OK, But Can We Also Fire Lanny Breuer?

I’ve lost count of how many White House petitions are seeking some kind of vengeance for the harsh treatment of Aaron Swartz. Fire Carmen Ortiz. Fire Stephen Heymann. Pardon Swartz. Commute John Kiriakou’s sentence.

One of the most ethical suggestions I’ve seen (and I’m not even sure if there is a White House petition for it) is to fix the Computer Fraud and Abuse Act. [Update: Thanks to Saul Tannenbaum, here it is.]

The government should never have thrown the book at Aaron for accessing MIT’s network and downloading scholarly research. However, some extremely problematic elements of the law made it possible. We can trace some of those issues to the U.S. criminal justice system as an institution, and I suspect others will write about that in the coming days. But Aaron’s tragedy also shines a spotlight on a couple of profound flaws of the Computer Fraud and Abuse Act in particular and gives us an opportunity to think about how to address them.

I didn’t know Aaron personally, but he doesn’t strike me as the kind of guy who would seek individualized solutions to systemic problems. And one of the problems with the system that destroyed him is a law that badly criminalizes actions that don’t present much harm.

Moreover, as Corey Robin argues in this post, asking Obama to take action to absolve the actions of his own government defeats the point.

Asking the state to pardon Swartz doubly empowers and exonerates the state. It cedes to the state the power to declare who is righteous and who is wrong (and thereby obscures the fact that it is the state that is the wrongful actor in this case). The petitioning language to Obama only adds to this. The statement depicts Obama as somehow the good father who stands above the fray—much like how the Tsar was depicted in the petition of the Russian workers who marched with Father Gapon on the Winter Palace in 1905 and were summarily slaughtered.

Pardoning Swartz also would allow the government, effectively, to pardon itself.

These petitions seem to serve the purpose of pretending that Swartz’ treatment was abnormal.

It was not.

Not only has Obama’s Administration treated all those who liberate information without his government’s sanction as dangerous criminals, but his DOJ has been ruthless against just about everyone who is not a Wall Street Executive.

Jesslyn Radack–who knows how aggressively Obama’s DOJ has targeted those who free information as well as anyone–discusses the legal futility of trying to go after Stephen Heymann. But she also notes that the real remedy to prevent more people from experiencing what Swartz did is to start fixing DOJ.

What might be more realistic is for citizens to demand that the Senate Judiciary Committee exercise meaningful oversight over the out-of-control Justice Department, which has waged an unprecedented, unaccountable, brutal war on whistleblowers and hackers, and to create something akin to the Church Committee to investigate the improper monitoring and targeting of hackers, whistleblowers, Occupy participants, journalists, and a numerous other groups of non-violent “offenders” who’ve done nothing to harm anyone or the country, and have been acting purely in the public interest.

It would be a good start (though SJC Chairman Patrick Leahy has been lax in examining any Obama Administrations abuses).

But there is one action Obama could take today that would both address some of the problems with his dysfunctional DOJ and attest he means to change things systematically: Fire DOJ’s Criminal Division head, Lanny Breuer.

Lanny Breuer is not the only reason Obama’s DOJ has been so aggressive (though he has been instrumental in ensuring it ignores bank crimes). There are far more senior and far less senior people who have fostered DOJ’s overreach. But Breuer runs this system. Moreover, as the head of this system of prosecutorial overreach, he has actually explicitly rewarded abuse.

If we want to fix the injustice that was done to Aaron Swartz, we need to fix the aspects of the system that rewarded such behavior. We need to fix the law that empowered the prosecutors gunning for him. We need to put some breaks on DOJ’s power. And we should start by getting rid of the guy who has fostered this culture of abuse for the last four years.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

22 replies
  1. P J Evans says:

    OT: my firewall says your header image is corrupt and has a Trojan horse in it. (It was okay last night.)

