No Comment — January 18, 2013, 12:43 pm

Carmen Ortiz Strikes Out

Congress prepares to slap down prosecutors linked to the suicide of Aaron Swartz

U.S. Attorney Carmen Ortiz is fighting to hold on to her job, and to avoid an embarrassing grilling in Congress and possible professional disciplinary proceedings. Her prospects look grim. Rep. Darrell Issa (R., Calif.), chair of the House Committee on Oversight is pledging a vigorous and critical inquiry into her management of the dubious criminal prosecution of Aaron Swartz, one of the greatest computer prodigies of his generation, who committed suicide a week ago, apparently convinced that out-of-control prosecutors had destroyed his life. While Issa’s prior attempts to take aim at the DOJ have fizzled, this one is garnering significant bipartisan support: Zoe Lofgren (D., Calif.) is introducing “Aaron’s Law,” expressly overturning the interpretations upon which Ortiz proceeded against Swartz, while Jared Polis (D., Colo.) blasted the prosecutor’s case as “ridiculous and trumped-up.” Senator Elizabeth Warren (D., Mass.), who would have a say in the appointment of Ortiz’s successor, was unstinting in her praise for Swartz as a person who “wouldn’t hurt a fly” and whose acts demonstrated a “powerful commitment” to the betterment of society. Nancy Gertner, a recently retired federal judge who is intimately familiar with both prosecutors, lambasted them in a broadcast interview, parsing and ridiculing the claims they had made against Swartz and suggesting that the case should have been dismissed. At funeral services in Highland Park, Illinois, on Tuesday, Swartz’s father charged that his son had been “killed by the government.” While some might ascribe this to the anguish of a bereaved father, scholars and investigators poring over the record of the Swartz prosecution are increasingly shocked at the scope and outrageousness of the prosecutorial misconduct that he faced. 

Prosecutors Ortiz and Stephen Heymann turned to a standard trick while pursuing the case, mounting a total of thirteen felony counts against Swartz and arguing that his college prank aimed at “liberating” a collection of academic articles with little commercial value was a serious crime. Although each of these counts bordered on the preposterous, Ortiz and Heymann clearly reckoned that at least one or two would stick during the jury-room bargaining process. More to the point, they assumed that the risk of their success even on bogus charges would be enough to pressure Swartz into accepting a guilty plea on all the counts in exchange for a reduced sentence — which is what they offered him. The process was fundamentally corrupt and shameful. But observers of the American criminal-justice system also know that it was a common one.

The details that have emerged since Swartz’s death have only strengthened calls for the removal and punishment of the prosecutors. Swartz’s lawyers revealed, for example, that when their client’s suicidal nature was noted during their failed efforts to get the charges reduced to a misdemeanor level, Heymann responded by saying “Fine, we’ll lock him up.” Prosecutors were also revealed to have offered a reduced sentence, but only if Swartz pleaded guilty to every charge. This is clear evidence of oppression geared to advance prosecutorial careers, not to serve the interests of justice. Britain’s Daily Mail showed that Swartz was not the only youthful alleged hacker whom Heymann had hounded to suicide — twenty-four-year-old Jonathan James took his own life in 2008, six months after his home was searched in a raid coordinated by Heymann. The DOJ undertook no internal probe of that case, instead giving Heymann an award for “distinguished service.” In the Swartz case, the prosecutors claimed they were acting on behalf of two injured parties — JSTOR and MIT. But JSTOR disagreed with this characterization, including the attorneys’ use of the word “theft,” and demanded that they drop the case. And unnamed sources at MIT this week pointed their fingers at the federal prosecutors, insisting that their unreasonableness and intransigence had kept the case moving despite dishonest charges. 

Ortiz’s first defender was her husband, who, without disclosing their relationship, issued a series of false statements on Twitter before being exposed and then deleting them. Now Ortiz has come forward to speak for herself. Her statement offers no apology to Swartz’s family; audaciously whitewashes the facts by stating that she never claimed Swartz sought to profit from the publication of the papers, when in fact she repeatedly implied exactly that; and shows no remorse or contrition. She states that she is unable to respond to charges that her conduct led to Swartz’s death, but tenaciously insists that what she did was “appropriate.”

The flaw in Ortiz’s posture has been laid bare by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In United States v. Nosalhe dismissed the theory Ortiz used to go after Swartz, saying it would potentially criminalize “everyone who uses a computer in violation of computer use restrictions — which may well include everyone who uses a computer.” Kozinski was born and raised in Communist Romania, and knows a thing or two about totalitarian states — and he knows that prosecutorial overbreadth is their leitmotif. If conduct can be charged so broadly as to cover virtually everyone, then prosecutorial discretion effectively becomes a license to persecute anyone who stands in the state’s way. Radley Balko and Clive Crook have each focused on this concern about the Swartz case. I share the essence of their analyses.

