obama needs to get his library built so corporate donations will be needed.

    Wow … just think of all that free access we citizens will have to that info!

    Quick, smelling salts … I fear I may swoon.

  67. OS,
    Nothing that serious! I was arrested at a post Kent State protest for unlawful assembly. A crowd control ordinance that said it was illegal to be in a group larger than two people! I was acquitted, but I could have used Mespo!

  68. Please join us this weekend to celebrate the life, mourn the passing, and defend the legacy of Aaron Swartz.

    When: Saturday, January 19, 4:00pm to 6:00pm.

    Where: The Great Hall at Cooper Union. The Great Hall is located in the Foundation Building, 7 East 7th Street, between Third and Fourth Avenues in Manhattan. (Google maps link here)

    Who: Speakers include friends and loved ones of Aaron Swartz.

    Note from the organizers:

    “Aaron’s insatiable curiosity, creativity, and brilliance; his reflexive empathy and capacity for selfless, boundless love; his refusal to accept injustice as inevitable—these gifts made the world, and our lives, far brighter. We’re grateful for our time with him, to those who loved him and stood with him, and to all of those who continue his work for a better world.

    Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims.

    As we grieve, we are heartened by the outpouring of support from people around the country and across the globe who want to ensure the injustice that ensnared Aaron never claims another victim. Investigations have begun, a draft “Aaron’s Law” has been proposed in Congress–but the work has only begun.

    We hope a large turnout on Saturday will help demonstrate that Aaron’s story has sparked a sustained cry for reform that cannot be ignored.”

  69. The only offense was that of breaking into some closet and putting his device there. State charge. Feds had no reason to barge in. It is not like he rode around on a bike on steroids. He is not a kid. The 26th Amendment makes us all adults at age 18 and we can then vote and go to bars. He was 8 years beyond kiddom. The prosecutor did not make him kill himself. But they are responsible for putting the thought in his mind, the weapon in his hand. When their time comes, at the Pearly Gates, the interview will not go well. Ortiz is going to Hell. Nuff said.

  70. I’d like to project Schwartz on a larger map, which entails looking at our USA system.

    Is our system here on earth and on a smaller space such as the USA subject to chaos effects, one of which is pointed out in the quote below from Wikipedia???

    Both the impossibility of excluding noise which requires redundancy of information, ie possibly a parallel to the corrective factors in our society in the USA, see second sentence. (Gov and corporations, etc.who try to keep us on their track).

    And consider the “Noah” effect which says that catastrophic divergencies in non-linear systems (weather and particularly long term climate effects) will occur at some unforseeable time, and will be beyond influencing for a unknown interval.

    There are many scientists who try to avoid chaos inevitable presence in our Universe. Heisenberg undermined such ideas long ago.

    Schwartz then? He introduce what can become a factor (strange attractor in Lorenz theories) which will draw the system into previously unknown and uncharted regions (or orbits if you prefer).

    Schwartz was enabled by enablers of the internet, and met the peoples desire to know and to communicate. See Wiki List of Internet Pioneers. They were many, while DoD tries to hog the scene, We are many also, driven by our own needs.

    I think that Schwartz was persecuted as he was a threat by enabling us to act as factors, influencing far more than butterfly wings can or that which certain factors would permit us to influence..
    ====================================

    “In 1963, Benoît Mandelbrot found recurring patterns at every scale in data on cotton prices.[31] Beforehand, he had studied information theory and concluded noise was patterned like a Cantor set: on any scale the proportion of noise-containing periods to error-free periods was a constant – thus errors were inevitable and must be planned for by incorporating redundancy.[32] Mandelbrot described both the “Noah effect” (in which sudden discontinuous changes can occur) and the “Joseph effect” (in which persistence of a value can occur for a while, yet suddenly change afterwards).[33][34] This challenged the idea that changes in price were normally distributed. ……….
    Biological systems such as the branching of the circulatory and bronchial systems proved to fit a fractal model.” ref Wikipedia Chaos Theory.

  71. shano,

    Just little ol’ emotional me doing my bit to fight the crapola coming from the enablers.

    One thing I learned walking the civil rights path back in the 60’s and 70’s … if it looks like bullshit, sounds like bullshit, and smells like bullshit … it is bullshit.

  72. I have explained the leftist syndrome many times before, but it bears repeating. Leftists are notrious hypocrites. Thus, double-standards are de rigueur in the leftist playbook. You can see that in everything that they say and do.

    Jonathan Turley points out the double-standard that the CIA is not only permitted, but encouraged, to commit war crimes as well as federal crimes, but was, nonetheless, “obliged” to send in its government persecutors to maliciously destroy that Jewboy Aaron Swartz (Oops, Freudian slip, I meant to say “prosecutors”). Had Swartz instead been named Nidal Malik Hasan, the government would not have pursued the matter at all. Because leftists hate Jews and love Muslims (especially Islamo-Nazis), Obama also gets to work in an extra double-standard in this particular case.

    You can see that double-standard in Obama’s use of Warren Buffett to promote Obama’s tax schemes directed at the Middle Class, but disguised as an attack on the rich. Warren Buffett’s companies already owe more than $1.3 billion in back taxes, not including interest and penalties. But does leftist Obama direct his government prosecutors to nail Buffett for tax evasion and seize his assets? Of course not. They are planning on quietly settling the tax liabilities for pennies on the dollar. Do you like that double-standard?

    And, of course, as the NRA has pointed out, Obama thinks it’s just fine to have armed guards to protect all of the members of his family (at taxpayer expense, of course), but wants to take away all Americans’ right to bear arms in violation of the Second Amendment, if he had his way.

    That is always the way of the leftist: hypocracy, malicious double-standards, and heinous lying. Just another day in the life of a leftist with the power to actually carry out his megalomaniacal fantasies. Most of the people on this message board, including Jonathan Turley, are, ironically, leftists. So you have yet another double-standard. Most of you voted for Obama, yet you think that when Obama makes a leftist-based decision that in your heart-of-hearts know is wrong, you argue that you “disagree” with Obama. That is just more hypocracy. (You’re like those Germans who voted for Hitler and then said that you had no idea that he would actually carry out his promises of genocide.)

    The bottom line is that there is pleny of guilt for all of you leftists. But, I;m sure you’ll forget about all of that over the weekend, and more one to your next double-standard. Just another day.

  73. “Was Aaron Swartz’ Effort to FOIA Bradley Manning’s Treatment Why DOJ Treated Him So Harshly?”

    —————————————————

    “As I mentioned earlier, John Cornyn asked Eric Holder whether Aaron Swartz was prosecuted because of his FOIAs.

    [Cornyn] ” Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.”

    . . . . . .

    “But there’s a series of FOIAs Swartz submitted that almost certainly pissed off the government: he FOIAed tapes that would have had Bradley Manning, describing in his own words, how he was being treated at Quantico.

    . . . . . .

    “Suffice it to say that Swartz was pursuing the same information that got State Department Spokesperson PJ Crowley fired just as USSS intensified its investigation of him.

    “While I don’t think Swartz’ pursuit of details on Manning’s treatment would be the only reason they would deal with him so harshly, the Obama Administration clearly was dealing harshly with those who were critical of the treatment of Manning.

    http://www.emptywheel.net/2013/01/18/was-aaron-swartz-effort-to-foia-bradley-mannings-treatment-why-doj-treated-him-so-harshly/#comments

  74. I was going to post that entire thread, DonS.

    Anyone who supported Manning or Wikileaks in any meaningful way was always a target.
    Very good investigative reporting

  75. holy moly nick, you are nuts. this is not a right/leftist issue at all. Why bring up Aarons heritage at all. It is not relevant.

  76. Gene, Bron, et al., leftists cannot be convinced of anything. If it fits your double-standard agenda, you take it in. If not, you discard it. As I’ve pointed out, ad infinitum, leftists do not want to hear facts, evidence, support, or anything remotely empirical. Logic or reasoning play no part whatsoever in the thought process (if it can be called that) of leftists. Logic, reasoning, facts, evidence, etc. are anathema to leftists.

    Leftists have an agenda, and the end justifies the means of that agenda. But I don’t need to explain any of this to you leftists. You leftists know what you are, and you take great pride in your hypocracy.

  77. Shano, you must be a leftist, which makes you blind to the very point I made. Of course, Aaron Swartz’s heritage is relevant. Leftists like Obama favor Islamo-panderers and they typically hate Jews, mainly because the Muslims hate the Jews and they always pander to the Muslims; but also because Jews thrive in an environment of freedom, and leftists hate freedom and liberty with a passion. That’s why they want to kill the Second Amendment. That’s why they support the Islam-first Senator Hagel. Thus, in persecuting Swartz, but letting the CIA commit crimes at will, and persecuting a Jew, but letting Muslim terrorists into high positions in the military (like Nidal Malik Hasan) to commit murders, Obama does double duty in his double-standards. Maybe one day, if you give up your leftist agenda, you might be open to facts, logic, and reasoning. But that day is probably not coming soon for you. Ignorance is bliss for the leftist.

  78. But you are wrong, ralph. If Aaron was Mulsim, he would probably have been treated much worse, imho. no, just ramble on, not going to try to understand insanity or drunken babbling.

    But you will never know the true extent of my leftist agenda..bwahahahahahahahah

  79. yea, raf, mine is too far gone for antibiotics, bwhahahahahah

    Interesting comment from orion at fdl:

    in reading about u.s. attorney carmen ortiz, i read she was tight with holder.

    if so, she would have needed little instruction to ask heymann to double the charges (by “data sllicing” them), and then doubling the penalties and and doubling time up the river.

    the united states department of justice is so about justice under the emperor obama.”

  80. Comparing what Ralph says to logic is an insult to a very valuable tool, OS.

    It’s a fine example of the type of derangement that extremism in any position attracts and generates though. Binary thought at its most unattractive and destructive. He completely ignores facts and accuses others of his sins in a prime illustration of classic psychological projection. For example, a quite a few of the “leftists” here have spoken in defense of the 2nd Amendment and Hitler didn’t rise to power on the “promise of genocide”. Both assertions that can be disproved; one by evidence of the content of this blog and the other by simply knowing history. He raves about one polarity being the paragon of virtue and the other being the cause of all evil despite the fact that history shows that any position taken to the extreme ends badly. He acts as if there is not such thing as a moderate centrist solution to any given problem and that its his way or the highway. He’s a “true believer” in every negative sense of the word and as Hoffer describes.

    But logic? No. Ralph is like Bush. His logic is fundamentally broken by his innate biases. He has lost (if he ever had it) all critical perspective and with it his ability to think critically and objectively. He thinks with “his gut”. Which considering the end product of the gut and the end product of Raphie’s “reasoning” is poetically serendipitous.

  81. Lofgrens bill:

    “The government was able to bring such disproportionate charges against Aaron because of the broad scope of the Computer Fraud and Abuse Act (CFAA) and the wire fraud statute. It looks like the government used the vague wording of those laws to claim that violating an online service’s user agreement or terms of service is a violation of the CFAA and the wire fraud statute.

    “Using the law in this way could criminalize many everyday activities and allow for outlandishly severe penalties.”

    It invited “dangerous legal interpretation”, she said, which Congress had a responsibility to change.

    Her amendment excludes access in violation of an agreement, such as an acceptable use policy or terms of service agreement, with an Internet service provider, in cases where such a violation is the sole reason for determining that access to a computer is unauthorised.

    Lawrence Lessig, a friend of Swartz and Harvard law professor, gave the amendment his blessing. He wrote: “This is a CRITICALLY important change that would do incredible good.

    “The CFAA was the hook for the government’s bullying of [Aaron]. This law would remove that hook. In a single line: no longer would it be a felony to breach a contract. Let’s get this done for Aaron – now.”

    Marcia Hofmann, a senior staff attorney at the Electronic Frontier Foundation, welcomed the bill but said that, as it stood, it would not have prevented Aaron’s prosecution.

    In a tweet, she saidL “Kudos to Rep Lofgren for her swift response. But her bill wouldn’t have prevented Aaron’s prosecution under the CFAA or wire fraud law.” In another message, she said the bill needed strengthening before it went before Congress.

    The Justice Department’s prosecution of Swartz, which has been widely criticised since his death, is to be investigated by the House Oversight Committee.

  82. Blouise:

    “From the age of 14 and on he was a builder and in the 27 short years he was alive he accomplished incredible good. He harmed no one and took little for himself. He was instrumental to the defeat of an Internet censorship bill. His programming and technical skills were legendary. He was well known as a developer of Reddit, the inventor of RSS.

    His alleged crime involved no victims and no damages and the only entity that could be construed as a victim, JSTOR, refused to press charges.

    He’s dead now and we’re left with people like or Ortiz and Heymann and their enablers. Wow, aren’t we the lucky ones!”

    ********************************

    Do you think we evaluate Robin Hood by our feelings about the Sheriff of Nottingham? If Swartz was stealing money from the Little Sisters of the Poor to feed the hungry, would you say he’s bad? However, if he was stealing money from Bain Capital to feed the hungry would he be good?

    Can good people do bad in furtherance of the good? If they do, should they be punished for it?

  83. mespo,

    uh-huh … somewhat … maybe … sometimes … only during a blue moon … we’re talking fairy-tales, right?

  84. I know that I predicted, above, that prosecutor Ortiz will be sent to Hell when her time comes up at the Pearly Gates. But in thinking about it, that is not good enough. She needs to resign and go out to pasture and be a private lawyer in that great state that she comes from– doing divorces and bankruptcies. Pull out now Ortiz, like your father should have. Hmm. That could be a bumper sticker.

  85. Lawrence Lessig Responds to Aaron Swartz’s Prosecutor

    by Lorenzo Franceschi-Bicchierai

    http://mashable.com/2013/01/18/lessig-responds-to-aaron-swartz-prosecutor/

    Internet guru and academic Lawrence Lessig wrote a new blog post, sharing his feelings a week after Aaron Swartz’s death and addressing Swartz’s prosecutor’s statement.

    “Why was he being charged with 13 felonies?” Lessig asked.

    In an emotional post, Lessig confesses that he hasn’t slept since finding out about his friend’s death. “I have been frantically trying to explain, to connect, and to make sense of all of this,” he wrote. And even though there have been smiles in the midst of these sad times, that hasn’t been enough.

    “But these smiles have been drowned by endless sadness, and even greater disappointment — and none more pronounced than the utterly profound disappointment in our government, Carmen Ortiz in particular,” he wrote.

    Comparing Ortiz’s response to that of Massachussets Institute of Technology’s president Leo Rafael Reif, who announced he would open an investigation into the school’s role in Swartz’s prosecution, Lessig wrote:

    I hate my perpetual optimism about our government. Aaron was buried on the tenth anniversary of the time that optimism bit me hardest — Eldred v. Ashcroft. But how many other examples are there, and why don’t I ever learn? The dumbest-f…ucking-naive-allegedly-smart person you will ever know: that guy thought this tragedy would at least shake for one second the facade of certainty that is our government, and allow at least a tiny light of recognition to shine through, and in that tiny ray, maybe a question, a pause, a moment of “OK, we need to look at this carefully.” I wasn’t dumb enough to believe that Ortiz could achieve the grace of Reif. But the single gift I wanted was at least a clumsy, hesitating, “we’re going to look at this carefully, and think about whether mistakes might have been made.” […] Ortiz’s statement is a template for all that is awful in what we as a political culture have become.

    Lessig then goes on to argue that Swartz’s crime was political and “his harm was exactly none.” For that reason, he compares the treatment Swartz received to that of Martin Luther King Jr. Lessig notes that King was never convicted of any felony, and he was only charged with two “bogus” charges, of which he was acquitted. In Lessig’s eyes, Swartz received a far worse treatment.

    “This is a measure of who we have become. And we don’t even notice it. We can’t even see the extremism that we have allowed to creep into our law,” Lessig writes, before dealing a tough blow to Ortiz. “And we treat as decent a government official who invokes her family while defending behavior which in part at least drove this boy to his death.”

    Lessig also had a final message for Swartz. “I will always love you, sweet boy. Please find the peace you were seeking. And if you do, please find a way to share that too.”

  86. Repeating that last bit from the mashable link:

    Lessig also had a final message for Swartz. “I will always love you, sweet boy. Please find the peace you were seeking. And if you do, please find a way to share that too.”

  87. Ralph Adamo:
    Contrary to your earlier assertion, you have not pointed out anything “ad infinitum.” I must acknowledge, however, that you have made a Herculean effort to do so.

  88. > Nal 1, January 18, 2013 at 10:19 am

    > Great debunking of Ortiz’s self-serving statement.

    It seems that nobody here is asking the obvious question: Is Madame Ortiz going to be fired? Or, is she going to be counseled? or, (O ye mortals, abandon all hope) she’s going to get a promotion?

  89. On humanity, a big failure in Aaron Swartz case
    By Kevin Cullen | GLOBE COLUMNIST
    JANUARY 15, 2013
    http://www.bostonglobe.com/metro/2013/01/15/humanity-deficit/bj8oThPDwzgxBSHQt3tyKI/story.html

    If it was beyond scandalous that Aaron Swartz was facing 35 years in prison and millions of dollars in fines for downloading a bunch of obscure academic treatises without a subscription, it is beyond tragic that he is now dead.

    Swartz, 26, a computer prodigy and open Internet activist, hanged himself in his Brooklyn apartment last Friday. While we will never know for sure why, many who love him and know him best believe that prosecutors bullied him to the grave.

    The argument about whether Swartz should have been facing criminal charges in the first place is largely academic. It’s true that JSTOR, the subscription-service archive from which Swartz downloaded the articles, didn’t want him prosecuted. MIT, whose computer system Swartz used to download the information, was less forgiving.

    The argument about whether prosecutors should have been insisting that Swartz, who had written openly and movingly about his struggle with depression, serve at least six months in prison is not an academic question. It is a question about proportionality and humanity, and on both fronts the office of US Attorney Carmen Ortiz and the prosecutors who handled this case, Steve Heymann and Scott Garland, failed miserably.

    It is hard to know what prosecutors were thinking because they aren’t talking, they say, out of respect for Swartz’s family.

    Andy Good, Swartz’s initial lawyer, is ­alternately sad and furious.

    “The thing that galls me is that I told Heymann the kid was a suicide risk,” Good told me. “His reaction was a standard reaction in that office, not unique to Steve. He said, ‘Fine, we’ll lock him up.’ I’m not saying they made Aaron kill himself. Aaron might have done this anyway. I’m saying they were aware of the risk, and they were heedless.”

    Good says the hard-line attitude was not unique to his case, but the facts were. People who steal things usually benefit financially from it. Swartz downloaded the material because he believed that such information — in this case, much of it research underwritten by taxpayers — should be free to the public. He did it not to make a buck, but to make a point.

    Swartz and his lawyers were not looking for a free pass. They had offered to accept a deferred prosecution or probation, so that if Swartz pulled a stunt like that again, he would end up in prison.

    Marty Weinberg, who took the case over from Good, said he nearly negotiated a plea bargain in which Swartz would not serve any time. He said JSTOR signed off on it, but MIT would not.

    “There were subsets of the MIT community who were profoundly in support of Aaron,” Weinberg said. That support did not override institutional interests.

    Elliot Peters, the San Francisco lawyer who took the case over from Weinberg last fall, could not persuade prosecutors to drop their demand that Swartz plead guilty to 13 felonies and spend six months in prison. Peters was preparing to go to trial and was confident of prevailing.

    But the prospects weighed heavily on Swartz.

    “There was such rigidity with the people we were dealing with,” Peters said. “I couldn’t find anyone in that office to talk about proportionality and humanity. It was driven by a desire to turn this into a significant case, so that some prosecutor could put it in his portfolio.”

    Peters stopped short of blaming prosecutors for Swartz’s suicide.

    “I’m too much a student of human ­nature to ascribe a 26-year-old’s suicide to any one thing,” Peters said. “Only God and Aaron know why that happened.”

    But that doesn’t mean Peters is in a forgiv­ing mood. He got a voicemail from Heymann on Saturday.

    “I’m sure he was sincere,” Peters said. “But I can’t call him back. Either I’ll say something I shouldn’t say, or I’m going to act like I accept his condolences, which I don’t. So the only thing I can do is not call him back.”

  90. Retired Federal Judge Joins Criticism Over Handling Of Swartz Case
    By David Boeri January 16, 2013
    WBUR
    http://www.wbur.org/2013/01/16/gertner-criticizes-ortiz-swartz

    BOSTON — A prominent retired federal judge is adding to the chorus of criticism of U.S. Attorney Carmen Ortiz following the suicide of Aaron Swartz last Friday.

    Ortiz’s prosecution of the acclaimed Internet activist for hacking has drawn harsh comment from newspaper editorials, online users and a petition to the White House with 35,000 signatures.

    For 17 years, Nancy Gertner sat as a federal judge here in Boston. She says she was troubled by much of what she learned and saw from the bench before leaving in 2011. And she says Ortiz should not have prosecuted Swartz.

    “Just because you can charge someone with a crime, just because a technical crime has been committed, doesn’t mean you should,” Gertner said.

    “At the time of the indictment, [Ortiz] said, ‘Stealing is stealing.’ I saw that all the time when I was on the bench,” she said. “This is a classic line. Stealing an apple if you’re hungry is different than Bernie Madoff. It is obviously different.”

    Swartz allegedly logged onto the computer network at MIT as a guest, using an alias and downloaded four million journal articles from a website JSTOR. For that and various other alleged acts, like hacking into a protected computer, Swartz faced up to $1 million in fines and 35 years in prison.

    “Thirty-five years is the maximum someone could get in the case if the judge applied the maximum,” Gertner explained. “And this never happens.”

    Yet under the guidelines, Swartz was facing substantial time. His lawyer says the prosecution stated it would seek a seven- to eight-year sentence if Swartz was convicted.

    “And in the world of punishment, the prosecutor has enormous power and he has the enormous power to make you plead guilty and give up your rights,” Gertner said.

    This is where the judgment of prosecutors, and specifically the judgment of Ortiz, becomes a major issue, Gertner says. She learned on the bench that the power of prosecutors have increased because federal sentencing guidelines have decreased the powers of judges to exercise discretion.

    “So the prosecutor determines the charges and the punishment,” Gertner explained. “Again, once they start the process, once the indictment is brought, the potential for enormous punishment is there and although a judge has some discretion in sentencing, often what the prosecutor wants is what the person gets.

    “When that happens the prosecutor has enormous power and has to exercise that with some degree of fairness and judgment at that end,” she added.

    And this is what Gertner says Ortiz lacked in the case of Aaron Swartz. If the government was willing to recommend four months in prison, Gertner asks, why not two years in a diversion program which would have suspended and dropped charges if he committed no crimes during that period?

    “We don’t wreck your life with a criminal prosecution if we think this kind of attention drawn to what you did is all we need to do,” Gertner said.

    Unlike judges, a U.S. attorney’s decisions to charge or not charge are not public and can’t be reviewed, except when cases fall apart, like Swartz’s. And Gertner has a critical take on the prosecutor The Boston Globe named “Bostonian of the Year” in 2011.

    “If the U.S. attorney is going to take credit for every successful prosecution, not matter what the issues were, the U.S. attorney then winds up as ‘Bostonian of the Year’ for these prosecutions, then you know high-profile prosecutions are valued in the office,” Gertner said. “Mr. Swartz was a high-profile prosecution. Whether they are right is another question.”

    Ortiz has not commented on the case since Swartz’s death, stating she wanted to show respect for his family. But on an unverified Twitter account with her husband’s name, picture and identification as an IBM executive, someone was tweeting in defense of Ortiz on Tuesday, and criticizing the family of Swartz for blaming her. One tweet read:

    Truly incredible that in their own son’s obit they blame others for his death and make no mention of the 6-month offer.

    The account has since been deleted.

    Gertner says this case and the suicide of a troubled young man merits attention to the rest of Ortiz’s record.

    “What happens with the press, you don’t talk about the cases which really reflect this kind of poor judgment. You talk only about the cases that succeed,” Gertner said. “This is the example of bad judgment I saw too often.”

    When asked if she was referring to the bad judgement of Carmen Ortiz, Gertner responded, “That’s right.”

  91. Ralph Adamo,

    Spinning further Mike A’s comment:

    Ralph seems to attractive to a task such as Sisyphus was forced to, as it suits his non-working serial mind which is not engaged at all.
    It allows him to to stonk and talk contiuously, have max visibility, and what all trolls desire—–Max attention.

    Sunlight won’t make him go away, as he is a “black hole” troll.
    Great arguments which he comes with, they could reversed in all parameters and function eqully well for him.

    Back to bed. 6 AM. It was not a warning device which sounds when Ralph enters the scene.
    The subject, although very topical, will not be revealed, as don’t want to challenge fate by revealing it. I think that similar nightmares are occurring to many others at this time.

  92. OTOTOT

    I don’t think Swartz would mind my mentioning this. He was for informing the people, and so am I in this post.

    (Opportunities lost are often just that, lost. And now the House Repubs are said to have retreated. NYTimes covers that too.)

    Nate Silver analyzes. My question is when do stats, as here in simple forms, lie or is there an overriding proof in these, which motivates the simplification.

    http://fivethirtyeight.blogs.nytimes.com/2013/01/16/what-is-driving-growth-in-government-spending/#more-38257

    His proof (from a good gov spending stat site which is given)
    contains such items compared as entitlements vs military spending as percentages of the GDP.

    Seems fair, but is it????

    Let’s take a look at entitlements. Has the demographic profile changed during the measuring periods of decades?
    Has the services extended to areas not covered earlier and thus can be said to not properly reflect the results obtained. And some will ask in expressions of political ire, are we secretly socializing our country. Are those numerous here?

    Lastly while his brief presentation of military spending leaves a deal to be answered. This is naturally due to space limitations and the level aimed for in his article. Things do sound different when we can examine them in greater detail. We all agree on that principle, I hope.

    And overall, after looking at the historical view, concentrate on the period from 2000 to 2010, Watch the changes in inter-categories change relative to each other. Many reflect national priorities of political nature.

    Lastly, don’t forget that these stats are relative the GDP, not as percents of our fed budget each year. The military is noted in the text as 25 percent of the budget.

    And you all know where I stand on these issues.
    Less war, more for education, etc.

    http://fivethirtyeight.blogs.nytimes.com/2013/01/16/what-is-driving-growth-in-government-spending/#more-38257

  93. ONE DIRECTLY FOR AARON’S AND OUR SAKE
    ======================================

    I got the link from here, but I have now read it and feel we all should, for our own knowledge of him and the criminally done torture and persecotor actions he endured, and the worse ones he would face when convicted.

    I wish to recommend considering Ortiz lies, particularly the promise of light sentence being one which lawyers here can confirm—–no eludication coming from his lawyers.

    The DA held in his hands multiple threats yieldinjg almost lifetime incarceration, loss of rights, etc. She claimed that the minimum would be asked for if a deal were made. As I see it, but not knowing, how would mandatory guidelines have bound the judge to NOT allow lighter sentences?

    The Lessig blog witnesses what a great, important and benign figure that Swartz was.

    “They” knew this and took him out for that reason. He was certainly death-marked since some time.

    Many are waiting to see how Obama’s imperial powers to plan the assassination of all Americans as he deems necessary, will play out in the USA. Who gets droned first here???
    Well, there are other ways to assassinate, not only drones.
    Even arbitrary unmotivated use of prosecutorial powers will do the job.

    Maybe this is not done by Obama, but delegated to Holder, but I still suspect that “accusations and nominations” for a
    “take out of action”-decision comes with his fingerprints on it.

  94. mespo727272 1, January 18, 2013 at 3:29 pm

    Dredd:

    I don’t think you get to have it both ways. He either violated the law or he didn’t violate the law. You say it’s clear that he didn’t — merely a technical violation of JSTOR download policy.

    However, If all is as you say, then Mr. Swartz had nothing to worry about and his suicide must then be due to some unfathomable defect in brain chemistry in his frontal lobes or some emotional pain unrelated to the unbuildable case (which surely his lawyers must have confirmed for him.)

    And if all that is so, how could the prosecutor possibly be morally, ethically, or even causally responsible for bringing an unwinnable case against a defendant assured of victory due to the utter lack of merit of the case and whose injustice was obvious to all?

    Sorry, Dredd but you argue your case much too well.
    ==============================================
    You use “the law” for your justification.

    I quoted the facts I posted up-thread from the indictment and the post at Volkh by a professor who also prosecuted cases like Aaron’s.

    Use of the term “the law” is a mystical practice that attributes wisdom, intelligence, and superiority to an inanimate ideology.

    It is akin to “the law can do no wrong” which is akin to “the king can do no wrong” and “the pope is infallible“.

    In “the law” of war it waxes into “kill anything that moves” and has always produced extremes, including often extreme wrongs:

    The title is taken from an order given to the U.S. forces who slaughtered more than 500 Vietnamese civilians in the notorious My Lai massacre of 1968. Drawing on interviews in Vietnam and a trove of previously unknown U.S. government documents — including internal military investigations of alleged war crimes in Vietnam — Turse argues that U.S. atrocities in Vietnam were not just isolated incidents, but “the inevitable outcome of deliberate policies, dictated at the highest levels of the military.”

    Americans have long been taught that events such as the notorious My Lai massacre were isolated incidents in the Vietnam War, carried out by “a few bad apples.” But as award‑winning journalist and historian Nick Turse demonstrates in this groundbreaking investigation, violence against Vietnamese noncombatants was not at all exceptional during the conflict. Rather, it was pervasive and systematic, the predictable consequence of orders to “kill anything that moves.”

    Drawing on more than a decade of research in secret Pentagon files and extensive interviews with American veterans and Vietnamese survivors, Turse reveals for the first time how official policies resulted in millions of innocent civilians killed and wounded. In shocking detail, he lays out the workings of a military machine that made crimes in almost every major American combat unit all but inevitable….
    Robert McNamara: I was on the island of Guam in his [General Curtis LeMays’] command in March 1945. In that single night, we burned to death one hundred thousand Japanese civilians in Tokyo. Men, women and children.

    Interviewer: Were you aware this was going to happen?

    Robert McNamara: Well, I was part of a mechanism that, in a sense, recommended it. [regarding his and Colonel Curtis LeMay’s involvement in the bombing of Japan during World War II] LeMay said if we lost the war that we would have all been prosecuted as war criminals. And I think he’s right. He … and I’d say I … were behaving as war criminals. LeMay recognized that what he was doing would be thought immoral if his side has lost. But what makes it immoral if you lose and not immoral if you win?

    (On The Origin of The Bully Religion – 2, emphasis in original). It is historical reality that our secular religion is “the law“, and that it mystically represents the sacraments of The Universal Bully Religion which George Orwell wrote about.

    Even “the wisdom”, “the truth”, “the love”, and “the justice” are way too general to touch upon a particular case under our jurisprudence.

    However, I do concede that you are spot on when you use “the law” to explain the events of Aaron’s case.

  95. correction due to red letters not working on this site…

    mespo727272 1, January 18, 2013 at 3:29 pm

    Dredd:

    I don’t think you get to have it both ways. He either violated the law or he didn’t violate the law. You say it’s clear that he didn’t — merely a technical violation of JSTOR download policy.

    However, If all is as you say, then Mr. Swartz had nothing to worry about and his suicide must then be due to some unfathomable defect in brain chemistry in his frontal lobes or some emotional pain unrelated to the unbuildable case (which surely his lawyers must have confirmed for him.)

    And if all that is so, how could the prosecutor possibly be morally, ethically, or even causally responsible for bringing an unwinnable case against a defendant assured of victory due to the utter lack of merit of the case and whose injustice was obvious to all?

    Sorry, Dredd but you argue your case much too well.
    ==============================================
    You use “the law” for your justification.

    I quoted the facts I posted up-thread from the indictment and the post at Volkh by a professor who also prosecuted cases like Aaron’s.

    Use of the term “the law” is a mystical practice that attributes wisdom, intelligence, and superiority to an inanimate ideology.

    It is akin to “the law can do no wrong” which is akin to “the king can do no wrong” and “the pope is infallible“.

    In “the law” of war it waxes into “kill anything that moves” and has always produced extremes, including often extreme wrongs:

    The title is taken from an order given to the U.S. forces who slaughtered more than 500 Vietnamese civilians in the notorious My Lai massacre of 1968. Drawing on interviews in Vietnam and a trove of previously unknown U.S. government documents — including internal military investigations of alleged war crimes in Vietnam — Turse argues that U.S. atrocities in Vietnam were not just isolated incidents, but “the inevitable outcome of deliberate policies, dictated at the highest levels of the military.”

    Americans have long been taught that events such as the notorious My Lai massacre were isolated incidents in the Vietnam War, carried out by “a few bad apples.” But as award‑winning journalist and historian Nick Turse demonstrates in this groundbreaking investigation, violence against Vietnamese noncombatants was not at all exceptional during the conflict. Rather, it was pervasive and systematic, the predictable consequence of orders to “kill anything that moves.”

    Drawing on more than a decade of research in secret Pentagon files and extensive interviews with American veterans and Vietnamese survivors, Turse reveals for the first time how official policies resulted in millions of innocent civilians killed and wounded. In shocking detail, he lays out the workings of a military machine that made crimes in almost every major American combat unit all but inevitable.

    Robert McNamara: I was on the island of Guam in his [General Curtis LeMays’] command in March 1945. In that single night, we burned to death one hundred thousand Japanese civilians in Tokyo. Men, women and children.

    Interviewer: Were you aware this was going to happen?

    Robert McNamara: Well, I was part of a mechanism that, in a sense, recommended it. [regarding his and Colonel Curtis LeMay’s involvement in the bombing of Japan during World War II] LeMay said if we lost the war that we would have all been prosecuted as war criminals. And I think he’s right. He … and I’d say I … were behaving as war criminals. LeMay recognized that what he was doing would be thought immoral if his side has lost. But what makes it immoral if you lose and not immoral if you win?

