Was Aaron Swartz’ Effort to FOIA Bradley Manning’s Treatment Why DOJ Treated Him So Harshly?

As I mentioned earlier, John Cornyn asked Eric Holder whether Aaron Swartz was prosecuted because of his FOIAs.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

I have shown earlier how, during the period when the Grand Jury was investigating Swartz, Swartz was FOIAing stuff that the prosecutor seems to have subpoeaned as part of a fishing expedition into Swartz. I have also shown that a FOIA response he got in January 2011 suggests he may have been discussed in a (presumably different) grand jury investigation between October 8 and December 10, 2010. And Jason Leopold has also pointed to some interesting coincidences in Swartz’ FOIAs.

But there’s a series of FOIAs Swartz submitted that almost certainly pissed off the government: he FOIAed tapes that would have had Bradley Manning, describing in his own words, how he was being treated at Quantico.

On December 23, 2010, David House blogged about the treatment Bradley Manning was being subjected to at Quantico (which has since been deemed illegal).

On December 27, Swartz asked for the following in FOIA from the Marine Corps:

Any records related to Bradley Manning or his confinement in Quantico Brig.

In particular, please process as quickly as possible a request for the government-curated audio tapes created in Quantico brig visitation room #2 on December 18 and December 19 2010 from 1:00pm – 3:00pm. These tapes may also contain a recording of David M. House; I have permission from David House under the Privacy Act to request these records.

The timeline that ensued is below, with other significant dates included.

Of particular interest? The Secret Service didn’t get warrants to investigate Swartz immediately after his initial arrest, in spite of the fact Secret Service Agent Michael Pickett offered to get a warrant on January 7. In fact, Secret Service didn’t get warrants until February 9, over a month after his initial arrest. (Update: See this post for more on the delay.)

That’s the day Swartz FOIAed the Army Criminal Investigative Service for the tapes on Manning’s treatment.

More odd still, the Secret Service didn’t immediately use the warrants to obtain the hardware seized in his arrest; the warrant to search his hardware expired and Secret Service eventually got a second one. But Secret Service did search Swartz’ home two days after they got that warrant, on February 11–two days after he asked ACIS for the tape that would have Manning describing how he was being treated.

Suffice it to say that Swartz was pursuing the same information that got State Department Spokesperson PJ Crowley fired just as USSS intensified its investigation of him.

While I don’t think Swartz’ pursuit of details on Manning’s treatment would be the only reason they would deal with him so harshly, the Obama Administration clearly was dealing harshly with those who were critical of the treatment of Manning.

Update: This post has been updated for accuracy.


December 23, 2010: David House blogs about Manning’s treatment, effectively fact-checking DOD’s claims.

December 27, 2010: Swartz FOIAs the recording of House’s visit to Manning, which would have captured Manning describing in his own words how he was being treated.

December 29, 2010: Initial response on Manning brig FOIA.

January 4, 2011: MIT finds Swartz’ computer. Secret Service takes over the investigation.

January 6, 2011: Swartz arrested.

January 7, 2011: Twitter administrative subpoena to several WikiLeaks team members revealed.

January 17, 2011: Protest outside of Quantico for Manning.

January 18, 2011: Manning placed on suicide risk.

January 20, 2011: Swartz’ Manning brig FOIA transfered to Quantico CO.

February 1, 2011: Quantico tells Swartz Manning brig FOIA needs to go to Army Criminal Investigative Service.

February 9, 2011: Swartz FOIAs ACIS for Manning brig information.

February 9, 2011: Secret Service obtains warrant to search Swartz’ hardware and apartment, followed by a warrant to search his office.

February 9, 2011: WSJ reports WikiLeaks investigation cannot prove Assange induced Manning to leak documents.

February 11, 2011: Secret Service searches Swartz’ house and office, but not the hardware primarily implicated in the crime purportedly being investigated.

February 22, 2011: Warrants on Swartz’ hardware expire.

February 24, 2011: Secret Service obtains new warrant for hardware. Initial response from ACIS to Manning brig FOIA.

February 28, 2011: ACIS responds to Swartz’ Manning FOIA, stating,

… the requested documents are part of an ongoing Army court-martial litigation and are not releasable to the public at this time. This request will be closed. Please submit your request at a later time.

March 2, 2011: Swartz responds to this rejection:

On the 28th of February, the US Army’s Freedom of Information Act Officer declined to release documents I requested under FOIA/PA because they “are part of an ongoing Army court-martial litigation.”

Being part of ongoing litigation is not a valid exemption to the FOIA or the Privacy Act.

There are narrow exemptions for certain types of release that interfere with law enforcement activities, but the Army has not claimed these exemptions nor explained why they apply. Furthermore, the normal procedure is to collect the documents and then evaluate them to see whether any portions of them qualify for the exemption. It appears the Army did not collect documents in response to my request at all, so I do not see how it could have evaluated them.

I therefore appeal my request in its entirety.

March 3, 2011: ACIS admits Swartz is correct:

 You are absolutely correct and I want to apologize for sending you the wrong information. This request is being sent to the Initial Denial Office (IDA) today. Please give them a couple of days to receive it.

March 4, 2011; ACIS sends another letter:

Because this request has been denied this request is being sent to the Initial Denial Office (IDA).

March 11, 2011: PJ Crowley criticizes Manning’s “ridiculous, counterproductive, and stupid” treatment at event at MIT. Jake Tapper asks Obama about Crowley’s comment at press conference.

March 13, 2011: White House forces PJ Crowley to resign for criticizing treatment of Manning.

March 18, 2011: ACIS rejects his request, citing an ongoing investigation.

April 19, 2011: DOD announces Manning will be moved to Leavenworth.

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.

24 replies
  1. P J Evans says:

    So, the next question: what is the WH trying to hide about Manning and the way he was treated? What could be that dangerous to this administration (or to some of it)?

  2. greengiant says:

    Go get them John Cornyn. I bet Karl Rove would also, except it might reduce the power of the next Republican president.

  3. greengiant says:

    Is there any on going appeals of this FOIA? or was the ACIS incorrect mealy mouthed ongoing investigation the last word? Maybe the ACIS claims it was investigating Quantico in order to muffle Bradley?

  4. Saul Tannenbaum says:

    I think the most interesting tidbit here is:

    These tapes may also contain a recording of David M. House; I have permission from David House under the Privacy Act to request these records.

  5. emptywheel says:

    @Saul Tannenbaum: Why do you say that? That he had permission from House (Leopold covered that some in his story on the FOIAs, though House refused to comment). Or that House would have been on the recording? Click through to House’s blog post. It’s clear he asked Manning very specific questions about his treatment in response to the allegations and counter-allegations being bandied around.

  6. Saul Tannenbaum says:

    @emptywheel:: It makes it clear that they were in contact at that time. Yes, they moved in the same circles so it’s not a surprise, but I hadn’t seen actual proof before. Then again, I’m digging into some of this stuff for the first time, so I might just be seeing something that everybody else knows about.

  7. rg says:

    @emptywheel: Isn’t it the case that the requested file contains conversations with a third party, which would render that file as not releasable to the public. This is the reason that party’s permission was disclosed in advance.

  8. orionATL says:

    in reading about u.s. attorney carmen ortiz, i read she was tight with holder.

    if so, she would have needed little instruction to ask heymann to double the charges (by “data sllicing” them), and then doubling the penalties and and doubling time up the river.

    the united states department of justice is so about justice under the emperor obama.

  9. orionATL says:

    miss wiki has an interesting tidbit about u.s. attorney caremen ortiz:

    “… Early life and education

    Born in New York City to Puerto Rican immigrant parents, Ortiz grew up in East Harlem. Ortiz says that watching the television show Perry Mason as a child inspired her to become a lawyer. [4] After graduating from The Saint Agnes School in 1974, [5] Ortiz received her B.B.A at Adelphi University in 1978 and worked in her family’s gift shop while attending Adelphi. [1] Ortiz later earned her J.D. at George Washington University Law School in 1981. [5] In the summer of 1980, Ortiz interned at the Public Integrity Section of the United States Department of Justice with Eric Holder, who later become U.S. Attorney General. [6] She also worked on judicial reform in Guatemala with Harvard professor, former Watergate prosecutor, and former deputy attorney general Philip Heymann. [7]…”

    to whit, ortiz interned in 1980 with holder and worked with stephen haymann’s father in guatemala.

  10. Beth says:

    @gregorylent:

    I have to agree with you about the absence of s suicide note.
    It is highly unusual for someone with close ties to family and friends
    as well as close valued associates in his own organization, as well as his relationship with his mentors and attorneys, to commit suicide without leaving a number of notes, even perhaps audio and/or video. Very unusual. It is also unusual for someone as caring as he was about people to arrange his suicide to be found by a loved one, the trauma of which he would have been well aware.

    His psycho-social profile seems to be inconsistent with the circumstances of his death.

    I also find it unusual that he is the 2nd suicide in 2 separate cases of charged cybercrime, close together in time, where both defendants allegedly committed suicide before entering jail. In fact, from what I have read of the cases pending in that office, there were only two large ones. Both young men, both suicides. Same prosecutorial personnel. Prosecutor Heymann received personal awards with his team of Secret Service and FBI on the first case. Public record. Given directly with praise by Eric Holder. This was a close group and very close to the top.

    All of this is speculation and circumstantial observations. Further I did not know the late Aaron Swartz. However, I make my analysis in the context of the our Federal government today, whose covert activities I happen to be familiar with when it concerns how they deal with opposition of any kind to their authority or interests.

  11. None says:

    I would like to bring to your attention that the course of the prosecution of the case against Aaron Swartz did not necessarily originate at the level of the Department Director, Ortiz. In many cases where national interests are involved, many hands go into the pot. In addition, it is not unlike government at high level national security interests for covert operations to take place with only one insider, and in some cases, in parallel covert fashion to what is taking place above board. In other words, there could be other culpable individuals or agencies responsible for injecting additional dynamics into the actions against Aaron Swartz. I’m not saying there were, I am only saying this is how some cases and people are handled.
    When you are identified as a threat to the high levels of government in this country, it is an entirely different ballgame than how any other matter would be handled. And unfortunately, it brings out the absolute worst in the demonstration of power of the Federal government. The term “lethal wrath” might come close to describing it.

  12. greengiant says:

    And just why did Obama declare Manning guilty, and just why did Obama pursue Wikileaks so vigorously, and why did Obama have Manning stripped naked and given the Gitmo interrogation sensory deprivation and drug techniques?

    Did Manning touch the Kenyan cables to destroy Obama’s birth records?

    Or is there something a lot more serious going on that an example has to be made?

  13. Jimmy says:

    Like online petitions, why doesn’t someone set up FOIA requests that can be automated, then dozens to hundreds to thousands of people can follow suit?

  14. emptywheel says:

    @None: Yup.

    As I noted in December 2010, as soon as Holder declared WikiLeaks an Espionage investigation it gave them full PATRIOT powers.

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