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. 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.

  2. 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.

  3. This does not surprise me at all AP. Aaron and Assange walk in the rarified air space of computer genius.

  4. 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.

  5. 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.

  6. 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…….!

  7. 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.)

  8. 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.

  9. 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.”

  10. 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.

  11. 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.)

  12. 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.

  13. 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.

  14. 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.

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