    (On The Origin of The Bully Religion – 2, emphasis in original). It is historical reality that our secular religion is “the law“, and that it mystically represents the sacraments of The Universal Bully Religion which George Orwell wrote about.

    Even “the wisdom”, “the truth”, “the love”, and “the justice” are way too general to touch upon a particular case under our jurisprudence.

    However, I do concede that you are spot on when you use “the law” to explain the events of Aaron’s case.

  96. Following up on some of Dredd’s points:

    “Kill Anything That Moves”: New Book Exposes Hidden Crimes of the War Kerry, Hagel Fought in Vietnam

    http://www.democracynow.org/2013/1/15/kill_anything_that_moves_new_book

    “Two of the leading figures nominated to head President Obama’s second-term foreign policy establishment have their political roots in the Vietnam War. If confirmed, Chuck Hagel will become the first Vietnam War veteran to head the Pentagon, while John Kerry will helm the State Department after becoming one of the most prominent veterans to oppose the Vietnam War upon his return from duty. Although Vietnam is far behind them, Kerry and Hagel will now have to contend with the longest-running war in U.S. history: Afghanistan. We’re joined by Nick Turse, managing editor of TomDispatch.com and author of the new book, “Kill Anything That Moves: The Real American War in Vietnam.” The title is taken from an order given to the U.S. forces who slaughtered more than 500 Vietnamese civilians in the notorious My Lai massacre of 1968. Drawing on interviews in Vietnam and a trove of previously unknown U.S. government documents — including internal military investigations of alleged war crimes in Vietnam — Turse argues that U.S. atrocities in Vietnam were not just isolated incidents, but “the inevitable outcome of deliberate policies, dictated at the highest levels of the military.”

    ….

    NICK TURSE: Sure. The records that I found on Jamie Henry’s case really—they stuck with me, and I knew I had to find—find this man. They were several phone-book-sized files. A major investigation was done.

    And, you know, Jamie was a reluctant draftee, but he went to Vietnam. He was a medic. He saved a lot of American lives. And—but once he got over there, he saw things that really disturbed him. On his first day in the field, he watched as the point man, the lead man of his patrol, stopped a young girl on a trail and molested her. And Jamie said to myself, “My god, what’s going on here?” And day after day, he saw things that really disturbed him—a young boy who was captured and beaten up and then executed, an old woman who was shot down, a man who was used for target practice, a prisoner who was beaten and thrown off a cliff. On and on he saw these things.

    And it culminated one day on February 8th, 1968—that’s about a month before the My Lai massacre. His officer, while they were in a village, gave an order to kill anything that moves. And Jamie heard this over the radio, and he set out to go to the scene to try and stop it. Well, there were 20 women and children who were rounded up, and by the time Jamie got there, the men opened up on them, on—an automatic, with their M-16 automatic rifles, and killed them all. And Jamie watched this happen, and he told me that 30 seconds later he vowed that he would make sure that this story got out, no matter what it took. So, Jamie’s life had been threatened in Vietnam, so he kept his mouth shut ’til he got back home, stateside. But he immediately went—

    AMY GOODMAN: Told that he would have a bullet in his back, if—

    NICK TURSE: Yes, you know, his—he was warned when he—the first time he spoke up about brutality, that he’d better watch himself. And his friends came up to him after and said, “It’s so easy to be killed in a firefight, you know, look like you were killed by the enemy. You’d better shut up.” So, you know, Jamie did, but once he got back, he went and met with a Army lawyer. And this guy told him, “Look, there’s a million ways that the Army can make you disappear. So you better keep your mouth shut.” He went and spoke to an army criminal investigator, and this man threatened him. He went to a private attorney and asked for advice, and this guy said, “You should get some political backing.” He wrote to some congressmen, but no one wrote him back.

    So, he went public. He spoke out at the Winter Soldier investigation, among other public forums, on the radio. He published an article, had a press conference. But he just couldn’t get any traction. And eventually, you know, years later, he just gave up.

    What Jamie didn’t know was that the Army conducted a very thorough investigation, interviewed all the other members of his unit. They corroborated exactly what he said. And they even painted a more chilling picture, because some of them saw things that Jamie hadn’t. And—but Jamie didn’t know, until I called him up and then knocked on his door and brought those investigation files.

    AMY GOODMAN: Where did he live?

    NICK TURSE: He was in northern California. He was a skyline logger. And, you know, he just never knew that these records existed, that anyone knew that he was actually telling the truth.

    AMY GOODMAN: So when you brought him these phone-book-sized investigations into his allegations, what did he do?

    NICK TURSE: Well, I mean, he was shocked. He did feel vindicated. There was a little trepidation there, because, you know, it was a lot of years later to dredge all this up, and he was a little scared. But he told me that, you know, if it was right back then, then it was right to expose now. And it wasn’t easy on him. After the first day that I spent talking with him and going through the records, he told me that that night, after I had left, he went and sat in his easy chair, and he shook uncontrollably for an hour. He said, you know, “I had some sort of stress reaction,” he said. But he thought about it. He talked to his wife, and he said that this was—it was important to go on the record again and make sure that the people knew that this is really what happened in Vietnam.

    AMY GOODMAN: And you wonder where so many cases of post-traumatic stress disorder come from, that everything you learn is wrong in this country when you’re growing up, you then either commit, see others commit, are forced to cover up or choose not to cover up. Now, today in our headlines, we just read, this year, the worst year for suicides, almost one a day, and that’s just active-duty soldiers right now in the wars now. That doesn’t even include the record number of veterans who kill themselves. (interview continues)

  97. http://www.democracynow.org/live/democracy_now_livestream_of_aaron_swartz

    Democracy Now! Livestream of Aaron Swartz Public Memorial Service at Cooper Union

    This Saturday Democracy Now! will provide a special livestream as family and friends of Aaron Swartz gather at Cooper Union’s Great Hall in New York City to celebrate his life and remember their beloved friend, sibling, child, and partner.

    Speakers include Taren Stinebrickner-Kauffman, David Segal, Ben Wikler, Roy Singham, Doc Searls, Edward Tufte, David Isenberg, Holden Karnofsky and Tom Chiarella and other friends. OK Go’s Damian Kush will be performing at the service.

    Watch the livestream online at DemocracyNow.org.

  98. Ralph:

    “Gene, Bron, et al., leftists cannot be convinced of anything.”

    er, ah, I am not a leftist and most everyone on this site can attest to that. In fact they probably say that people like me cannot be convinced of anything.

    Not only is your logic poor, your reading skills and comprehension really must suck if you think I am a lefty. :) Or maybe you just skip what I post if that is case my apologies.

  99. What a shame that nobody in the Big O administration can find any crime done by anyone in the big financial houses on Wall street for the skimming of $ Billions that the taxpayers ended up bailing out.

    Is this how they prioritize the worst crimes with limited manpower? I’m sorry, I idid not mean to disparage real men, with this administration it is weasel power.

  100. Dredd.

    Magnificent rebuttal and revelation of “the law”‘s qualities as untouchable eternal truth. Just as you characterized it.

    Are there lawyers who are not aware of this. When do you wake up to the snow job you were given. After you lose a case to bought justice?

    Does the education not include a “Do not worship graven images, nor printed ones either.”
    Seems needed, or a refresher course for those who have drunk too much Koolaid.
    Obviously we are working for public health, They, wittingly or unwittingly, spread their pest to others, who might perchance see the light sometimes.

    Great use of material. Sources besides DemocracyNow, or Turse’s book?
    Skip the praise. Just the sources please. Just the facts we must swallow.

  101. I read the sentence:

    Do we really have a justice system for all?

    as if it said:

    “Do we really have a justice system at all?”

    Then when I read the subsequent sentence I got confused, went back, and saw what my eyes had done to change the run for me, and what my brain had done to make me hear what I thought I read.

    But that, for me, was the real question. If you compare prosecutions horizontally and across the country, you find that prosecutorial discretion coupled with prosecutorial misconduct combined with the vicissitudes of the public defender system combined with MONEY (and combined with MONEY and combined with MONEY and combined with MONEY and combined with MONEY) result in:

    We really do not have a justice system at all.

    Read it right and weep.

  102. “anonymously posted1, January 19, 2013 at 9:09 am

    Following up on some of Dredd’s points:

    “Kill Anything That Moves”: New Book Exposes Hidden Crimes of the War Kerry, Hagel Fought in Vietnam”””””

    http://www.democracynow.org/2013/1/15/kill_anything_that_
    ==========

    AP,
    I like your use of hitting key sources. Gives me hope for more will be found.
    You have an almost uncanny way of exposing bits of the “larger” puzzle, Or are these bits so common, that scanning using Google will do it?
    Why this question? Because am wondering if there is an ocean waiting to be drained or only a very small trickle. Important to know if I wonder where this CAN lead to.

