US Attorney General Defends Handling of Aaron Swartz Case

TrueSatan writes in with the latest in the ongoing Aaron Swartz tragedy. "Attorney General Eric Holder on Wednesday said the suicide death of internet activist Aaron Swartz was a 'tragedy,' but the hacking case against the 26-year-old was 'a good use of prosecutorial discretion.' The attorney general was testifying at a Justice Department oversight hearing before the Senate Judiciary committee and was facing terse questioning from Sen. John Cornyn (D-Texas). ...Holder stated: 'I think that's a good use of prosecutorial discretion to look at the conduct, regardless of what the statutory maximums were and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, zero to 6 was consistent with that conduct.' Notwithstanding Holder's testimony, Massachusetts federal prosecutors twice indicted Swartz for the alleged hacking, once in 2011 on four felonies and again last year on 13 felonies. The case included hacking charges under the Computer Fraud and Abuse Act that was passed in 1984 to enhance the government's ability to prosecute hackers who accessed computers to steal information or to disrupt or destroy computer functionality."

Comments

Duh.

[Anonymous Coward]

Huge asshole defends being a huge asshole. News at 11.

In other news...

[Fluffeh]

The puppy sitting next to a big poo on the carpet also claims that it wasn't his fault...

Re:In other news...

[girlintraining]

The puppy sitting next to a big poo on the carpet also claims that it wasn't his fault...

Yes, but a puppy is too young to know better. Puppies can be trained not to shit on everything, unlike US Attorney Generals.

All the way to the top.

[symbolset]

Hopefully now they can sweep them all out, from the AG all the way down to the frontline prosecutor. As a warning to others that "Justice" in "Justice Department" is not some vestigal null word.

Re:All the way to the top.

[RyuuzakiTetsuya]

Uh.

What he did was really illegal.

SHOULD it be super illegal? No. Of course not.

We also need a sea change in both jurisprudence and how we view crime. You know part of this is him trying to keep his ass out of hot water in the mainstream press. If we change how we as a people view crime and justice, there wouldn't be this snap call to be "tough on crime."

Rationality has left our culture. It's happening on both sides, but in Swartz's defense, and those who are outraged by Holder and everyone involved, now is not the time for well reasoned disconnected logic.

Someone died because a prosecutor turned the screw over an incident where no money was lost, no lives were lost and by all measure, relatively harmless.

To blame Holder or the prosecutor specifically ignores the bigger social context at work. That needs to change. We need to not forget what happened here.

Re:All the way to the top.

[Mitreya]

What he did was really illegal.

SHOULD it be super illegal? No. Of course not.

This is not the issue.
The problem is that plea-bargaining mechanism (an abomination in itself) leads to situation where to get 6 months (!) he was threatened with something like 30 or 50 years (yes, yes, federal guidelines, blah blah, but the judge would have discretion and it could lead to a lot more than 6 months)

Prosecutors should be barred from piling on an unreasonable number of charges just to scare the defendant into plea bargain.

Re:All the way to the top.

[girlintraining]

What he did was really illegal.

Whether something is illegal or not has no bearing on whether it is ethical or moral. And there are also shades of illegality. It is, for example, illegal to be publicly intoxicated, and yet if you go downtown you are sure to spot drunk people parading about, along with many police officers watching them do so. There's a reason why public intoxication is illegal, just as there are equally compelling reasons why the officers don't give a damn. Morality and ethics is the short answer.

You know part of this is him trying to keep his ass out of hot water in the mainstream press.

Do you mean the corpse, or the attorney general? I'm going to go with attorney general: His ass isn't in hot water. It's his job to ensure that the laws are applied fairly, and that the laws themselves are fair. As long as he's doing his job, he should have nothing to fear. So if his ass is in the proverbial hot water, then it's because he wasn't doing his job properly, which in turn means myself, and many others, are quite pleased to see him get a thorough roasting for causing a situation so repugnant.

If we change how we as a people view crime and justice, there wouldn't be this snap call to be "tough on crime."

You're assuming that an enhanced understanding of the problem will solve it. That illusion is one of mankind's oldest.

Rationality has left our culture.

That implies it was ever present. Even tracing back to the very foundations of our society, we can find plenty of examples of how irrationality dragged us forward. One might even argue that a dose of irrationality is exactly what's needed sometimes -- if you are known for having a strongly vindictive nature, then even though someone may be stronger than you and able to beat you up, they may leave you alone because you're simply not worth the effort. Is being vindictive rational? No of course not: It could earn you an ass pounding! And yet, counterintuitively, that's exactly what it prevents.