  2. JTMinIA says:

    Internet petitions are just the 21st-century equivalent of bread and circuses. The only differences are a lack of nutritional value in the first case and the absence of lions in the second.

    Relatedly, that both Roman chariot and NASCAR races only involve left turns is a coinky-dink that is not lost on me.

  3. der says:

    Matt Stoller:

    – “Aaron suffered from depression, but that is not why he died. Aaron is dead because the institutions that govern our society have decided that it is more important to target geniuses like Aaron than nurture them, because the values he sought – openness, justice, curiosity – are values these institutions now oppose.”

    – “As we think about what happened to Aaron, we need to recognize that it was not just prosecutorial overreach that killed him. That’s too easy, because that implies it’s one bad apple. We know that’s not true. What killed him 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 Kiriako – 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.”

    Read more at http://www.nakedcapitalism.com/2013/01/aaron-swartzs-politics.html#b5pbQRI7Zq2wOJjh.99

    Also, too: http://www.nakedcapitalism.com/2013/01/aaron-swartz-and-his-risk-factors.html

  4. orionATL says:

    i am in complete agreement with cory robin, nonetheless, the pardons office is a perfect small example of why the u.s. dept of justice (mis)functions so badly under the ever timid and cautious obama – there is a corrupt left-over from the bush admin still running the program:

    http://www.nytimes.com/2013/01/06/opinion/sunday/the-quality-of-mercy-strained.html?ref=amnestiesandpardons&_r=0&gwh=DAE5805CE04BE8012ABCE495BB7EAC56

    pro publica provides a copy of the doj inspector general’s report on pardons head ronald rogers:

    http://www.propublica.org/documents/item/541206-doj-oig-review-of-the-pardon-attorneys

  5. bsbafflesbrains says:

    Justice Department is now in same class as Military Intelligence, Banking Regulations, and The Learning Channel.

  6. P J Evans says:

    @greengiant:
    If the Republicans were not part of the problem, government as a whole would be more functional.(Not necessarily better functioning, given the revolving doors and the tendency to appoint regulatees as regulators, but not gridlocked all the time.)

  7. thatvisionthing says:

    @greengiant: I thought justice and AG were supposed to be above politics. Republicans and Dems and Independents could all impeach him. (Do you impeach AGs? How did John Mitchell end up in jail then?)

  8. orionATL says:

    here is an entry from miss wiki on the computer fraud and abuse act used to persecute aaron swartz:

    http://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act

    look at the section called ” notable cases and decisions”.

    – a surprising number (to me) of gov’t prosecutions were either dismissed by the gov’t after initiation, dismissed by the court, overuled on appeal, or resulted in a trivial, face-saving victory for the gov’t.

    – most involve criminal action against individuals but ALL cases listed here seem to involve defendents well outside the american political power structure.

    – these two facts (?) suggest to me the law is used almost exclusively as a vehicle for harrassment or retaliation.

  9. orionATL says:

    …””The Morris Worm

    The first person convicted of violating the Federal Computer Fraud and Abuse Act of 1986 was Robert T. Morris, a Harvard graduate and grad student in Cornell University’s computer science Ph.D. program. He was found guilty of distributing an Internet worm. Morris was working on a computer program to demonstrate security flaws on computer networks. On November 2, 1988, he anonymously released a self-replicating computer program, also known as a “worm,” on to the Internet from a computer he was authorized to use at the Massachusetts Institute of Technology. The worm was not intended to interfere with normal computer operations. It consisted of two parts: a “probe” and a “corpus.” The probe attempted to penetrate computers through flaws in network security systems, and if successful, compiled itself on the host computer and then sent for its corpus.

    Despite the precautions Morris tried to build into the worm, which was not intended to cause malicious harm, as many as 6,000 computers (six percent of all computers on the Internet at the time) were infected within hours of the worm’s release, causing widespread computer failure. When Morris discovered what was happening, he sent an anonymous message over the Internet instructing programmers how to kill the worm. But, the Internet routes were so clogged by his worm replication that the message did not get through in enough time to be meaningful.