    My comments on the truth:

    Truth is difficult to detect or recognize. It bears no uniform, has no brass band, bears shabby rags, not a silk suit, limps forward, some times swaying and lurching with little forward speed. Hidden in a forest of lies, it is hard to see. Its face lights up upon being recognized. As does our reflecting his rays.

  103. What Malisha says, but others too.

    There are many ways to describe corrupt justice. Hers were one. Dredd another, AP and Turse another.

    But hers is closer to what we and the system ARE, and WHY.

    And hers was the proof of what we who can read have observed.
    How easily expectations and prejudices can make us see what is not there.

  104. The fact that Swartz got US Courts angry with him by downloading and releasing PACER documents probably means that the judge would have given him the maximum possible sentence.

  105. idealist707 1, January 19, 2013 at 12:36 pm

    What Malisha says, but others too.

    There are many ways to describe corrupt justice. Hers were one. Dredd another, AP and Turse another.

    But hers is closer to what we and the system ARE, and WHY.

    And hers was the proof of what we who can read have observed.
    How easily expectations and prejudices can make us see what is not there.
    ================================================
    And what you say too:

    Truth is difficult to detect or recognize. It bears no uniform, has no brass band, bears shabby rags, not a silk suit, limps forward, some times swaying and lurching with little forward speed. Hidden in a forest of lies, it is hard to see. Its face lights up upon being recognized. As does our reflecting his rays.

    Like Mike S said in so many words, Turley Blog is a jewel with many facets that will flash light in your eyes from just about any direction you choose to view it from.

  106. To Ms. Ortiz, malarkey. You are a sorry excuse for a lawyer and a symbol of everything that is wrong with our criminal justice system that targets the weak and the poor then pushes them into jail without trial by overcharging and threatening them with unconscionable and unreasonable prison terms but allows real criminals: war criminals, torturers, corporate criminals, money launders to profit from their crimes and live large and free.

  107. Lots of good discussion.

    Malisha, I agree.

    ralph, you’re stereotyping: biased information applied to a large group of people who are actually rather diverse.

  108. I get so angry, inflamed at the system of injustice described so well in the blog and fhe comments. My Vesuvius runneth over, my Old Faithful too.

    I will repeat in short sentences the causes of my wrath:

    The EFFing system is devoted to everything but justice in accordance with the big C. For even the rich get unwarranted help by virtue of their wealth and connections politically, etc.
    The system as practiced assures that no one but the rich can afford to fight for the protections accorded by our big C.

    Even upper-middleclass or even higher defendants are helpless. You can be investigated for anything, by hidden information sources jealous of your progress, etc etc all in violation of the BoR protections.
    And for such base purposes, I feel nausea, and revulsion at the sight of this corruption.

    Is it true that as some say: “Let a bunch of rich men and other elites gather to extablish their own little fiefdoms, then what can you expect? Not the first beautiful declaration and promise of fulfillment through a compact, which was then a subject of undermining by its creators.

    So what say? Do we do as Jefferson said should be done every 20 years?
    Start over again?

    This strange creature, to use a recent thread: Not a miscarriage, but a beautiful foetus aborted by its fathers. Women were not consulted then, nor the womanly blind statue representing it.

  109. Otteray, your link to the Monty Python sketch is very appropriate, but not for the reason you purport to think. Arguing with the leftists on this message board is, in fact, much like arguing with the character that John Cleese plays (though without possessing any of Cleese’s charm, talent, and wit). I can relate to the character that Michael Palin plays where he says “an argument is a connected series of statements intended to establish a proposition. . . Argument is an intellectual process. Contradiction is just the automatic gainsaying of anything the other person says.” But at least Cleese’s contradictions are very funny. With the leftists, the failure to consider facts, evidence, logic, and reasoning–which typically takes the form of contradiction–is a very serious business. But certainly as mindless.

    Speaking of the mindless: Shano, do you actually “think” that the leftist Obama administration would persecute Swartz if he were a Muslim? If so, you are either a fool, an ignoramous, a dupe, or liar, or some combination thereof.

    In “Audacity of Hope” Obama wrote: “I will stand with the Muslims should the political winds shift in an ugly direction.” Page 261. That’s putting it mildly. Obama has stood by them throughout his entire lifetime, and he is their primary advocate in the USA. Obama has proven that with his support for the Muslim Brotherhood, not only with money and training, but with invitations to the White House. Thanks to Obama, Muslims have reached the highest levels of government. The government KNEW that “Major” Nidal Malik Hasan was having communications with Muslim terrorists, but he was not removed from the military. On the contrary, Hasan was protected by the US government. And under that government protection, he then went on to commit many murders. Obama’s selection for the head of the DOD is the Islam-first Senator Chuck Hagel, who attacked the “Jewish lobby” to the delight of Obama’s and Hagel’s prominent Muslim supporters. David Duke, the former head of the Knights of the Ku Klux Clan also applauded Obama’s decision to nominate Hagel. The only thing that Duke didn’t like was that Hagel still wouldn’t be able to cut off aid to Israel and increase foreign aid to the Muslim Brotherhood, as those decisions would not in any case be within Hagel’s purview.

  110. anonymously posted1, January 19, 2013 at 4:23 pm

    http://www.democracynow.org/ Public Memorial Service streaming live, now.

    STÍLL GOING ON. VERY MOVING.

    AND MASSIVE SOUND TECHNICAL ERRORS.

    When you got all on stage mikes turned on, when it should be the video of Aaron’s speech direct to output, IT IS NOT INTELLIGIBLE.

    Right Aaron.

  111. Shano: “oh STFU Ralph.”

    ME: Oh HAHAHAHAHAHAHA! OUCH OUCH I can’t breathe Oh NO I fell on the floor laughing and now I can’t reach my beer! (@ Shano: Thanks, I needed that.)

  112. Shano, Malisha: I’m done. You’ve been thoroughly squelched. I’ve proven my point. You’ve been confronted with facts and evidence and you cannot respond to those. Stick with what you know best: mindless, inane, artery-clogging leftist drivel.

  113. http://harpers.org/blog/2013/01/carmen-ortiz-strikes-out/

    “The flaw in Ortiz’s posture has been laid bare by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In United States v. Nosal, he dismissed the theory Ortiz used to go after Swartz, saying it would potentially criminalize “everyone who uses a computer in violation of computer use restrictions — which may well include everyone who uses a computer.” Kozinski was born and raised in Communist Romania, and knows a thing or two about totalitarian states — and he knows that prosecutorial overbreadth is their leitmotif. If conduct can be charged so broadly as to cover virtually everyone, then prosecutorial discretion effectively becomes a license to persecute anyone who stands in the state’s way. Radley Balko and Clive Crook have each focused on this concern about the Swartz case. I share the essence of their analyses.

    The question remains why the DOJ targeted Swartz to such an extent. The DOJ insists that the case grew entirely out of his prank at MIT, and the timeline supports this claim. However, those facts supply no meaningful rationale for their prosecutorial vendetta. On the other hand, Swartz aggressively opposed theories, pioneered by prosecutors like Heymann and Ortiz, that were designed to make the DOJ into a cyberspace police force with power to act against anyone who provoked their concern. He provided articulate, effective opposition, and regularly trumped DOJ initiatives in forums that offered fair debate. His vision of cyberspace placed a premium on the empowerment of individuals and their free access to information — offering an essential updating of the Enlightenment values of the American founders that was sharply at odds with the Justice Department’s schemes. The DOJ values secrecy over publicity, the property rights of corporations over the rights of authors and inventors, and puts a premium on the power of the state to silence voices on the Internet that it views as a threat. Their objective was clearly not to kill Swartz, but they did want to silence him by stigmatizing him and locking him away in prison.

    Ortiz’s refusal, even at this late point, to come to terms with her gross misconduct is hardly surprising. She is after all a political figure with political aspirations, and the rules of American politics dictate that one should never admit a mistake, instead pushing blame onto others — here, an Internet prodigy who can no longer defend himself. But it does reinforce her image as a bully who has abused her power and is incapable of reexamining serious mistakes. Past experience suggests that the DOJ itself will behave the same way — closing ranks behind her, hiding the identities of those who collaborated in the tragedy, and concealing vital evidence. For all these reasons, an aggressive, thorough, and public congressional probe with bipartisan support is the necessary next step. Ortiz and her collaborators in this tragedy have serious questions to answer.”