The question remains why the DOJ targeted Swartz to such an extent. The DOJ insists that the case grew entirely out of his prank at MIT, and the timeline supports this claim. However, those facts supply no meaningful rationale for their prosecutorial vendetta. On the other hand, Swartz aggressively opposed theories, pioneered by prosecutors like Heymann and Ortiz, that were designed to make the DOJ into a cyberspace police force with power to act against anyone who provoked their concern. He provided articulate, effective opposition, and regularly trumped DOJ initiatives in forums that offered fair debate. His vision of cyberspace placed a premium on the empowerment of individuals and their free access to information — offering an essential updating of the Enlightenment values of the American founders that was sharply at odds with the Justice Department’s schemes. The DOJ values secrecy over publicity, the property rights of corporations over the rights of authors and inventors, and puts a premium on the power of the state to silence voices on the Internet that it views as a threat. Their objective was clearly not to kill Swartz, but they did want to silence him by stigmatizing him and locking him away in prison.

Ortiz’s refusal, even at this late point, to come to terms with her gross misconduct is hardly surprising. She is after all a political figure with political aspirations, and the rules of American politics dictate that one should never admit a mistake, instead pushing blame onto others — here, an Internet prodigy who can no longer defend himself. But it does reinforce her image as a bully who has abused her power and is incapable of reexamining serious mistakes. Past experience suggests that the DOJ itself will behave the same way — closing ranks behind her, hiding the identities of those who collaborated in the tragedy, and concealing vital evidence. For all these reasons, an aggressive, thorough, and public congressional probe with bipartisan support is the necessary next step. Ortiz and her collaborators in this tragedy have serious questions to answer.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 169 years of
Harper’s for only $23.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

November 2019

Men at Work

= Subscribers only.
Sign in here.
Subscribe here.

To Serve Is to Rule

= Subscribers only.
Sign in here.
Subscribe here.

The Bird Angle

= Subscribers only.
Sign in here.
Subscribe here.

The K-12 Takeover

= Subscribers only.
Sign in here.
Subscribe here.

The $68,000 Fish

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Men at Work·

= Subscribers only.
Sign in here.
Subscribe here.

“You’re being reborn,” the voice says. “Exiting the womb of your mother. Coming into the earth as a small baby. Everything is new.” It is a Saturday morning in mid-March, and right now I’m lying on a yoga mat in a lodge in Ohio, surrounded by fifty other men who’ve come to the Midwest for a weekend of manhood-confirming adventures. The voice in question belongs to Aaron Blaine, a facilitator for Evryman, the men’s group orchestrating this three-day retreat. All around me, men are shedding tears as Blaine leads us on a guided meditation, a kind of archetypal montage of Norman Rockwell boyhood. “You’re starting to figure things out,” he says, in somniferous baritone. “Snow, for the first time. Sunshine. Start to notice the smells, the tastes, the confusion. The fear. And you’re growing. You’re about ten years old. The world’s huge and scary.”

Even though it’s only the second day of the Evryman retreat, it’s worth noting that I’ve already been the subject of light fraternal teasing. Already I’ve been the recipient of countless unsought hugs. Already I have sat in Large Groups and Small Groups, and watched dozens of middle-aged men weep with shame and contrition. I’ve had a guy in the military tell me he wants to be “a rock for his family.” I’ve heard a guy from Ohio say that his beard “means something.” Twice I’ve hiked through the woods to “reconnect with Mother Nature,” and I have been addressed by numerous men as both “dude” and “brother.” I have performed yoga and yard drills and morning calisthenics. I’ve heard seven different men play acoustic guitar. I’ve heard a man describe his father by saying, “There wasn’t a lot of ball-tossing when I was growing up.” Three times I’ve been queried about how I’m “processing everything,” and at the urinal on Friday night, two men warned me about the upcoming “Anger Ceremony,” which is rumored to be the weekend’s “pièce de résistance.”

Article
To Serve Is to Rule·

= Subscribers only.
Sign in here.
Subscribe here.

The WASP story is personal for me. I arrived at Yale in 1971 from a thoroughly mediocre suburb in New Jersey, the second-generation hybrid of Irish and Italian stock riding the postwar boom. Those sockless people in Top-Siders, whose ancestors’ names and portraits adorned the walls, were entirely new to me. I made friends with some, but I was not free of a corrosive envy of their habitus of ease and entitlement.