    Despite much debate to determine whether Morris intended to cause harm, it was ultimately decided that he intended unauthorized access, and that was enough for a conviction under the Act. Morris was sentenced to three years of probation, fined $10,000 plus the costs of probation, and ordered to perform 400 hours of community service. U.S. Attorney Frederick J. Scullin, Jr. commented: “Among other things, the Morris case should put the would-be hacker on notice that the Department of Justice will seek severe penalties against future computer criminals, whether or not they are motivated by a venal or malicious intent.”

    see also Association of Computing Machinery; Security.

    Gregg R. Zegarelli Bibliography Computer Basics. Understanding Computers Series. New York: Time-Life Books, 1989.

    Computer Fraud and Abuse Act, P.L. 98–473, Title II, Section 2102, 98 Stat. 2190, October 12, 1984, as…”

  10. orionATL says:

    K@orionATL:

    the punishment meted to robert t. morris was:

    “… Morris was sentenced to three years of probation, fined $10,000 plus the costs of probation, and ordered to perform 400 hours of community service. U.S. Attorney Frederick J. Scullin, Jr. commented: “Among other things, the Morris case should put the would-be hacker on notice that the Department of Justice will seek severe penalties against future computer criminals, whether or not they are motivated by a venal or malicious intent.”

    the punishment threatened to aaron swartz (in order for a doj prosecutor, stephen haymann, to extort a plea deal) was along the lines of 35 years in jail and possible millions of dollars in fines.

    what has changed between 1988 and 2013?

    well, it isn’t the fundamentals of the law (though it has been amended several times), i’d argue it’s the development of a savage, bullying culture of prosecution at the u.s. department of justice.

    it no doubt began under g.w. bush with the encouraging provisions of the propandistically named “patriot” act, ( which no true patriot would ever have supported),

    but it has continued unrestricted under president obama.

    why?

  11. Bill Michtom says:

    @orionATL I don’t see any reason to believe that the man who has personally taken on the slaughter of hundreds and has expanded war all over the Middle East and North Africa, while defying the Constitution’s war powers, would be suddenly timid or cautious here.

    I don’t think the remaining Bush personnel are merely leftovers. They are, like John Brennen, the exemplars of Obama’s true politics.

  12. Bill Michtom says:

    @der I strongly agree with you and would add that this action is only the very visible end of the DOJ’s multi-tiered “justice,” as these articles make all too clear.

    http://www.guardian.co.uk/commentisfree/2012/nov/23/anonymous-trial-wikileaks-internet-freedom
    http://www.guardian.co.uk/commentisfree/2013/jan/10/manning-prosecution-press-freedom-woodward
    http://www.rollingstone.com/politics/news/secret-and-lies-of-the-bailout-20130104?print=true
    http://www.guardian.co.uk/commentisfree/2012/dec/12/hsbc-prosecution-fine-money-laundering
    http://www.guardian.co.uk/commentisfree/2012/nov/05/muslim-no-fly-qatar

    If you are poor, a Muslim, a person of color, challenging government oppression at any level, you are at severe risk every day.

  13. Brian says:

    I love the tweet that idiot husband of Carmen Ortiz made the other day. Aaron Swartz should have pleaded guilty and agreed to a six month sentence. He (Swartz) then becomes a convicted federal felon, he loses voting privileges, and he also loses his ability to find work. The whole mess should have been knocked down to a civil action. Mr. Swartz pays a hefty fine, and he carries on with his life, with little or no damage to his reputation. It’s the standard playbook that US Attorney’s office uses. They load up indictments and throw the entire weight and resources of the federal government at an individual, hoping for a horrible plea agreement to be signed by the defendant. Carmen Ortiz is being totally disingenuous stating she feels terrible for the Swartz family, she has his blood, on her hands.

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