Why Isn't the DOJ Briefing about Swartz Going to Be Open?

Department of Justice building in Washington, DC in 2009. Photo by Pete Eimon.

You can always tell when a developing story isn't quite serving the Silicon Valley agenda -- the tech press herd hides, and you can't find them in Google or see them covering the topic even by going to their sites and blogs. Lefties complain about the New York Times not covering every hearing and development in the Bradley Manning case, but I'll tell you who else doesn't: all those tech sites that golf-clap for hackers or openly incite them. Why?

If you search for stories about Swartz and the DOJ today, you will find last week's story about Darrell Issa and Elijah Cummings writing a letter demanding answers about what they charge is overzealous prosecution. There's plenty of tech press coverage about that -- it was instant because from Issa's lips to their ears.

But now that the congressman from Silicon Valley has gotten his way, and the DOJ has said they will in fact give the House Oversight Committee a hearing  briefing, only Boston.com, i.e. the mainstream liberal press has noted it, and Amazon.

Amazon, to whose servers, I might add, Swartz sent some of the files he "liberated" in his PACER projects (and I wonder what else); Amazon, about which Swartz tried a FOIA and sought advice from privacy guru Chris Soghian.

But the Boston Globe failed to note that the briefing is closed; we needed Amazon to find that out:

Representative Darrell Issa, chairman of the House Oversight and Government Reform Committee, said yesterday the Justice Department had pledged to give the panel’s members a closed briefing on the case against Swartz.

Yet not a single tech blog anywhere is complaining about this *closed* briefing (a briefing is less than a hearing). Nobody but me is complaining that it is closed (on Twitter). Why can't we have an open briefing about the open source movement's pride and joy opening up and liberating files for the people?

What's up?

Briefings have to be closed if there is some classified material or witness that has to be protected (Benghazi). Is this because the case does relate to Bradley Manning?

I thought I'd ask Adrian Lamo, the hacker who chatted with Manning and then turned over his chats to the FBI because he was concerned at the harm that could be caused to people over careless revelations. This allegedly reformed hacker, himself targeted by law-enforcement for his hacking, is universally loathed by his fellow hackers as a "snitch". I'm willing to credit him with a patriotic deed, or if not quite that, at least a deed that showed some care and concern about the sources in the cables and files who would be harmed -- and were harmed.

Lamo replied:

Adrian Lamo ‏@6

@catfitz I couldn't begin to speculate at this juncture. I have nothing to do /w DOJ. They do their own thing. It is what it is.

Mkay. I have a feeling that he could speculate a lot more than he has, even if we are to take his claim of no more cooperation with the government (or maybe he is pedantically making a distinction between the FBI and DOJ).

I'm out of ideas about who to ask about this. I doubt David House would talk to me although I could try. I've always wondered, too, why it was that if Lamo had the chat with Manning in May 2010, and then told the FBI (I'm not sure when), then...why were the feds unable to stop Cablegate from being published in November 2010? I may not have understood everything about this timeline. I asked Lamo and got no answer (yet).

I don't have time to play lobbyist and start calling these congressional offices.  The  briefing isn't scheduled yet. Watch this space. But these "tech liberation" groups should be demanding that this hearing be open. Obviously they think that if their insider tech buddy Darrell Issa gets to be in the meeting, and their other chums representing Silicon Valley interests, then that's enough, it doesn't have to be open to the rest of us feebs and choads.

Maybe the DOJ can make them sign NDAs like the big guys do in Silicon Valley and talk about how this is necessary for "innovation". Open source=closed society, I've always said.

What is there possibly to hide about a dead man's case? Formally, it was dismissed due to death. So what's up?

I don't see any hard evidence (yet) that there is a Manning connection, but given everything I've put together about this from the indictment and the statements of MIT IT personnel to the New York Times, and the comments by a former MIT IT manager on Empty Wheel, unlike Lamo, I *am* going to speculate.

