Aaron Swartz's Prosecutors Employ Outrageous Bullying Tactics as Standard Operating Procedure
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Although her office failed to win the 25-year minimum sentence she had requested, Ms. Ortiz said that Mehanna “faced the consequences of his actions, for conspiring to support terrorists, for conspiring to kill Americans overseas, and for lying to the FBI.”
At his sentencing hearing, Mr. Mehanna claimed he was being persecuted for not cooperating with the FBI, which had pressured him to join its sprawling, thousands-strong network of paid informants and provocateurs (the prime source of most federal terrorism indictments since 9/11):
As I was walking to my car I was approached by two federal agents. They said that I had a choice to make: I could do things the easy way, or I could do them the hard way. The “easy ” way, as they explained, was that I would become an informant for the government, and if I did so I would never see the inside of a courtroom or a prison cell. As for the hard way, this is it. Here I am, having spent the majority of the four years since then in a solitary cell the size of a small closet, in which I am locked down for 23 hours each day. The FBI and these prosecutors worked very hard — and the government spent millions of tax dollars – to put me in that cell, keep me there, put me on trial, and finally to have me stand here before you today to be sentenced to even more time in a cell.
As I pointed out in an article discussing the assassination by drone strike of American-born cleric Anwar al-Awlaki, legal precedent holds that independent political speech—no matter how heinous and suggestive—is protected unless it passes the Brandenburg testof inciting imminent lawless behavior. According to this reading of the law, whether Mehanna simply agreed with al-Qaeda’s message and promoted his own views in that vein or was deliberately ordered to do so by al-Qaeda members, he was still engaging in constitutionally protected speech.
But the Holder interpretation establishes that coordination between a designated terrorist organization and an individual, even to the point of providing that organization with advice to lay down arms and pursue non-violence, constitutes material support for terrorism. This was the precedent cited in finding that Mr. Mehanna was conspiring with terrorist organizations by virtue of his advocacy.
One can debate whether or not that’s an appropriate legal restriction on free speech, and how the Holder ruling can be reconciled with Brandenburg. What shouldn’t be up for debate is the practice of threatening defendants with draconian outcomes—bankruptcy, 25 years in prison—to leverage guilty pleas to lesser crimes or on-going cooperation with the government.
For Carmen Ortiz, Russ Caswell was like the weakest kid on the block who was wearing something she, or the agencies her office represents, coveted. In the cases of Aaron Swartz, Tarek Mehanna and John O’Brien, Ms. Ortiz’s fervency seems to have stemmed from the publicity such cases were sure to generate. All the defendants insisted on their innocence and fought the charges. The jury’s still out on O’Brien and Caswell, but Swartz and Mehanna have paid the price for their defiance.
Although the conduct of Ms. Ortiz’s office may seem disproportionately harsh, this is unfortunately par for the course. Rather than a procedure dictated from Washington, U.S. attorneys and local D.A.’s enjoy broad discretion in the charges they press. Thanks to tough-on-crime laws and mandatory-minimum sentencing, prosecutors are able to extort—if they so choose—a quick end to the proceedings and a headline-worthy admission of guilt. To single out the conduct of Carmen Ortiz as an anomaly of America’s system of mass incarceration would be to misunderstand its character. She is a symptom of the entire disease.