There is a highly troubling case involving Jeremy Hammond,27, who was sentenced to 10 years for the December 2011 hacking of Strategic Forecasting. It was the maximum possible sentence that Chief US District Court Judge Loretta Preska could give him. The case involves a recurring controversy over the government’s effort to punish hackers and whistleblowers revealing a massive surveillance state and attacks on privacy in the United States. However, this case has the added disturbing element of an allegation of a conflict of interest by Preska who refused to recuse herself from the case despite the fact that her husband was an alleged victim of the hacking.

Hammond hacked into Texas-based Stratfor Global Intelligence Service and turned over 5 million emails to the anti-secrecy group WikiLeaks. The charges included allegations of electronic theft and distribution of credit card information. He was also accused of using credit card numbers to make charges of at least $700,000. Now there is the twist. Those stolen documents included communications by Preska’s husband, Thomas J. Kavaler, who worked for Stratfor client Cahill Gordon & Reindel LLP. Not only that but Preska herself worked for the international law firm as an associate before becoming a judge. It is the husband’s status (rather than her earlier employment) that raised the most concerns.

Preska ruled:

Upon review of the record, Defendant has failed to carry his substantial burden of showing that a reasonable observer, with knowledge and understanding of the relevant facts, would “entertain significant doubt that justice would be done absent recusal,” Lauersen, 348 F.3d at 334. Finding otherwise on a record as suspect as here would only encourage supporters of this defendant—or other defendants—to allege unsubstantiated conflicts of interest against any of my brothers and sisters of the Court until no judge remained qualified to hear his case. Therefore, accepting Defendant’s invitation for recusal in this case would actually undercut the very policy Defendant prays this Court to sustain-namely, promoting public confidence in the Judiciary. Accordingly, Defendant’s motion to disqualify is DENIED.

The judge concluded that there was no injury to her husband beyond having his public email disclosed and, according to the FBI report, a two-week subscription that he had no memory of having ever accepted. She noted “[a]ccording to Mr. Kavaler’s undisputed sworn affirmation, he never provided his credit card information or any other personal financial or identifying information to Stratfor.” However, the defendant was accused of releasing documents from the firm of her husband and the firm was a client of Stratfor. Her husband was a partner at that firm and this controversy likely caused considerable unease and expense to the firm in addressing any potential for compromised files. In his affidavit, the judge’s husband states categorically that he never gave Stratfor any personal information and the company was never a client of his or his firm.

I think some judges would agree with Preska but I would not denounce the allegation, as did the judge, as “rank hearsay.” Nevertheless, such hacking cases can encompass many thousands, if not millions, of users in some way. Preska views the simple inclusion of her husband’s email and the involvement of his firm to be too attenuated to amount to a basis for recusal.

What do you think?