Quotulatiousness

January 16, 2013

Prosecutorial abuse and the Swartz case

Filed under: Government, Law, USA — Tags: , , , , — Nicholas Russon @ 13:05

Writing in the Guardian, Glenn Greenwald calls for reform in the way prosecutors are immune from any consequences of their misdeeds:

To begin with, there has been a serious injustice in the Swartz case, and that alone compels accountability. Prosecutors are vested with the extraordinary power to investigate, prosecute, bankrupt, and use the power of the state to imprison people for decades. They have the corresponding obligation to exercise judgment and restraint in how that power is used. When they fail to do so, lives are ruined — or ended.

The US has become a society in which political and financial elites systematically evade accountability for their bad acts, no matter how destructive. Those who torture, illegally eavesdrop, commit systemic financial fraud, even launder money for designated terrorists and drug dealers are all protected from criminal liability, while those who are powerless — or especially, as in Swartz’s case, those who challenge power — are mercilessly punished for trivial transgressions. All one has to do to see that this is true is to contrast the incredible leniency given by Ortiz’s office to large companies and executives accused of serious crimes with the indescribably excessive pursuit of Swartz.

This immunity for people with power needs to stop. The power of prosecutors is particularly potent, and abuse of that power is consequently devastating. Prosecutorial abuse is widespread in the US, and it’s vital that a strong message be sent that it is not acceptable. Swartz’s family strongly believes — with convincing rationale — that the abuse of this power by Ortiz and Heymann played a key role in the death of their 26-year-old son. It would be unconscionable to decide that this should be simply forgotten.

[. . .]

In most of what I’ve written and spoken about over the past several years, this is probably the overarching point: the abuse of state power, the systematic violation of civil liberties, is about creating a Climate of Fear, one that is geared toward entrenching the power and position of elites by intimidating the rest of society from meaningful challenges and dissent. There is a particular overzealousness when it comes to internet activism because the internet is one of the few weapons — perhaps the only one — that can be effectively harnessed to galvanize movements and challenge the prevailing order. That’s why so much effort is devoted to destroying the ability to use it anonymously — the Surveillance State — and why there is so much effort to punishing as virtual Terrorists anyone like Swartz who uses it for political activism or dissent.

The law and prosecutorial power should not be abused to crush and destroy those who commit the “crime” of engaging in activism and dissent against the acts of elites. Nobody contests the propriety of charging Swartz with some crime for what he did. Civil disobedience is supposed to have consequences. The issue is that he was punished completely out of proportion to what he did, for ends that have nothing to do with the proper administration of justice. That has consequences far beyond his case, and simply cannot be tolerated.

Update: Radley Balko‘s latest column is also on the topic of the public prosecutor.

The death of Internet activist Aaron Swartz has generated a lot of discussion about the power of prosecutors — particularly federal prosecutors. This is a good thing. The conversation is long overdue. But the discussion needs to go well beyond on Swartz and the Computer Fraud and Abuse Act.

Prosecutors have enormous power. Even investigations that don’t result in any charges can ruin lives, ruin reputations, and drive their targets into bankruptcy. It has become an overtly political position — in general, but particularly at the federal level. If a prosecutor wants to ruin your life, he or she can. Even if you’ve done nothing wrong, there isn’t a whole lot you can do about it.

There are a number of factors that got us here, and it’s worth looking at them in turn.

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