Malicious Government Prosecution
Aaron Swartz and the Assault on Open Information
Advocates of open access argue that information should be free, especially when public dollars and public consent, however torturously that consent is extracted, lie at the root of the creation of that information. Yet we live in an age of mounting government secrecy and a relentless push to privatization: of not just our public schools, our public health clinics and a host of other taxpayer-funded civic goods, but of our court proceedings, publicly funded research, and the contortions and conversations that go into creating government policy that our tax dollars bankroll but of which we are denied knowledge. That reality, that great corporate-supported push to hide essential, publicly funded information behind private firewalls and government secrecy, represents a breathtaking breach of the basic tenets of democracy. It is this breach above all else that information freedom activist Aaron Swartz sought to subvert.
As information freedom advocates around the world reeled from Swartz’ death on January 12, the selfsame federal government that brought down its lethal assault on Swartz—the 26-year-old internet visionary was facing more than 30 years in prison for downloading scholarly articles in JStore’s database of research papers bankrolled by your tax dollars and mine—has other information freedom advocates and whistleblowers in its sites, including Bradley Manning, Jeremy Hammond, recently imprisoned ex-CIA officer John Kiriakou (who blew the whistle on Bush-era waterboarding), Julian Assange and the entire WikiLeaks project, to name a few. While the government has asserted ad nauseum that these individuals and projects are under scrutiny—and for Manning and Hammond, under arrest—for “criminal” activity, their real misdeed has been to expose the war crimes, wrongdoing and criminality of the government that seeks to prosecute them and their allies in the corporate sector.
But the scope of the government-sanctioned attack on those who confront and challenge government-sanctioned secrecy is much broader and in some ways, much more banal. Ask any news reporter who’s ever FOIA’d [Freedom of Information Act] a public agency and been forced to sue to access government documents. For that matter, ask any individual who’s tried to view their FBI file or find out why they’ve landed on the no-fly list.
And at the same time that our government is mounting an unprecedented attack on whistleblowers and information freedom activists, the boundaries between corporate power and government-sanctioned repression grow ever more fluid. One need only look at the most recent cache of heavily redacted government documents exposing widespread collusion between public officials, corporate operatives and private security companies to monitor, spy on and disrupt the explicitly non-violent Occupy Wall Street movement.
All of these official efforts to suppress public information happen within the larger context of a criminal “justice” infrastructure so stacked and fundamentally unfair that virtually any individual trapped within its cogs can expect to be crushed. Aaron Swartz was facing that kind of overwhelming government-mounted assault from Massachusetts U.S. Attorney Carmen Ortiz.
“Crime is crime,” one might argue in asserting the right of federal and state prosecutors to advance this kind of judicial persecution. But contrary to the spin routinely handed to us by U.S. and States Attorneys, the role of their offices is not, at least on its face, to win cases. Supreme Court Justice George Sutherland described a federal prosecutor’s job thusly, in Berger v. United States (1935): “The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
Unfortunately, across the United States, in both federal and state courts, that mandate to see that “justice shall be done” is blithely and willfully subverted. One need only look at the wrongful prosecution in Illinois state courts of literally dozens of victims of police torture—many of whom remain behind bars decades after their torture to extract false confessions—to get a sense of the scope of the problem.
And the machine that creates these miscarriages of justice is larger than the courtroom. In Chicago, NATO 5 defendant Sebastian “Sabi” Senakiewicz recently took a plea deal on a truly outrageous fake terrorism charge—several undercover officers befriended him, got him drunk and incited him to claim that he’d concealed a bomb in a Harry Potter book; he had neither a bomb nor a copy of the offending tome—because he just could not bear another day locked in the violent hellhole that is Cook County Jail. The prosecutors promised six months in a boot camp and swift deportation for the legal Polish immigrant in exchange for a guilty plea. Sabi agreed—and instead, Cook County States Attorney Anita Alvarez has pressed for the full four-year prison sentence for this non-crime, with, of course, deportation still pending immediately upon Sabi’s release.
Alvarez and her cop allies widely reviled Senakiewicz as a dangerous radical when they announced his arrest in the run-up to the NATO meeting in Chicago—a meeting that drew thousands of protesters who oppose the U.S. government-backed and U.S.-taxpayer-bankrolled agenda of this lethal military enterprise. Alvarez has now dodged having to defend these slanders in court because the unmitigated violence and misery of Sabi’s pretrial incarceration coerced him into copping a plea.