If it's not about Manning, then perhaps it's about "sensitive" information that would reveal how the DOJ operates. Hmm. GPS tracking of Swartz's phone? (Marcy Wheeler of Empty Wheel asked that question). Informants that have cooperated with them to show more than we've seen about this case? Perhaps more indication of the intent? I've put together what we know about the MIT side of the story, as we still wait for Prof. Abelson's report. It might be prudent, since Abelson said his report would be ready in a few weeks, to wait to have the DOJ briefing so that the congress people have something in hand to ask hard questions about. But maybe nobody really wants to do that. It was a stunt to show that the congress people "cared," and they'd probably like it to be over soon so they can return to topics they've done just sooo well with like US Direct Assistance in Afghanistan, Ensuring Transparency and Accountability.

 

 

Comments

[Andrew]

At the risk of falling into "Tekkie literalism" I'll point out that DOJ briefing one or more members of Congress does not a hearing make.

Based on my experience I would be willing to hazard a guess that the reason a briefing on DoJ's handling of U.S. v. Swartz would be closed could be that as you said, he's dead. Airing a case in public after a defendant kills himself, leaving no opportunity for presenting a defense, would be unseemly -- there is very little to be gained by talking more about the case itself at this point. I would also suspect that among the topics Issa wants to be briefed on is any kind of rubric or formula used in exercising prosecutorial discretion, and I sincerely doubt any AUSA wants to let potential defendants know what sort of threshold of criminality to stay under in order to keep the Feds out if a case.

Issa himself, however, occupies a serendipitous jurisdictional nexus for this issue, since he both chairs OGR and is a fairly senior Republican on Judiciary.

Any actual hearing on the L'affaire Swartz would probably be held by Judiciary, I suspect, absent evidence suggesting misuse of that prosecutorial discretion, in which case it might be more appropriate for OGR to take the lead. That the matter overlaps means Issa needs to tread lightly, especially since Rep. Bob Goodlatte, R-Va., the new Judiciary chairman, is known as tech-savvy and Internet-friendly.

[Catherine Fitzpatrick]

Oh, I know that, big guy.

And that's because I've testified myself in both briefings and hearings in Congress and trust me, I do know the difference, especially when a briefing gets upgraded to a hearing, or a hearing gets downgraded to a briefing.

This is only a briefing. And I saw that it was reported as a briefing. It's in the links I've linked to.

I've merely used it in the sort of conventional way that nerds who haven't been on the Hill don't use it in, but just ordinary people.

But sure, since you RUSHED to my thread to literalize on this point, I'll go correct it : )

No, I said the opposite: he's dead, so he can't be harmed, so what is so secret? The dead get confidentiality when they are public figures just because they die? If anything, given the outrageous claim the progs are making that "the government killed him," we need an OPEN HEARING, not a CLOSED BRIEFING. A real, honest-to-God hearing with summoning of witnesses and all the rest.

Of course the AUSA doesn't want to divulge its threshold. And that is normal. IT's the kind of literalism geeks always demand of law that they think is like code and want to turn into code. It's not. This is like the WikiLeaks parliamentarian Jonsdottir demanding that NATO tell her the threshold at which a drone would be used, or a response to a terrorist attack would be escalated. And of course they will not answer that because if they give out their threshold information, then the enemy will dance around it just like the griefers of Second Life dancing near your property on Governor Linden land to grief you.

Not only is Issa in a "serendipitous jurisdictional nexus" -- a term I will have to remember to use! -- he is connected to Silicon Valley. Although some argue his district really isn't the heart of Silicon Valley. But it's ideological.

The real hearing could only be held by Judiciary as you say IF the issue of "prosecutorial overreach" isn't at stake. And it is. That's what their letter was about.

I'm going to write some letters about this, and Bob Goodlatte seems like one place to start, along with other members of the Oversight committee who aren't in the Silicon Valley pocket, if they can be found.