I used to visit one of those friends in the Hamptons, in the 1970s, when the area was about wood-paneled Ford station wagons, not Lamborghinis. There was some money in the family, but not gobs, yet they lived two blocks from the beach—prime real estate. Now, down the road from what used to be their house is the residence of Ira Rennert. It’s one of the largest private homes in the United States. The union-busting, pension-fund-looting Rennert, whose wealth comes from, among other things, chemical companies that are some of the worst polluters in the country, made his first money in the 1980s as a cog in Michael Milken’s junk-bond machine. In 2015, a court ordered him to return $215 million he had appropriated from one of his companies to pay for the house. One-hundred-car garages and twenty-one (or maybe twenty-nine) bedrooms don’t come cheap.

Article
The Bird Angle·

= Subscribers only.
Sign in here.
Subscribe here.

I slept for a good seven hours on the overnight flight from Spain to Peru, and while I slept I dreamed that I was leading American visitors around a park in Berlin, looking for birds on a hazy, overcast day. There wasn’t much to see until we noticed a distant commotion in the sky. Large raptors were panicking, driven back and forth by something threatening them from above. The commotion moved closer. The clouds parted, an oval aperture backed with blue. In it two seraphim hovered motionless. “Those are angels,” I told the group.

They were between us and the sun, but an easy ­I.D. Size aside, no other European bird has two sets of wings. The upper wings cast their faces into shadow. Despite the glare I could make out their striking peaches-­and-­cream coloration. Ivory white predominates, hair a faint yellow, eyes blue, wings indescribably iridescent. Faces blank and expressionless, as with all birds.

Article
The K-12 Takeover·

= Subscribers only.
Sign in here.
Subscribe here.

Last May, the families of students at Cypress Academy, an independent charter school in New Orleans, received an email announcing that the school would close when classes ended the following week and that all its students would be transferred to another nearby charter for the upcoming year. Parents would have the option of entering their children in the city’s charter-enrollment lottery, but the lottery’s first round had already taken place, and the most desirable spots for the fall were filled.

Founded in 2015, a decade after New Orleans became the nation’s first city to begin replacing all its public schools with charters, Cypress was something of a rarity. Like about nine in ten of the city’s charter schools, it filled spaces by lottery rather than by selective admission. But while most of the nonselective schools in New Orleans had majority populations of low-income African-American students, Cypress mirrored the city’s demographics, drawing the children of professionals—African-American and white alike—as well as poorer students. Cypress reserved 20 percent of its seats for children with reading difficulties, and it offered a progressive education model, including “learning by doing,” rather than the strict conduct codes that dominated the city’s nonselective schools. In just three years, the school had outperformed many established charters—a particular feat given that one in four Cypress students had a disability, double the New Orleans average. Families flocked to Cypress, especially ones with children who had disabilities.

Article
Five Stories·

= Subscribers only.
Sign in here.
Subscribe here.

how high? that high

He had his stick that was used mostly to point at your head if your head wasn’t held up proudly.

I still like that man—Holger! He had been an orphan!

He came up to me once because there was something about how I was moving my feet that wasn’t according to the regulations or his expectations.

The room was a short wide room with a short wide window with plenty of artificial light.

Cost of renting a giant panda from the Chinese government, per day:

$1,500

A recent earthquake in Chile was found to have shifted the city of Concepción ten feet to the west, shortened Earth’s days by 1.26 microseconds, and shifted the planet’s axis by nearly three inches.

The first person awarded the title of royal consort in Thailand had her title removed for trying to “elevate herself to the same state as the queen” and “disloyalty.”

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Jesus Plus Nothing

= Subscribers only.
Sign in here.
Subscribe here.

By

At Ivanwald, men learn to be leaders by loving their leaders. “They’re so busy loving us,” a brother once explained to me, “but who’s loving them?” We were. The brothers each paid $400 per month for room and board, but we were also the caretakers of The Cedars, cleaning its gutters, mowing its lawns, whacking weeds and blowing leaves and sanding. And we were called to serve on Tuesday mornings, when The Cedars hosted a regular prayer breakfast typically presided over by Ed Meese, the former attorney general. Each week the breakfast brought together a rotating group of ambassadors, businessmen, and American politicians. Three of Ivanwald’s brothers also attended, wearing crisp shirts starched just for the occasion; one would sit at the table while the other two poured coffee. 

Subscribe Today