And the machine for which Alvarez and her law enforcement crime partners work is currently undertaking the same kind of assault on the other NATO 5 defendants, the youngest and most vulnerable of whom has been targeted in jail with threats of bunghole banging and worse—putting him at even greater dependency for “protection” from the very law enforcement officials who would be thrilled if they could coerce him into turning states evidence against his fellow NATO 5 defendants. Never mind if this youngster’s testimony is factually accurate—prosecutors have virtual immunity from being held accountable for winning cases by either concealing evidence that could exonerate a defendant or for presenting bogus evidence.
It bears noting that the “evidence” that law enforcement has marshaled against this youngster was obtained through secretly taped conversations after undercover cops got the under-aged youth blindingly drunk and reportedly incited him to make incriminating statements—another example of criminalization by inebriation incited by undercover police agents.
The cases against the NATO 5 are grounded in a sweeping COINTELPRO-style operation that began at least months before the scheduled May 2012 NATO meeting. That government spying operation has produced no tangible evidence of any threat to public safety—except, of course, the threat from undercover police spies working to criminalize people for seeking to voice their opposition to official U.S. government policy. Bearing in mind that prosecutors are effectively above the law when they cook evidence or engage in sham prosecutions, one must note that the criminal “justice” machine has a wide array of other tactics and strategies at hand to undercut public scrutiny, suppress dissent and conceal evidence of government wrongdoing. In Seattle, prosecutors have jailed activists for refusing to testify in front of a secret grand jury in what supporters say is a widening government fishing expedition designed to thwart public protest and chill dissent.
At the same time, a growing body of evidence reveals a pattern in which undercover government agents, informants or both have actually manufactured, orchestrated and pressured individuals into supporting the very “incidents” the government purports to have thwarted and subsequently successfully prosecuted. Perhaps no recent case is more emblematic of manufactured criminality than the recent plea deals of three Cleveland men, who were charged in a bomb plot—also in the run-up to the May 2012 Chicago NATO protests—wholly manufactured, aided and abetted by the FBI itself, even though several of the alleged “terrorists” repeatedly pleaded to undercover operatives that they wanted nothing to do with any scheme involving violence.
Police spying, government infiltration, entrapment and politicized government prosecutions targeting dissidents and critics of U.S. policy have a long and odious history in the United States—and those government strategies have been wildly popular in the last ten years under both the Bush and Obama administrations. The Obama administration, for example, continues to hold 23 Midwest anti-war and solidarity activists under threat of long prison terms for refusing to cooperate with a grand jury fishing expedition—with an undercover government agent at the heart of the “investigation.” This vendetta follows on the heels of a series of politically motivated prosecutions of Muslim charity groups in the United States—including five defendants in the federal Holy Land Fund prosecution, who were convicted of providing material aid to terrorism based on the secret testimony of an agent of the Israeli state. That case has been described by civil rights attorney Michael Ratner and his colleagues as a politically motivated coproduction of the U.S. government and the State of Israel.
What does this leave us with? A fake domestic war on terror. An officially sanctioned legal assault on those critical of U.S. policy. A government deeply committed to concealing evidence of its wrongdoing. A corporate sector looking to profit from public dollars—by garnering big bucks selling public documents back to the public (a dynamic Aaron Swartz sought to subvert in the case that originally brought him to the attention of the FBI), by using fat-cat government contracts to facilitate spying on the very public that seeks more information on government and corporate wrongdoing, and by secretly colluding with the government to thwart scrutiny and criticism of criminal corporations.
Government secrecy is incompatible with democracy. Aaron Swartz understood that basic precept intimately, and dedicated his brief, brilliant life to unlocking the public domain. So do Bradly Manning, Jeremy Hammond, Julian Assange and the host of other whistleblowers and ethical hactivists who daily challenge government secrecy and concealed corporate complicity in crimes against the public well-being.
Benito Mussolini described fascism as the marriage of state and corporate power. In the United States today, that marriage has been consummated. We ignore this reality at our peril. Yet nothing threatens that lethal alliance as much as open information and public scrutiny—the basis for any effective civic resistance to the predations of creeping fascism and government/corporate collusion to constrict the public domain. The responsibility now lies on all of us to pick up the mantle of Aaron Swartz and every committed hacktivist, criminalized protester and prisoner of conscience by carrying on Aaron’s legacy—and working to dismantle that alliance with everything we’ve got.
—counterpunch, January 15, 2013