What prosecutorial abuse tells us about how the legal system works


Glenn Greenwald has a must-read piece that reveals what is actually going on in the investigations and prosecutions of people like Aaron Swartz. He says that Aaron Swartz was a pawn in the US government’s war against one antagonist that challenges their power and that they feel they have insufficient control over – hackers.

The US has become a society in which political and financial elites systematically evade accountability for their bad acts, no matter how destructive. Those who torture, illegally eavesdrop, commit systemic financial fraud, even launder money for designated terrorists and drug dealers are all protected from criminal liability, while those who are powerless – or especially, as in Swartz’s case, those who challenge power – are mercilessly punished for trivial transgressions. All one has to do to see that this is true is to contrast the incredible leniency given by [Massachusetts’ US Attorney Carmen] Ortiz’s office to large companies and executives accused of serious crimes with the indescribably excessive pursuit of Swartz.

Beyond this specific case, the US government – as part of its war to vest control over the internet in itself and in corporate factions – has been wildly excessive, almost hysterical, in punishing even trivial and harmless activists who are perceived as “hackers”. The 1984 Computer Fraud and Abuse Act (CFAA) – enacted in the midst of that decade’s hysteria over hackers – is so broad and extreme that it permits federal prosecutors to treat minor, victimless computer pranks – or even violations of a website’s “terms of service” – as major felonies, which is why Rep. Lofgren just announced her proposed “Aaron’s Law” to curb some of its abuses.

This immunity for people with power needs to stop. The power of prosecutors is particularly potent, and abuse of that power is consequently devastating. Prosecutorial abuse is widespread in the US, and it’s vital that a strong message be sent that it is not acceptable. Swartz’s family strongly believes – with convincing rationale – that the abuse of this power by Ortiz and [Assistant US Attorney Stephen] Heymann played a key role in the death of their 26-year-old son. It would be unconscionable to decide that this should be simply forgotten.

This is not just prosecutorial abuse. It’s broader than that. It’s all part and parcel of the exploitation of law and the justice system to entrench those in power and shield themselves from meaningful dissent and challenge by making everyone petrified of the consequences of doing anything other than meekly submitting to the status quo.

Matt Stoller also weighs in:

What killed [Swarrtz] was corruption. Corruption isn’t just people profiting from betraying the public interest. It’s also people being punished for upholding the public interest. In our institutions of power, when you do the right thing and challenge abusive power, you end up destroying a job prospect, an economic opportunity, a political or social connection, or an opportunity for media. Or if you are truly dangerous and brilliantly subversive, as Aaron was, you are bankrupted and destroyed. There’s a reason whistleblowers get fired. There’s a reason Bradley Manning is in jail. There’s a reason the only CIA official who has gone to jail for torture is the person – John Kiriakou – who told the world it was going on. There’s a reason those who destroyed the financial system ‘dine at the White House’, as Lawrence Lessig put it.

There’s a reason former Senator Russ Feingold is a college professor whereas former Senator Chris Dodd is now a multi-millionaire. There’s a reason DOJ officials do not go after bankers who illegally foreclose, and then get jobs as partners in white collar criminal defense. There’s a reason no one has been held accountable for decisions leading to the financial crisis, or the war in Iraq.

This reason is the modern ethic in American society that defines success as climbing up the ladder, consequences be damned. Corrupt self-interest, when it goes systemwide, demands that it protect rentiers from people like Aaron, that it intimidate, co-opt, humiliate, fire, destroy, and/or bankrupt those who stand for justice.

In the furor over the death of Swartz, we should not forget that he was just one of many who suffered from prosecutorial abuse but that most of the others were poor and unknown and no one heard of them. Swartz had friends in high places that has resulted in such widespread outrage and I hope that changes that benefit everyone will occur as a result.

Comments

  1. Jared A says

    From what little I know about the situation, what Swartz did couldn’t even be described as hacking. Instead he simply violated the terms of service of JSTOR by using scripts to download too many articles too quickly. The are good reasons to have these terms of service (he did, afterall, crash their servers), but I don’t see how violating the terms is the same as hacking. That would be things like accessing unauthorized networks or material.

    If I were making laws this instance wouldn’t allow anything beyond a civil suit.

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