Aaron Swartz and Obama's brand of rule of law

There's understandably been a lot of discussion about the case of the late Aaron Swartz, hounded into suicide by an overzealous Massachusetts federal prosecutor.

I was particularly struck by this piece from Will Bunch, Aaron Swartz, and the question that none dare ask Obama Attytood 01/14/2013.

He says that he hadn't been following Swartz' case before. But he makes the important connection between this case and Obama Administration's very flawed approach to enforcing the law, as seen in their refusal to prosecute torture perpetrators and their general Look Forward Not Backward approach to letting the wealthy and powerful off the hook for criminal conduct:

On one level, this might be a time for Americans to ask ourselves why the full hammer of the government was coming down on this brilliant young activist whose alleged crime was so dubious, when the same Justice Department has all but ignored the double dealing and financial chicanery that crashed the world economy that erased billions of dollars in 2008, and it has completely looked the other way when it comes to the torture practices that reversed decades of established law and which have been so harmful to America's reputation.

But let's look even beyond that. The persecution of Aaron Swartz can't be passed off as an isolated incident. Instead, with Swartz' suicide, it feels more like the exclamation point on an administration whose commitment to maintaining secrecy, blocking transparency, limiting the flow of information and squelching dissent has been both unexpected and rather shocking.

After all, it was four years this week that Barack Obama became the 44th president, bringing hopes not just that he would stem the economic bleeding and end two seemingly endless wars -- but that he would undo the broader expansion of power and secrecy that took place during the Bush-Cheney years. President Obama has proved -- for reasons that are in many cases not his doing -- to be a remarkably polarizing figure, still seen after four years as a savior by some, while to his enemies he is somewhere on the spectrum between a socialist and the Antichrist. The reality is that while he's a necessary counterweight to the radical extremism of ther Tea Party and has soke praiseworthy accomplishments on issues from health care to gays in the military, he's also expanded the power of the presidency at the expense of the public, just like every other modern chief executive before him. Sometimes alarmingly so.

There have been some other notable essays on the Swartz case from some of my other favorite writers, including:

Charlie Pierce, Breaking Someone With the Law Esquire Politics Blog 01/15/2013:

There is no longer any question that the current administration has decided that the people have an "indisputable, indefeasible, divine right" to only that information which the administration sees fit to release. It has pursued leakers with a vigor that would have impressed the late Egil (Bud) Krogh, except using U.S. Attorneys and not Cuban burglars for hire. It has slapped Bradley Manning into what passes in the 21st Century for a dungeon. It has made a cartoon villain out of the WikiLeaks phenomenon, and out of Julian Assange in particular. I believe that part of the reason that it has adopted the laughable "Look forward and not back" legal strategy as regards to the people guilty of torture, and as regards to the people who wrecked the economy, is that it doesn't want the detailed information about either of those scandals released to the public, which cannot be trusted to behave itself properly. And this administration pursued Aaron Swartz not because he downloaded information, but because he dispersed it. It was the dissemination of the information that brought down on him the abandoned wrath of Carmen Ortiz and her superiors in Washington. It was because Aaron Swartz told us what he knew.

Federal prosecutor Carmen Ortiz: don't ever, ever vote for her for anything

Pierce also connects Swartz' fate with the increasingly authoritarian law-enforcement trends of the last four decades:

Which brings me to my second conclusion -- Aaron Swartz ran facefirst into a law-enforcement and prosecutorial culture that we have allowed to run amok for far too long. It began with drugs. It intensified with the "war on terror." Preventive detention -- though they don't call it that -- has been mainstreamed, due process sacrificed to efficiency. Investigation without cause has been normalized in our daily lives, through mandatory drug testing and roadblocks and a dozen other ways we barely think about any more. Personal privacy has been rendered less important than official secrecy in the general scheme of things. We want -- nay, demand convictions, and all barriers to them be damned.

Scott Horton, Aaron Swartz, RIP No Comment 01/14/2013, points to the kind of prosecutorial strech involved:

Swartz’s woes sprang from a project he undertook to download and make available an enormous collection of academic publications offered free of charge, but with limited numbers of downloads, by the digital library JSTOR. For reasons that baffle most observers, a group of federal prosecutors decided this was a heinous crime, and they publicly attacked Swartz with a series of preposterous and dishonest assertions that nevertheless carried great weight because they were uttered with the authority of the Justice Department. Swartz's motivations were extremely clear: not to steal this academic work product and personally benefit, but to make it more widely available, and to protest the fact that intellectual-property law was being manipulated to benefit not the authors or inventors that the law is designed to protect, but rather commercial interests that were corralling those rights for their own purposes, which were often at odds with sound academic policy.

If that concern was "radical," as prosecutors supposed, then Swartz stood in good company: both Benjamin Franklin and Immanuel Kant, two progenitors of modern intellectual-property law, expressed precisely the same attitudes. Moreover, the prosecutors’ theory rested on a view of the law that is keyed to the interests of corporate predators rather than the public, and that has already been squarely rejected by one federal court of appeals. To its credit, JSTOR quickly saw the injustice of the prosecution, withdrew from it, and criticized the Justice Department’s decision to proceed. MIT's president issued a statement on Sunday afternoon suggesting that MIT's decision to support the Justice Department was mistaken, and announcing that a formal review of the university’s conduct — long demanded by faculty and students, who largely supported Swartz — would now be undertaken.

Swartz' case reminds us that one of the most serious legal problems of the Cheney-Bush Administration were the abuses by federal prosecutors bringing political prosecutions and apparent violations of the civil service law in apply partisan political criteria to Justice Department hires. This brand of official wrongdoing also fell under the protective umbrella of Obama's Look Forward Not Backward policy of refusing to prosecute crimes by the wealthy and powerful. So whatever deterrent value legal and disciplinary action against prosecutorial misconduct might have come from dealing honestly with those abuses in the previous Administration weren't there to deter the overzealous prosecutor who hounded Aaron Swartz to his death for no good reason.

Pierce elaborates further on the prosecutorial abuse in the Swartz case in Still More About the Death of Aaron Swartz Esquire Politics Blog 01/15/2013.

So does Glenn Greenwald in Carmen Ortiz and Stephen Heymann: accountability for prosecutorial abuse The Guardian 01/16/2013.

Marcy Wheeler, who has been following the case, writes about it in DOJ Invoked Aaron Swartz' Manifesto To Justify Investigative Methods Emptywheel 01/14/2013.

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