  114. As I understand the corrupt US system of plea bargaining, the offered pleas normally consist of reduced charges and/or fewer counts, however in Swartz’s case the offered plea was the same 13 felonies with which he had been charged but with the stipulation that he only serve six months in prison. I have a question:-

    If the prosecutors only asked for 6 months, would the judge be actually bound by this or could he say “but he has pleaded guilty to 13 felonies, 6 months for this is absurdly low, I will give him seven years or 35 years which the statutes allow”?. In other words if Swartz had accepted the plea, could he have found it to be a bait and switch. and if not why not?

    A person who believes him/herself innocent is extremely unwise not to take the offered plea as the alternative of going to trial carries a high risk of conviction and copping the draconian sentences. The fact that someone is innocent does not mean that he/she would prevail at trial as the jury comes with a presumption that the authorities would not have brought the charges if they were not warranted and that it is the duty of jurors to help the authorities punish the bad guys. (The presumption of innocence does not exist in US courts or if it does only rarely). I believe federal prosecutors win more than 90% of the cases that they take to trial so no matter how weak some lawyers consider the charges against Swartz he would have risked a lot going to trial, assuming that is he had the resources of extreme wealth necessary for presenting an adequate defense, however his defense so far had exhausted his money.

    It is not possible to know whether depression played a significant role in his decision to hang himself. As I see it his predicament would have caused depression absent any preexisting medical cause. In any case a rational person in his situation might have come to the conclusion that suicide is the only defense and see death as a lesser evil than bearing the stigma of 13 felonies. Swartz may have seen that for him having his particular value system death was a lesser disaster than becoming a 13 fold felon.

    Regardless of how low the prison sentence, becoming guilty of 13 felonies disables ones future prospects. Many jobs are closed either explicitly by professional licensing laws or by business’ hesitation to hire felons. What would be the probability that he would be banned from using computers and the internet in which case his talents would be useless. Even if he were not banned from computers and internet, the felonies would make it much harder for him to raise capital to exploit any ides that he may have.

  115. WikiLeaks says Aaron Swartz may have been a ‘source’

    Group says the late tech activist talked with editor Julian Assange and may have been a WikiLeaks source. But it doesn’t offer any details or corroborating evidence.

    by Edward Moyer
    January 19, 2013 10:43 PM PST

    http://news.cnet.com/8301-1009_3-57564881-83/wikileaks-says-aaron-swartz-may-have-been-a-source/

    Excerpts:

    WikiLeaks said late yesterday that recently deceased Internet activist Aaron Swartz assisted the organization, was in contact with Julian Assange, and may have been one of the organization’s sources.

    Reached in Iceland on Saturday evening, California time, WikiLeaks representative Kristinn Hrafnsson confirmed to CNET that the tweets were authentic but declined to elaborate.

    The ambiguous WikiLeaks tweets have prompted speculation about what the group was trying to suggest. The Verge’s Tim Carmody wrote that “the aim of these tweets could be to imply that the US Attorney’s Office and Secret Service targeted Swartz in order to get at WikiLeaks, and that Swartz died still defending his contacts’ anonymity. Taking that implied claim at face value would be irresponsible without more evidence.” And blog emptywheel wrote that if true, the tweets “strongly indicate” that “the US government used the grand jury investigation into Aaron’s JSTOR downloads as a premise to investigate WikiLeaks.”

    Until WikiLeaks elaborates on what it intended to say by highlighting the Secret Service’s involvement, and provides supporting evidence, it will be difficult to draw any conclusions.

    After confirming the authenticity of the tweets, WikiLeaks representative Hrafnsson asked that we contact him later with any further questions. We’ll do that and let you know what we find out.

    It seems the only thing that’s now certain is that criticisms of, and speculation about, the government’s handling of the Swartz-Jstor case isn’t likely to die down overnight.

    (CNET’s Declan McCullagh contributed to this report.)

  116. Shano, Malisha, GeneH,

    Thanks. He was waste of energy. But he is worth a sentence more, since he provided such fine support for it.

    Self-delusion is worse than illusions. And when your thoughts are mostly stale soundbites…….!

  117. Thanks for raising my earlier question to Barkin’Dog who never replied about guideline restraints leaving no choice in spite of prosecutor deals.

    And thanks for the chance to speak again on the merits of actual suicide vs arranged one,

    Alive, Aaron was a threat. A MAJOR ONE.
    Incarcerated, his martyrdom, would have provided energy to a contra-movement for his freedom, and to implementation of his ideas.

    A short sentence would actually be to the advantage of the government. No time for counter-movements to develop, and leaving him marked.
    But they and we know that Aaron would find away to nullify those effects, and would return in some form repulsive to their motivations.

    So death was best. A dead hero, with conventional re-writing of his story by TPTB and with media’s fawning help, would not be long remembered.

    Cutting off the head of a movement is used since ancient times. Replacing the hero is very difficult even if one searches outside the lineage, family or otherwise. Many examples.

    If they could drive him to despair, fine. If not, it could be arrangee as I named before.

  118. This news just in from the Dog in Heaven via the Dogalogue Machine. Saint Peter has, in a rare move, sentenced Prosecutor Ortiz to Hell, subject to a lifetime period of probation. There are terms of probation which remain to be announced but there was mention of her being required to join a convent and say so many hail Mary’s each day. We will update you when we learn more. Ortiz is only the second living human to be sentenced to Hell during their present tour of duty on Earth.

  119. Here’s a Marcy Wheeler post on the Wikileaks angle:

    http://www.emptywheel.net/2013/01/19/the-fishing-expedition-into-wikileaks/

    Marcy has been digging pretty deep into government targeting of Aaron Swartz and, if there is any justice left in the system this should spell scandal. I see Zoe Lofgren is proposing a revision to the relevant laws needed to prevent the excess of industry and governmental persecutions. ( http://thenextweb.com/us/2013/01/19/rep-zoe-lofgren-reforming-the-computer-fraud-and-abuse-act-will-take-a-very-long-time/ ) I hope it’s not just the usual political posturing but when it comes to protecting and advancing the rights of progressive/dfh’s (i.e., anyone not firmly deferring to the government line) the answer is usually just a meaningless rhetorical gesture. She’s already saying it’s going to take a ‘long time’ to rewrite the law. Why? Get some non-industry flack to do the job and the time frame could no doubt be vastly compressed.

  120. I’m just sour today:

    At Wikileaks (possible) opportunism, to awaken us and get Assange out of his no pussy confinement.

    At Sen Cornyn, once judged the most conservative senator of all, doing his hiTgh wire act saving us from the gov’s evil hand.
    And all other pols. Why should or do we believe in our pol system.

    At Congress who they created, empowered, and fine-tuned this skitty repression and extorsion racket.

    The only thing to be glad for is that the stupid cop met a cool guy who is still cool now, just doing and enduring his torture time.

    I still prefer a little graft on the side to the cop, more practical—-but there are higher?, no lower goal to be attained which requires max bureaucracy and sham justice proceedings.

    Yackety yack.

    Here’s a little help from a friend.

  121. Idealist contributed:
    Here’s a little help from my friend
    < link to MC Hammer Video >
    ~+~

    How about this to cover two topics at once:

  122. I rarely find myself in agreement with John E. Sununu’s opinion pieces in the Boston Globe. Today I did.

    *****

    A crisis of values at MIT
    By John E. Sununu | Globe Correspondent
    January 21, 2013
    http://bostonglobe.com/opinion/2013/01/21/crisis-values-mit/WxSOroQauc231s9q4phwtM/story.html

    Excerpt:
    When I was an engineering student at MIT in the 1980s, a quarter century seemed like an eternity. College students focus on the here and now — a class, a grade, a night out — not on what they might be doing at 50. (Believe me: The idea of a regular Globe column was far from my mind at the time.)

    To no surprise, the years that have passed since I graduated in 1986 feel shorter when glimpsed in a rearview mirror. But the Massachusetts Institute of Technology that has emerged in coverage of Aaron Swartz’s suicide is hard for me to recognize. The school, remembered by many alumni for its encouragement of the creative and unconventional, is said to have taken a hard line toward Swartz, an activist for digital freedom, who used the institute’s facilities to download millions of academic journal articles.

    After Swartz returned the documents and apologized, JSTOR — the subscription service that was hacked — dropped a civil case against him. MIT, however, remained silent. Swartz’s family faulted the institute for failing to back him. One of his lawyers went farther, telling a Globe writer that the school had stood in the way of a plea deal that would have kept Swartz out of prison. Unfortunately, MIT still isn’t talking.

