Sen. Coryn (R-T) at the Google science fair.
So Eric Holder has now pronounced on the Swartz case and said he was satisisfied that the prosecutors did their job and did not overreach. Holder, whatever you want to say about him, is President Obama's appointee and I don't see that anyone is going to get him fired any time soon.
It's too bad that as always, we only have the tendentious, copyleftist-tropic lefty media on this so far, and not real investigative journalists who might be more professional and methodic, because it's important. So we have Slate and Huffpo seizing on this hearing with Corzyn in which we have to take their word for it:
Earlier this morning, the Senate Judiciary Committee grilled Attorney General Eric Holder on topics ranging from drones to marijuana policy. About an hour into the oversight hearing, Sen. John Cornyn, a Republican from Texas, asked Holder about the DOJ’s prosecution of Aaron Swartz, the programmer and Internet activist who committed suicide in January. Among other things, Swartz had been charged under the Computer Fraud and Abuse Act for using MIT’s computer network to unauthorizedly download millions of academic journal articles from a subscription database called JSTOR. He was facing a maximum sentence of 50 years in prison.
Slate says the family continues to claim that the prosecutors forced Swartz to kill himself over the prospect of an awful jail system, but Holder saysSwartz kept rejecting plea offers, and noted, "“There was never an intention for him to go to jail for longer than a three-, four-, potentially five-month range,” said Holder.
Then Corzyn, fed by the hacker narrative, says:
Cornyn: Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines, and then offer him a three- or four- month prison sentence?
(Swartz was actually facing up to 50 years in prison, claims Slate, but that as I've explained is merely a literalist concoction.)
Cornyn: So you don't consider this a case of prosecutorial overreach or misconduct?
Holder: No, I don't look at what necessarily was charged as much as what was offered, in terms of how the case might have been resolved.
Exactly.
Of course, both Slate and Huffpo and others like The Hill had already set the stage for a riot by the Google-fueled copyleftists by speaking of lawmakers "blasting" the "trumped-up prosecution" of hackers.
Well, as I keep having to point out, this wasn't just "lawmakers," but the very same two or three that show up for every one of these copyleftist occasions, all of them with campaigns funded by Google. It doesn't have to work in some craven fashion that a Google lobbyist just calls them up and dictates them what to do -- these things are much more nuanced and a delicate dance, which is why Lawrence Lessig's literalism about "money in politics" is always so densely stupid (and he's never worried about Google's money in politics he himself supports).
But they are the same gang that always toe the Google and open source cult line because it fits their own interests -- as I pointed out Corzyn comes from the server-farm-rich state of Texas, where server farms, unlike oil, are the wave of the future.
We then had the hard left in Tech Dirt and the Kremlin with RT supporting the line that the DOJ was prosecuting "thoughtcrime". And I would remind you that this was based on a tendentious reading of a briefing (not a hearing!) that came from a leaked report by some unnamed staffers who talked to some unnamed DOJ staffers -- the principles were not involved in this event, which was not open -- and I was the only person to point that out, as all those information-wants-to-be-free Internet freedom-fighter access transparency Gov 2.0 nerds couldn't see their way clear to having an OPEN HEARING instead of a CLOSED BRIEFING because *it suited them* -- they were happy to bow to what Issa did with this, in the manipulative way he did it.
So now, we have big-boy pants on, however. Eric Holder, not just some staffer, has said at a hearing, not just some closed briefing, that he has looked into it, and not found that Swartz was unfairly prosecuted. This is the Obama Line. Good! At least Obama feels some sense that he can't install technocommunism over the Internet overnight just like that.
Justin Peters, the same guy that wrote won of the weepy long hagiographical articles about Swartz some weeks ago, reports this:
Earlier this morning, the Senate Judiciary Committee grilled Attorney General Eric Holder on topics ranging from drones to marijuana policy. About an hour into the oversight hearing, Sen. John Cornyn, a Republican from Texas, asked Holder about the DOJ’s prosecution of Aaron Swartz, the programmer and Internet activist who committed suicide in January. Among other things, Swartz had been charged under the Computer Fraud and Abuse Act for using MIT’s computer network to unauthorizedly download millions of academic journal articles from a subscription database called JSTOR. He was facing a maximum sentence of 50 years in prison.
He, like the crafty tech journos, cannot bring himself to stop lying about this, and note that Swartz had a plea-bargain offer of 6 months -- which we learn from the New Yorker involved three months of jail, three months of a half-way house, and probation. Yes, it meant pleading guilty to felonies that in fact were established. Yes, this was true and Swartz's lawyer told this to the Boston Globe right after Swartz's death. Why the fangirlz are still claiming this is a "lie" on G+ is beyond me. What is a lie is the persistent determination to claim there were 35 or 50 years, when even 7 would have been highly unlikely (the number that the prosecutors actually spoke of to the lawyer if Swartz turned down their plea bargain).
Coders do not make good lawyers. Code does not make good law. One of the reasons is that it is housed entirely in the executive branch, literally executing. The reason we have democracy is because we do not have coders and we do not have self-executing code as law. We have an independent judiciary, that takes the case the prosecutors think they have, and examines it -- with adversarial defense, an impartial judge, and a jury of one's peers. These things matter. These things are entirely opaque and exist utterly outside the closed circuit of the binary thinker in the code-is-law system. But again, they count!
"Progressives" who might even concede that Swartz did commit a real offense that wouldn't have gone away even if they fixed the CFAA shift the debate cunningly to one about plea-bargaining in general or whether prosecutors should even announce their charges and maximum sentences. But that's ridiculous. Of course they get to do that. It's their job. They look at the offenses, they *make their case that it qualifies* and they try to win that case in court -- and are successful about 65-75% of the time in the US (in Russia, the acquittal rate is closer to zero.)
They make their case. This is beyond the binarians, as they can't understand that prosecutors can't just frivolously decide to scare suspects into confessing by dramatically announcing scary sentences, they have to prove that they have a case in a court of law. That matters! The judge will discount something that is merely put in to scare or is frivolous or "thoughtcrime" and that's why prosecutors who are serious -- and these ones are, they are not in some backwater, but in the liberal state of Massachusetts -- make their case carefully.
BTW, the other check and balance we have against the executive -- that executing binary code that is the only world hackers live in when they aren't suddenly invoking the other worlds speciously in service of their agenda -- is Congress. And Corwyn and Issa are doing their jobs by asking questions about the executive branch as well they should. But not every senate inquiry leads to a vindication for their narrative, either.
P.S. Oh, well, it takes Fox News to put this story into better focus, as antagonistic as they are to Holder. They provided a video of the hearing you can watch here -- in which Coryn claimed prosecutorial overreach and even misconduct -- and Holder answered confidentally that it was not. The leftist papers didn't provide either the video or the fuller transcript with context.
"Let me first say that Mr. