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Secret Service Claims It’s Still Investigating Now-Deceased Aaron Swartz

After Aaron Swartz died, Jason Leopold FOIAed Secret Service, since that’s the agency that was investigating Swartz when he died.

Curiously, contrary to the FBI — which at least claims to have treated Swartz as they would any other deceased person and turned over all but two pages of his PACER investigation file — Secret Service denied Leopold’s FOIA.

“Disclosure could reasonably be expected to interfere with enforcement proceedings,” they said.

Or, to translate from FOIA-speak, the investigation into Aaron Swartz, who died weeks and weeks ago, is an active investigation.

Most interesting came when USSS’s FOIA officer claimed there was nothing segregable from this “open case.”

We were then transferred to Latita Payne, the Secret Service’s FOIA disclosure officer, who explained to Truthout, “we did a search of our offices [for responsive records] and they responded that it’s an open case.”

Payne said there weren’t any segregable portions of records on Swartz that the Secret Service could release.

Secret Service doesn’t want to turn over Swartz’ file — any of it — because any little bit of it might reveal its investigation into … something. Someone. Presumably not Swartz, since he’s dead.

Now, since USSS first responded to Leopold, they seem to have decided that this answer — the claim they can’t release any files on an investigation into a deceased person — isn’t going to fly, so they’re going to reconsider that answer.

We’ll see how forthcoming that response is.

One other detail. Notice how FBI released its response to Swartz FOIA just long enough before this response so distracted people might think the FBI file is all there is (as if a huge indictment would leave no tracks)? Nice timing.

DOJ Used the Open Access Guerilla Manifesto to Do More than Justify Prosecution, They Justified a Search of Aaron Swartz’ Home

Yesterday, the HuffPo caught up to reporting I did in January, reporting that DOJ used Aaron Swartz’ 2008  Guerilla Open Access Manifesto to justify their investigation of him.

A Justice Department representative told congressional staffers during a recentbriefing on the computer fraud prosecution of Internet activist Aaron Swartz that Swartz’s “Guerilla Open Access Manifesto” played a role in the prosecution, sources told The Huffington Post.

[snip]

The “Manifesto,” Justice Department representatives told congressional staffers, demonstrated Swartz’s malicious intent in downloading documents on a massive scale.

[snip]

Reich told congressional staffers that the Justice Department believed federal prosecutors acted in a reasonable manner, according to the sources. He also made clear that prosecutors were in part influenced by wanting to deter others from committing similar offenses.

When considering punishment, courts are supposed to impose an “adequate deterrence to criminal conduct” under federal statute. Swartz’s “Manifesto,” prosecutors said they believed, made clear that he intended to share the academic articles widely.

But there’s something the HuffPo is still missing.

Not only does the Guerilla Manifesto advocate doing a lot of things that may well be legal — the biggest exception is the one most applicable, downloading scientific journals and upload them to file sharing networks…

And look at the passage from the Manifesto they quote in the brief, which appears in this larger passage.

There is no justice in following unjust laws. It’s time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture.

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. [my emphasis]

In context, much of the manifesto advocates for things that are perfectly legal: sharing documents under Fair Use. Taking information that is out of copyright and making it accessible. Purchasing databases and putting them on the web.

Aside from sharing passwords, about the only thing that might be illegal here (depending on copyright!) is downloading scientific journals and uploading them to file sharing networks.

But it’s the way the government used Swartz’ manifesto legally. They used it, as far as I’ve found, primarily to justify HOW they investigated Swartz.

They used it in a brief rebutting his effort to suppress a number of searches they had done in the investigation.

And that’s significant because of an oddity in the investigation. The government, at first, wasn’t all that quick to investigate Swartz. The let the actual evidence of the alleged crime just sit for weeks and weeks. Read more

DOJ: We Can’t Tell Which Secret Application of Section 215 Prevents Us From Telling You How You’re Surveilled

As Mike Scarcella reported yesterday, the government has moved for summary judgment in an Electronic Privacy Information Center FOIA suit for details on the government’s investigation into WikiLeaks. EPIC first FOIAed these materials in June 2011. After receiving nothing, they sued last January.

The government’s motion and associated declarations would be worth close analysis in any case. All the more so, though, in light of the possibility that the government conducted a fishing expedition into WikiLeaks as part of its Aaron Swartz investigation, almost certainly using PATRIOT Act investigative techniques. The government’s documents strongly suggest they’re collecting intelligence on Americans, all justified and hidden by their never ending quest to find some excuse to throw Julian Assange in jail.

EPIC’s FOIA asked for information designed to expose whether innocent readers and supporters of WikiLeaks had been swept up in the investigation. It asked for:

  1. All records regarding any individuals targeted for surveillance for support for or interest in WikiLeaks;
  2. All records regarding lists of names of individuals who have demonstrated support for or interest in WikiLeaks;
  3. All records of any agency communications with Internet and social media companies including, but not limited to Facebook and Google, regarding lists of individuals who have demonstrated, through advocacy or other means, support for or interest in WikiLeaks; and
  4. All records of any agency communications with financial services companies including, but not limited to Visa, MasterCard, and PayPal, regarding lists of individuals who have demonstrated, through monetary donations or other means, support or interest in WikiLeaks. [my emphasis]

At a general level, the government has exempted what files it has under a 7(A) (ongoing investigation) exemption, while also invoking 1 (classified information), 3 (protected by statute), 5 (privileged document), 6 (privacy), 7(C) (investigative privacy), 7(D) (confidential source, which can include private companies like Visa and Google), 7(E) (investigative techniques), and 7(F) (endanger life or property of someone) exemptions.

No one will say what secret law they’re using to surveil Americans

But I’m most interested in how all three units at DOJ — as reflected in declarations from FBI’s David Hardy, National Security Division’s Mark Bradley, and Criminal Division’s John Cunningham — claimed the files at issue were protected by statute.

None named the statute in question. All three included some version of this statement, explaining they could only name the statute in their classified declarations.

The FBI has determined that an Exemption 3 statute applies and protects responsive information from the pending investigative files from disclosure. However, to disclose which statute or further discuss its application publicly would undermine interests protected by Exemption 7(A), as well as by the withholding statute. I have further discussed this exemption in my in camera, ex parte declaration, which is being submitted to the Court simultaneously with this declaration

In fact, it appears the only reason that Cunningham submitted a sealed declaration was to explain his Exemption 3 invocation.

And then, as if DOJ didn’t trust the Court to keep sealed declarations secret, it added this plaintive request in the motion itself.

Defendants respectfully request that the Court not identify the Exemption 3 statute(s) at issue, or reveal any of the other information provided in Defendants’ ex parte and in camera submissions.

DOJ refuses to reveal precisely what EPIC seems to be seeking: what kind of secret laws it is using to investigate innocent supporters of WikiLeaks.

By investigating a publisher as a spy, DOJ gets access to PATRIOT Act powers, including Section 215

There’s a very very large chance that the statute in question is Section 215 of the PATRIOT Act (or some other national security administrative subpoena). After all, the FOIA asked whether DOJ had collected business records on WikiLeaks supporters, so it is not unreasonable to assume that DOJ used the business records provision to do so.

Moreover, the submissions make it very clear that the investigation would have the national security nexus to do so. While the motion itself just cites a Hillary Clinton comment to justify its invocation of national security, both the FBI and the NSD declarations make it clear this is being conducted as an Espionage investigation by DOJ counterintelligence people, which — as I’ve been repeating for over two years — gets you the full PATRIOT Act toolbox of investigative approaches.

Media outlets take note: The government is, in fact, investigating a publisher as a spy. You could be next.

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Did the MIT Police Stake Out Aaron Swartz’ Home on January 6, 2011?

One of the details I’ve been puzzled by in the Aaron Swartz story is how MIT Police Captain Albert Pierce happened to locate Aaron on January 6, 2011. After all, Aaron was filmed in the circuit closet at 12:32 PM, but left by 12:34. He went from there to MIT’s Student Center, where he plugged his computer in again. MIT must have lost track of him, because they didn’t find his computer until 3PM, and they found it by looking for the computer ID, not by tracking Aaron’s path. Aaron wasn’t found until 2:11, when Pierce saw him riding his bike down Massachusetts Avenue.

What are the chances, I’ve been wondering, that this Captain–possibly in the company of Secret Service Agent Michael Pickett (the NYT seems to suggest they were together; the arrest report suggests Pickett got called in)–found Aaron just riding down Mass Ave?.

I think Saul has provided the answer.

The map above shows the location of the two MIT buildings (in the lower right) and where Aaron was arrested on Lee Street (Saul did a more complete map here, also showing the Secret Service office). The fourth dot shows where Aaron lived at the time: 950 Mass Ave.

In other words, Pierce just happened to be less than two blocks away from Aaron’s home when he spotted him.

That would solve one mystery, but raises another one: how did they ID Aaron?

Though that one is pretty easy to solve, too. After all, when the CPD and Secret Service first checked the laptop on January 4, they fingerprinted the computer. In addition, they had pictures from Swartz’ entry that day.

It would have been very easy to find a picture of Aaron. I’m more curious whether authorities had his fingerprint on file, though. I guess we’ll learn that when his full FBI file gets liberated.

In any case, if Pierce was, in fact, staking out Aaron’s house (what is the MIT cops’ authority to do that, anyway?), then it would suggest they knew exactly who he was before they arrested him.

Update: The affidavit used to get a warrant for Aaron’s USB made this claim.

An MIT police officer who had seen several pictures taken by the covert camera in Building 16’s network wiring closet saw Aaron Swartz on a bicycle near MIT, approximately half an hour after the “ghost laptop” had been connected in Building W20.

Yep, that’s a load of half-truth.

Leaked Details of MIT Investigation

The NYT reports details that must come from MIT’s investigation–though the spokesperson insists it’s a review–of its involvement in Aaron Swartz’ arrest and conviction.

There are a few I find of particular interest.

First, MIT claims it learned that Aaron was still downloading JSTOR materials on January 3.

However, on Jan. 3, 2011, according to internal M.I.T. documents obtained by The New York Times, the university was informed that the intruder was back — this time downloading documents very slowly, with a new method of access, so as not to alert the university’s security experts.

Court documents say JSTOR informed MIT about this around Christmas.

The NYT references “a security expert” analyzing MIT’s network.

Early on Jan. 4, at 8:08 a.m., according to Mr. Halsall’s detailed internal timeline of the events, a security expert was able to locate that new method of access precisely — the wiring in a network closet in the basement of Building 16, a nondescript rectangular structure full of classrooms and labs that, like many buildings on campus, is kept unlocked.

This is a detail I’ve long wondered about: who was the expert and what tools did she or he use?

And then there’s the thoroughly unsurprising news that Michael Pickett was with MIT’s head cop when they found Aaron on January 6, 2011.

A little after 2 p.m., according to the government, Mr. Swartz was spotted heading down Massachusetts Avenue within a mile of M.I.T. After being questioned by an M.I.T. police officer, he dropped his bike and ran (according to the M.I.T. timeline, he was stopped by an M.I.T. police captain and Mr. Pickett).

Anyone want to bet they were using some fancy surveillance to find Aaron?

Our Government’s UnPATRIOTic Investigation of Aaron Swartz

As I noted back in December 2010, as soon as Eric Holder declared WikiLeaks’ purported crime to be Espionage, it opened up a whole slew of investigative methods associated with the PATRIOT Act. It allowed the government to use National Security Letters to get financial and call records. It allowed them to use Section 215 orders to get “any tangible thing.” And all that’s after FISA Amendments Act, which permits the government to bulk collect “foreign intelligence” on a target overseas–whether or not that foreign target is suspected of Espionage–that includes that target’s communications with Americans. The government may well be using Section 215 to later access the US person communications that have been collected under an FAA order, though that detail is one the government refuses to share with the American people.

At no point would a judge have the opportunity to challenge Holder’s assertion that a website publishing documents offered up anonymously is engaged in Espionage. All it would take is Holder’s assertion that it was, and those investigative powers would become available.

No matter how many Americans got sucked up into that investigation.

Which is why I find it interesting that Aaron Swartz’ lawyers were asking, last summer–but got only indirect answers–about how the government had collected some of the evidence, particularly emails, turned over to the grand jury.

This paragraph asked the government to “identify the origin of any and all statements of Aaron Swartz including but not limited to emails, text messages, chats, documents, memoranda or letters, i.e., to identify the source from which each statement was received and the legal procedure used to obtain each such statement of the defendant.” Swartz has received in discovery internet memoranda and chats purporting to be from him. For example, the discovery contains a number of chats on googlegroups.com which contain entries which facially indicate that Swartz was a participant in the communications. The discovery also contains a number of emails which on their faces indicate that they were either to or from Swartz. Swartz requires the additional information requested – the source of these statements and the procedure used by the government to obtain them – to enable him to move to suppress such statements if grounds exist to do so, which he cannot determine without the requested information.

The government offered this explanation.

In Paragraph 15, the defendant would require the government to identify the origin of any and all statements of Aaron Swartz in its possession and the legal procedure used to obtain the statements. All of the emails, text messages, chat sessions, and documents containing statements provided by the defendant relevant to this case were obtained either from individuals with whom the defendant communicated or from publicly available websites stored on the Internet. No emails, texts messages, chat logs, or documents were obtained from Internet service providers using orders under 18 U.S.C. 2703(d). As previously represented to defense counsel, there was no court-authorized electronic surveillance in this case. [my emphasis]

The government admits the defense has asked for the content and origin of all Aaron’s statement in its possession. In response, it described how it had gotten Aaron’s statements relevant to this case–which may well be just a subset of Aaron’s statements in their possession. It also says that it did not obtain any of his statements (presumably referring to the larger potential universe) using 18 USC 2703(d), which is how DOJ demanded Twitter information on four WikiLeaks figures in late 2010 to early 2011. It suggests everything it got relevant to this case was either willingly from people involved in private conversations with him–though it didn’t say whether it asked for them specifically or not–or from publicly available places. And it alludes to an earlier representation to the defense about whether or not it had intercepted Aaron’s communications in this case.

I believe these are the representations in question, which comes from early discovery discussions in August 2011.

C. Electronic Surveillance under Local Rule 1 16.1 (C)(l)(c)

No oral, wire, or electronic communications of the defendant as defined in 18 U.S.C. § 2510 were intercepted relating to the charges in the indictment.

D. Consensual Interceptions under Local Rule 1 16.1 (C)(l)(d)

There were no interceptions (as the term “intercept” is defined in 18 U.S.C. § 2510(4)) of wire, oral, or electronic communications relating to the charges contained in the indictment, made with the consent of one of the parties to the communication in which the defendant was intercepted or which the government intends to offer as evidence in its case-in-chief.

As you can see, in this statement the government made in August 2011 anticipated some of the same dodges the government was making in June 2012.

But in the earlier statement, the limitation on its assertions are even narrower than the later one. Whereas by June 2012 they were making assertions about “this case” in general, when they first discussed the issue, they discussed only the communications related to “the charges contained in the indictment” (though presumably they may have still been considering other charges).

Also, the second paragraph makes it very clear it is discussing intercepts only as defined under the Title III definition for intercept, which pertains to communications collected in transit. I’m not sure what the government considers communications collected under FISA and stored, though I would not be surprised, given all the discussions about the government yoking Section 215 onto FAA if they had some creative treatment of those US person communications.

None of that is proof that they had accessed Swartz’ communications via other means or, indeed, that they have any communications outside those pertaining directly to JSTOR downloads.

But their very careful hedges sure seem to leave that possibility open.

 

The Fishing Expedition into WikiLeaks

If, as WikiLeaks claims, Aaron Swartz:

  • Assisted WikiLeaks
  • Communicated with Julian Assange in 2010 and 2011
  • May have contributed material to WikiLeaks

Then it strongly indicates the US government used the grand jury investigation into Aaron’s JSTOR downloads as a premise to investigate WikiLeaks. And they did so, apparently, only after the main grand jury investigation into WikiLeaks had stalled.

(See this Verge article on the ways these tweets appear to violate WikiLeaks’ promises of confidentiality.)

As I noted in this post, when Aaron’s lawyer requested discovery last June, he wanted material that had been subpoenaed or otherwise collected but not turned over in discovery–material that does not have an obvious tie to Aaron’s relatively simple alleged crime of downloading journal articles from JSTOR.

These paragraphs request information relating to grand jury subpoenas. Paragraph 1 requested that the government provide “[a]ny and all grand jury subpoenas – and any and all information resulting from their service – seeking information from third parties including but not limited to Twitter. MIT, JSTOR, Internet Archive that would constitute a communication from or to Aaron Swartz or any computer associated with him.” Paragraph 4 requested “[a]ny and all SCA applications, orders or subpoenas to MIT, JSTOR, Twitter, Google, Amazon, Internet Archive or any other entity seeking information regarding Aaron Swartz, any account associated with Swartz, or any information regarding communications to and from Swartz and any and all information resulting from their service.” Paragraph 20 requested “[a]ny and all paper, documents, materials, information and data of any kind received by the Government as a result of the service of any grand jury subpoena on any person or entity relating to this investigation.”

Swartz requests this information because some grand jury subpoenas used in this case contained directives to the recipients which Swartz contends were in conflict with Rule 6(e)(2)(A), see United States v. Kramer, 864 F.2d 99, 101 (11th Cir. 1988), and others sought certification of the produced documents so that they could be offered into evidence under Fed. R. Evid. 803(6), 901. Swartz requires the requested materials to determine whether there is a further basis for moving to exclude evidence under the Fourth Amendment (even though the SCA has no independent suppression remedy).

[snip]

Moreover, defendant believes that the items would not have been subpoenaed by the experienced and respected senior prosecutor, nor would evidentiary certifications have been requested, were the subpoenaed items not material to either the prosecution or the defense. Defendant’s viewing of any undisclosed subpoenaed materials would not be burdensome, and disclosure of the subpoenas would not intrude upon the government’s work product privilege, as the subpoenas were served on third parties, thus waiving any confidentiality or privilege protections. [my emphasis]

Given that this material (I’m particularly interested in the material Amazon returned to the grand jury, though also the Twitter and Google material, which after all, the main WikiLeaks grand jury requested for public WikiLeaks figures) had not been turned over to Aaron’s defense almost a full year after he was indicted, it’s fairly clear it did not pertain to (or certainly was not necessary to prove) the charges against him, which related to JSTOR.