Someone died because a prosecutor turned the screw over an incident where no money was lost, no lives were lost and by all measure, relatively harmless.

No, someone committed suicide because society had no place for them. What he was doing may have had value to him, but society as a whole has, through its legal system, has made it so even in cases where there is no financial or physical harm to others, said that what he was doing had no value. Since what he was doing was at the core of who he was (obviously, since it drove him to kill himself when he was deprived of it), it is more accurate to say society had no place for him. Whether that's moral, or ethical, right, or wrong, I leave to you. But that is why he died.

To blame Holder or the prosecutor specifically ignores the bigger social context at work.

The larger social context here is that nobody gives a damn. It's apathy and indifference on a mass scale. There's no need to make vague motions towards a "larger social context", as though that means something more than "people are fucking self-centered, lazy assholes." It doesn't sound as academic, as intellectual, to say that, but it's closer to the truth.

Re:All the way to the top.

[Rashkae]

The 'crime' here was violatoin of terms of service. It was the equivalent of having out too many library books at the same time. It is the *same* Federal crime as creating a Facebook or Google+ profile under an assumed name.

Prosecuters refused any plea bargain that did not involve jail time because Aaron was politically emberassing to some.

Re:All the way to the top.

[fredprado]

No, someone committed suicide because society had no place for them. What he was doing may have had value to him, but society as a whole has, through its legal system, has made it so even in cases where there is no financial or physical harm to others, said that what he was doing had no value. Since what he was doing was at the core of who he was (obviously, since it drove him to kill himself when he was deprived of it), it is more accurate to say society had no place for him. Whether that's moral, or ethical, right, or wrong, I leave to you. But that is why he died.

You make it sound as if the legal system represents society's will, which is obviously not the true (and never was). Society had a place for him, but those who rule did not, and despite any illusions you may have of living in a democracy, rest assured those who rule are not the people.

Re:All the way to the top.

[vux984]

People have funny ideas about how the justice system works.

In that they simply would like to see justice?

Re:All the way to the top.

[Jane Q. Public]

Violation of TOS is breach of contract at most. A civil matter, not even a crime, and nowhere near a felony. The notion that violating a TOS is also a violation of CFAA would mean that anybody could make their own laws, simply by writing them into the TOS on their website. The very idea is ridiculous.

Derp

[girlintraining]

The case included hacking charges under the Computer Fraud and Abuse Act that was passed in 1984 to enhance the government's ability to

... be so overly vague as to make anyone who uses a computer for any reason, by any method, a felon? Because that act is the quintessential example of how not to do it, and it's quoted by law professors all over the country as a shining example of the problems caused by strict liability laws.

Re:Derp

[girlintraining]

There should be a law requiring to pursue existing charges against everyone and not based on prosecutor discretion. That would cut down on ridiculous laws overnight.

There wouldn't be anyone left then, except perhaps newborns... who would promptly starve to death since any adult capable of taking care of them would be in jail. It would, quite literally, be the end of human life in this country -- there is no person alive who doesn't commit a crime deserving of jail every week in the course of his/her everyday activities.

And you don't need vague laws for prosecutors to go after anyone they want... it just makes it easier. All you need is a big helping of the just world hypothesis and a side of Milgram's obedience experiments to clean up anyone who doesn't get suckered by the first one.

This is the morality sieve in every culture that has allowed freedom and liberty to de-evolve into tyranny and abuse of power: Anyone hurt by it deserved it and anyone who disagrees vocally enough to start convincing others this is not the case will be punished, and naturally then, they deserved it too. As far as why people go along with things they clearly know are wrong or hurtful... it's because they're afraid of being punished by The Authorities. But here's the real interesting thing... when you add in a helping of Bureaucracy, then you can have an abstract authority where no one person is responsible. When you divide responsibility amongst even a small number of people, then nobody takes responsibility, nobody is at fault, and the process continues on its merry, eating people left and right. "I was just following orders."

Not long for this administration

[Hangtime]

Between Fast and Furious, Swartz, and now giving the OK on drone strikes against US citizens in America - he doesn't have a friend in the world, he has ticked off everyone.

Re:Not long for this administration

[mkiwi]

Between Fast and Furious, Swartz, and now giving the OK on drone strikes against US citizens in America - he doesn't have a friend in the world, he has ticked off everyone.

Don't worry, there are still plenty of people drinking the Kool-aid. People tend to chain themselves to a particular ideology because it makes life easier to absorb. The "us vs. them" mentality is a basic human survival mechanism.

What will be interesting to find out is how Obama is perceived after the "not so nice" parts of his healthcare law take effect in a couple years––then scholars truly can debate who was worse, Bush II or Obama.

Re:What else can he say?

[symbolset]

It would be the honorable thing to do.

A Culture of Fear

[ScottCooperDotNet]

There has been a significant trend in America that punishment is intended not to provide a reasonable deterrent to crime, but to set an example to keep the rest in line. The higher the possible sentence, the more likely it is for the defendant to plead down to something, or be turned against another defendant in exchange for immunity. All of this is intended to save the prosecutor the hassle of making his case in court.

Eric Holder is promoting a legal version of the Tarkin Doctrine.

Which party?

[Skapare]

terse questioning from Sen. John Cornyn (D-Texas).

From Wikipedia:

John Cornyn III (born February 2, 1952) is the senior United States Senator for Texas, serving since 2002. He is a member of the Republican Party and the current Senate Minority Whip for the 113th Congress. Cornyn previously served as Chairman of the National Republican Senatorial Committee from 2007-2011.

John Cornyn

[fermion]

While I would like to see this case be the impetus to reform the way we deal with criminals, John Cornyn is not the one who is going to do it. This is just a political ploy to gain points with the right wingnuts. Cornyn sponsored a bill that would force anyone detained by the police to submit a DNA sample. Not arrested, no arraigned, not indicted, but simply stopped by a police officer for no apparent reason. He fully supports the patriot act and wiretapping without a warrant. He in no way is concerned that the police and prosecutors have too much power. He is simply one of those people who is leveraging people fear of the man in the office of the presidency. He is simply trying to win the next election.

I would add one more thing. While I really question what happened in this case, I also know that when you play with the big dogs you have to be able to deal with getting bit. Someone like Schwartz who father gave him ample opportuniteit and who was private school educated may have they did not have to live in the real world. Maybe they thought they had protection, and when they did not it frightened him. I saw this a lot when I was growing up, and even now. There were some white kids in Louisiana, for instance, who thought it might be fun to taunt the black boys. They were asked nicely to stop, but they did not. When retaliation did occur then thought it was very unfair. After all they were white and protected. I am not saying that the cases are similar, just that some people don't know that real world consequences exist. We live in a dangerous world where people, especially powerful people, will retaliate with excessive force. Fairness is not the point. Solving the problem is. Some of us have had experience with this from a young age

Compare this case to Julian Assange and Bradley Manning. The retaliation against them are orders of magnitude greater than against Schwartz, yet they are dealing with it the best they can. Actions have Consequences. Thoreau was against the war, did not pay taxes, and went to jail. He honored his conscience and paid the price. Just as we all do.

Pleading guilty compulsary

[Anonymous Coward]

" Even after that, a plea offer was made of a range of from zero to 6 months that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months."

You can see the problem here, he's arguing that the guy's rights are dependent on him pleading guilty. He should have been charged with a crime that had a 6 month sentence, but instead they charge him with crimes which would have locked him away for most of his life, in ORDER TO FORCE HIM TO SKIP THE TRIAL AND PLEAD GUILTY.

And admitting they thought a 6 month sentence was appropriate confirms they shouldn't have gone for the more serious crimes.

So MIT and JSTOR didn't think a criminal charge was appropriate, which removed their evidence. That removed the 'exceeded access authority' (they dropped that charge when it became untenable) and the 'didn't have access authority' claim was dodgy as f*** since he certainly did have authority to access the site.

So the charges they had against were untenable. They then piled on a load of BS Federal claims to try to go for the smear tactic. The 'he's charged with 13 crimes so he must be guilty of at least one of them' tactic. Make it so risky that he has to accept the plea bargain.

And here the prosecutor is confirming the only way to get an appropriate sentence was to go for the plea. Which confirms what we know.

Really, the prosecutor is abusing the system, he might think its for the greater good (to reduce court ques and put more people in jail), but its not. Carmen Ortiz on the other hand is the real criminal here, she literally used this case as a stepping stone in her political career.

Re:Pleading guilty compulsary

[Anonymous Coward]

Except we aren't talking about selling a car. We are talking about putting people in prison and labeling them as a felon.

Re:Pleading guilty compulsary

[fredprado]

You list the exact motive why such bargains shouldn't be allowed. As long as they are they will be used exactly like this, which is a derailment of the legal system's purposes. Plea bargains are an abomination of US justice system whose only purpose is to blackmail people into forfeiting their constitutional rights.

Re:Pleading guilty compulsary

[fredprado]

If by "more efficient" you mean putting people in jail despite their being guilty or not, and creating the biggest (by far) incarcerated population in the world, than by all means you are right. You know, the Holy Inquisition didn't convict you until you self-incriminated yourself either...

Re:Pleading guilty compulsary

[fredprado]

Oh I am quite sure 97% of the people charged are guilty in US, as only 3% of the accused do not plea guilty. Because you know US is THAT different from everywhere else and the government is right 97% of the time in this even though it is usually wrong about pretty much everything else much more often than it is right.

That certainly is a much more reasonable explanation than thinking that maybe a lot of innocent people simply plea guilty because they cannot take the change of being judged guilty and spending a few decades in prison.

Re:Pleading guilty compulsary

[Jane Q. Public]

"Show me the part of the constitution where it says 'And the state shall not do anything that might make administration of the judicial process cheaper, faster, and more efficient.'"

In this case, "Constitutional scholar" bedamned. You err in citing the Constitution -- or lack of mention in the Constitution, that is -- for justification.

Our legal process is mostly based on Common Law, which predates the Constitution by a rather large margin. Most of it has very little to do with the Constitution, per se.

Regardless, I have to side with GP. Plea bargaining might have started out as an attempt to find ways to keep criminals off the street when cases are difficult to prove. BUT, it has become not just a way to make trials more efficient. It has become a major instrument of coercion on the part of government. The deal offered Aaron Swartz was coercion, plain and simple. It was not an attempt to enforce justice. Hell, it was not even close to anything like justice. They tried to get him to plead guilty to a felony, for the act of downloading files which he had legal right and authorization to download. His "crime" was not even really a crime; he violated an online service's TOS. If you don't think the charges represent a real, genuine threat to freedom then you aren't thinking very clearly.

The proper role of government is neither to make its own job simple at the expense of citizens, or to be coercive in order to "make an example". Coercion has no rightful place in government, and government has no right to be coercive. No, the government did not kill Aaron Swartz. Yes, it was blackmail. Worse than blackmail, really. He was given the option to plead guilty to a felony, or to face charges for far worse felonies, when he hadn't even really broken the spirit of any laws.

Re:Pleading guilty compulsary

[tsotha]

Except the transfer of ownership on a vehicle involves a voluntary transaction for both parties.

This is more like "Okay, either you buy this car for $4000 or I'm gonna flip this coin. Heads and the car is $2000. Tails and I shoot you."

Re:Pleading guilty compulsary

[gishzida]

How about that fuzzy part about being tried by a jury of your peers? And what about that part about facing your accusers? or a Speedy trial? Any thing else is not constitutional.

Instead we have a process that is designed to abuse the accused and give the prosecutors political points. If the prosecutor cannot convict the accused for what they were charged then maybe the prosecutor should not be wasting the taxpayer's money in the first place especially when the "victims" did not want to press charges. This is a case of prosecution for political gain which seems to be a favorite pass time of prosecutors [of both parties] who want to get political traction.

If Judges are forced to used guidelines prosecutors should as well.

Holder should be fired for this bit of stupidity...

Re:Pleading guilty compulsary

[tsotha]

Effectively it's denying people a their right to a trail. At some point the whole thing becomes a variant of Pascal's wager, in that the worst case outcome is so severe it makes sense to plead guilty even if you're innocent.

Re:Pleading guilty compulsary

[hairyfeet]

Except we are talking about not a car but to utterly destroy another person's life. That is the problem in a nutshell with the current system, unless you have a cool quarter million to throw away on a defense you are screwed either way because the state has unlimited resources.

I should know as I had a friend that lost a house that had been in his family 4 generations because of this kind of plea bargaining horseshit. He was in the midst of a REALLY nasty divorce (heard of a midlife crisis? Well it was her and not him that had one, started fucking a 20 year old on the side) when the bitch got pissed and pulled a "tell the cops daddy touched you and you'll get a new car for sweet sixteen" move. Even the cops ended up testifying for him, saying the girl changed her story so many times there was zero credibility but it turned out the local prosecutor was raped in college and from that point on if you had a penis you were a rapist so by the time she got done digging up every possible charge she could come up with he was looking at triple life. The lawyer fees ended up costing him everything and the bitch used this to her advantage by getting sole custody of his son while he was tied up with the fight for his freedom. She took him overseas and he has never seen him since, wouldn't even recognize his own son if he ran into him on the street.

so by piling on the charges not only do they try to force a plea bargain by how much time you are looking at but they know your lawyer fees will cost more with each charge so even if you win? Like my friend you lose. He went from having a great job, 2 rental properties and his son to having nothing but a used car and a rented trailer. Some victory huh?

Re:Pleading guilty compulsary

[hairyfeet]

If you take them out back and shoot them it only costs the state a bullet, does that make it a "better" system or a worse one? We are now right up there with China and some of the third world hellholes when it comes to how many people we destroy per year (and yes its destruction, a felony equals a life of lousy jobs and suspicion in this country) and this isn't really the kind of company we should be keeping, don't you agree?

Re:Pleading guilty compulsary

[SourceFrog]

Holder fired? This is the same Holder who has come out publicly saying you don't have due process, this is the same Holder who advocates for blowing up American citizens with drones on US soil with no due process, this is the same Holder involved with Fast and Furious ... so for him to blithely say it's OK to trample on a little person like Aaron Schwarz, seems perfectly in character for this sociopath of note. But if Holder hasn't been fired by now for all the other crap, one can only assume the average American supports what he says and does, either that or Americans are collectively asleep or something.

Re:Same DOJ That

[cosm]

> This is the same DOJ that...spends thousands going after ... illegal 'copycap' handbags and sports paraphernalia, etc.

So what the heck is wrong with going after this sort of stuff? Trademark infringement is seriously bad news. Ask anyone who has gotten fake merchandise thinking it was genuine.

My sarcasm meter is off but.... seriously? People who buy a 10 dollar Iphone or a 4 euro gucci purse know what they are getting....point me the the pool of angry people getting fake merchandise unintentionally and I'll point you to a DOJ that prosecutes serious issues of criminal action where actual victims lost life/liberty/pursuit of happiness. Currently they seem to be prosecuting to take those same things away away from whoever their super pac funded blame-thrower is aimed at...making them the wanton aggressor....not the guy pushing handbags or the site taking bets on a football game.

Be nice if DOJ went after harmful criminals

[Beeftopia]

Today, Holder testified before the Senate: "US Attorney General Eric Holder testified before the Senate Judiciary Committee on Capitol Hill today, and discussed the lack of criminal cases against financial institutions in the aftermath of the financial crisis." -- Forbes magazine online

Contrast this with Aaron Swartz. A soft target. It's unclear how much, if any, of a net cost he imposed with his illegal downloads of journal articles. "Illegal Downloads Of Journal Articles." It even sounds trivial. And they hounded him for it. To death. They presented the credible possibility of decades in jail to him.

But, as always, follow the money. Wall Streets spends a tremendous amount of money on federal politicians so they can keep running their swindles and funnel part of the proceeds back to Washington. Swartz was paying little if anything to the politicians as he was trying to provide information to the public at no personal gain.

To understand what's going on here, you have to understand politicians: "No one will really understand politics until they understand that politicians are not trying to solve our problems. They are trying to solve their own problems — of which getting elected and re-elected are number one and number two. Whatever is number three is far behind." -- Thomas Sowell

Plea bargains..

[BrookHarty]

Plea bargains make people plead guilty all the time. I remember when Wennatchee sex ring scandal happened. The whole population wanted justice, hang the child rapists! The state went for life sentences for all 40+ people accused.
Many of the people pleaded guilty when they faced life in prison. Only after years of litigation did it come out the entire thing was a hoax. No child was raped.

The stresses this young man faced shouldn't be the norm. Obama was suppose to be the voice the people, the people who work in his administration should echo his values.

I can only hope that a 3rd party takes off someday, we really need to vote the bastards out, not vote pretend in a 2 party system.

What was the hope of the founding fathers for USA?

[Taco Cowboy]

As all these happened in the United States of America, why don't we go back all the way to the beginning of the United States of America - to what the founding fathers had in mind for their new country

What was the one thing that irritated the founding fathers the most ?

An abusive government

It was precisely because of the abuses from the Brits that the American colonialists just couldn't stand it no more and decided to take up arms and revolt

There are over 200 countries in this world, and the United States of America is one of the handful of countries where not only popular revolution was the spark that had created the country, but also that the founding fathers was thoughtful enough to write down their wish and blessings for the new country that they had formed, and their wish was also expressed in the Constitution, along with the Bill of Rights

The current form of the American government is exactly the form of government that the founding fathers would fight vehemently against

As an American who isn't staying inside America, I am sad to say that most of my fellow Americans have no idea what America is all about

How many of my fellow American understand the duty of being an American citizen?