    This approach looks remarkably self-centered and bureaucratic for an institution that once took pride in a long history of inspired pranks, the most celebrated of which rarely fell within the strict bounds of legality. During my freshman year, a determined MIT fraternity broke into Harvard Stadium — repeatedly — in order to bury a homemade device manufactured from vacuum cleaner parts and a weather balloon. The ensuing inflation in the midst of the 1982 Harvard-Yale game became an emblem of both the school’s technical prowess and its wit. Photographs of the moment adorned official MIT publications for years.

    Swartz wasn’t a student at MIT, and his handiwork carried a political message. He believed that academic articles should be available digitally for free. But in the end, accessing the computer system “without authorization” was nothing more than a stunt. The real distinction was MIT’s passive reaction. That gave the US Attorney’s Office in Massachusetts the cover to pursue the case with vigor — which it did, despite being informed that Swartz’s fragile mental health placed him at risk for suicide.

    This case has exposed a trend that should bother us all: the loss of common sense and good judgment as a basis for resolving differences, and the unrestrained use of prosecutorial power. The last “offer” issued by the US attorney demanded six months of jail time. Has anyone ever served a day for unauthorized use of MITs computer facilities? I doubt it — and certainly not someone who served as a Harvard fellow, as Swartz did.

    Whereas the institute once would have taken pains to find an appropriate and internal resolution to violations of regulations — and even laws — within its campus, it chose to defer to others. That reaction isn’t unique to MIT, but rather a reflection of gradual changes in accepted cultural and government behavior over the past 20 years. Today, regulators and prosecutors regularly use their power to impose agreements, plea bargains, and consent decrees with little judicial review. They threaten the maximum penalty allowable — regardless of whether a rational mind would consider it fitting for the infraction — in order to gain an outcome that enhances their stature or pleases their political base.

  123. Ortiz is done:

    Just days ago, speculation was rampant. Gov. Carmen Ortiz? U.S. Sen. Carmen Ortiz?

    Well, that’s all over now.

    U.S. Attorney Carmen Ortiz is done. Finished. Forever linked to bringing the full and frightening weight of the federal government down upon a 26-year-old computer genius — and a suicide risk.

  124. Taren Stinebrickner-Kauffman (at Aaron’s public memorial service):

    “Last Friday he faced the prospect of yet another three months of uncertainty and ups and downs and being forced by the government to spend every fiber of his being on this damnable, senseless trial, with no guarantee he could exonerate himself at the end of it. He was so scared and so frustrated and so desperate and more than anything, just so weary. I think he just couldn’t take it another day … Aaron would have loved to have been here because out of the last week and out of today, Phoenixes are already rising from his ashes. The best possible legacy for him is for all of us to go out from here today and do everything we can to make the world a better place.

    A thousand flowers are blooming in his name already. Some of the most important that we’ll be fighting for — David Siegel, and many others — are organizing around: the U.S. attorneys office must be held accountable for its actions.”

  125. Has everyone missed the reason behind the haranguing is that he had links to Julian Assange….. Our covert government will stop at nothing to get them…. And to think Mike S posted about Eugene McCarthy…. Have we really advanced far?

  126. AY,

    Reposting:

    anonymously posted 1, January 20, 2013 at 7:53 am

    WikiLeaks says Aaron Swartz may have been a ‘source’

    Group says the late tech activist talked with editor Julian Assange and may have been a WikiLeaks source. But it doesn’t offer any details or corroborating evidence.

    by Edward Moyer
    January 19, 2013 10:43 PM PST

    http://news.cnet.com/8301-1009_3-57564881-83/wikileaks-says-aaron-swartz-may-have-been-a-source/

    ====

    And to think Mike S posted about Eugene McCarthy…. Have we really advanced far? -AY

    No. No, we haven’t.

  127. Triumphant motel owner slams Carmen Ortiz

    A Tewksbury motel owner who just beat back U.S. Attorney Carmen Ortiz’s three-year bid to seize his business has become the latest critic to accuse the Hub’s top fed of prosecutorial bullying.

    In a written decision after a November trial, U.S. Magistrate Judge Judith Gail Dein dismissed the government’s forfeiture action, ruling yesterday that Caswell, “who was trying to eke out an income from a business located in a drug-infested area that posed great risks to the safety of him and his family,” took all reasonable steps to prevent crime.

    “The Government’s resolution of the crime problem should not be to simply take his Property,” Dein said in her decision.

  128. This is only indirectely related to the topic but it might give some who haven’t been directly involved in criminal justice a bit of a different perspective on things.

    When I worked for the sheriff’s office it was a regular event where I would have this happen. I usually worked night shift and it often happened where I came along a person, (either on a traffic stop where they had an outstanding arrest warrant, a DV assault case, a DUI or whatever) and arrested them, booking them into jail about a half hour before shift change.

    After I got home, occasionally I would lament on how different my and the man I arrested events unfolded. An hour before I nicked the guy I would venture to say he probably didn’t think he would be in jail, his life somewhat upheaved, while I knew that I was going to get home just like any other day. While I undressed and put away my equipment to get ready for bed I thought to myself how rather bizarre this was. I was going to be in my comfy warm bed, at home with a good night’s sleep ahead of me. The defendant at the same time was made to dress in some ill fitting jumpsuit and spend probably a sleepless night in some noisy bunk with derelicts and others making it worse.

    I will say for better or worse I seldom took any pity to those I arrested, I didn’t arrest anyone I didn’t think guilty and needing to be booked, but in the last few years I worked the road I began to think about the duality of the situation in the previous paragraph. I get to go home to a warm bed, the other person goes to a very bad one. Putting people there was a regular part of my job but the other person gets an upheaval.

    I say this because it demonstrates, at least to me, how easy it can be to be caught up in the regularity of having power over people where they can be subjected to very bad ordeals. Those in power (police / prosecutors / judges / even defense attys) can easily lose sight of what the defendant is going through while sitting in jail or even being free and having to worry about going to jail later. As a result it can be the case where we do not recognize what is happening to this person because we are so removed. And it can make is appear to be very indifferent to them because the reality is that the system does not make it our jobs to be concerned with them once we have completed the task at hand.

    But like to some degree any of us in the Criminal Justice system can be judged harshly. This prosecutor is not the personification of evil, though she certainly had some questionable prosecuting decisions as some have legitimately complained about. But I and my fellow at least former cops can attest to we are not any different.

    I have either directly or as a participant made thousands of arrests. I had to be somewhat indifferent to the consequences of the defendant’s actions. I could only be civil and fair to them. I could not or cared not to concern myself for their welfare after they were arrested and booked. If I did the stress would be overwhelming.

    While I was generally pretty accomodating on small issues, I too have thrown the book at people who greatly victimized others. I have stacked every charge on the person for which probable cause would be indicated. It certainly added to their sentences I would imagine, but that was my job to do so when warranted. But this usually does not come as any comfort to the person I arrested. But it does have consequences, again for better or worse. There are a couple individuals who I arrested where I will be in my 90’s when they are released. They were clearly guilty, but nevertheless they are languishing away in the joint and I am here in my home-office typing this letter.

    Personally I think Mr. Swartz was railroaded and the prosecution could easily be related to his suicide, but consider this situation.

    I knew a deputy who maybe thirty years ago pulled over a man for speeding. It was not really anything out of the ordinary, he just wrote him a ticket and was done with it. A short time after the traffic stop the defendant committed suicide. It was just the last straw before that poor fellow snapped and it pushed him over the edge.

    After all this I suppose it would be a good suggestion to anyone having such authority over others is that you have to be perceptive as to the plight of the person, but then again at the same time, oddly, you have to be indifferent. It’s not an easy balance.

  129. Darren,
    You may remember this incident from about fifteen or so years ago. There was a woman District Attorney in one of the southern states. IIRC, it was Florida. She was well known for her aggressiveness in going after seizures of property where illegal activity was going on, especially if there was a drug operation. That worked fine for the judicial district until her son was arrested for manufacture with intent to distribute. Seems he had a rather substantial agricultural growing operation on her property where he lived with her.

    Oddly enough, they appointed a special prosecutor who dropped the charges to misdemeanor possession and nothing was said about seizing her house and property. Strange, don’t you think?

  130. OS wrote:
    Strange, don’t you think?
    ~+~
    Doesn’t surprise me unfortunately. Special prosecutor was just window dressing

  131. So the prosecutor can add new charges after a grand jury indictement. Hmm, that isn’t subject for abuse, is it? The prosecutor can indict under a low level charge with a grand jury then charge to its’ heart desires in stronger felony charges, later on? What an abuse of power.

  132. I owned my flat in new jersey by clearing all the agreements,but the issue with us that,they want another agreement which is to be signed by us for the sake of their security,but y should i sign,if i already owned it.

  133. And everyone is surprised by this? The Obama administration is the 2nd side of the same coin as bush/cheney.

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