Yet prosecutor Stephen Heymann had used a grand jury he was using to investigate that JSTOR download–a grand jury that appears not to have gotten started in earnest until the main WikiLeaks grand jury had stalled–to collect information that appears directly relevant to the WikiLeaks grand jury. And he collected it in a form such that could be directly entered as evidence into that WikiLeaks grand jury.

Let me clear about two things. First, I think this is perfectly within the range of what grand juries do. If the government suspected–and they appear to have–that Aaron’s JSTOR downloads were part of a larger effort, then it’s not surprising they investigated broadly to determine whether it was. That’s part of the significant power of grand juries–they can expand in secret to fish for other crimes. As judge Judith Dein said when rejecting Aaron’s effort to see what the government had gotten from these subpoenas, citing US v. Dionisio, “A grand jury’s investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.”

But even after this fishing expedition (and I hope to show in a later post just how broad it appears to have been), Heymann apparently came up with no evidence that Aaron had broken any laws related to whatever he did with and for WikiLeaks (again, assuming WikiLeaks’ assertions are correct). After investigating for over a year, Heymann added no charges pertaining to WikiLeaks.

He just ratcheted up the charges related to JSTOR.

It appears the government tried–and failed–to establish a criminal connection between Aaron and WikiLeaks. And when they failed to do that, they increased their hardline stance on the JSTOR charges.

The Six Week Delay in the Swartz Investigation

I want to explain something about this post.

As I noted, the same day that Aaron Swartz resubmitted his FOIA on Bradley Manning’s treatment, the Secret Service got a warrant to search most of the hardware captured on the day he was arrested (a USB on his person and a laptop and hard drive found elsewhere on MIT’s campus), as well as his home (and they subsequently got a warrant to search his office at Harvard).

Some people were either confused or skeptical there was a connection.

But whether or not there’s a connection, there’s something funky about the Swartz investigation in the first half of 2011.

He was arrested very quietly on January 6; I suspect the reason few people knew about it was because no one expected it to amount to anything.

And for a while, it didn’t.

The Secret Service officer on the case, Michael Pickett, raised the issue of warrants on January 7–the day after Swartz was arrested. But the government didn’t get around to actually getting warrants to search this hardware until February 9, over a month later.

Here’s the warrant and supporting affidavit ultimately used for the hardware (except his phone, which was also seized).

But as this defense motion makes clear, there was a further delay after that first February 9 warrant. The Secret Service let the February 9 warrants for the hardware expire, and had to get new warrants on February 24.

Here, there was a 34-day delay in obtaining the February 9, 2011, warrant, which remained unexecuted, and a total of a 49-day delay until the obtaining of the February 24, 2011, warrant pursuant to which the items were ultimately searched.

[snip]

On the other side of the balance, defendant knows of no conceivable reason which could justify a delay of this magnitude.

And while it’s not central to this post, in the motion Swartz’ lawyer cited a slew of Circuit Court opinions (though none from the First Circuit) throwing out searches on computers after this kind of delay.

In other words, after getting control of this investigation, Secret Service largely let it slide, potentially fatally so for any prosecution.

Which is why it’s interesting that, when the Secret Service finally summoned the energy (or got the okay from AUSA Stephen Heymann) to start this investigation, it was more interested in investigating Swartz’ home than in investigating his hardware–the stuff that directly tied to the crime purportedly in question.

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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.

John Cornyn Asks Eric Holder if Aaron Swartz Prosecuted because of FOIA Requests

John Cornyn just sent a letter to Eric Holder asking a series of questions about the Aaron Swartz prosecution. (h/t Julian Sanchez) Many of them are utterly appropriate coming from a member of the Senate Judiciary Committee: why Carmen Ortiz said the prosecution was “appropriate,” whether DOJ’s prior investigations, plural, of Swartz had had an influence on their conduct, why Ortiz filed the superseding indictment. Kudos to Cornyn for conducting oversight, as intended.

But here’s a question I didn’t expect, the second of seven questions.

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.

It’s one thing to ask whether Swartz was targeted–and he appears to have been–for his advocacy on Open Access and Internet freedom.

But to ask whether this was retaliation for his use of FOIA? As far as I know, only Jason Leopold and I have even looked at his FOIAs in relation to his prosecution, and only for insight onto how he responded to it.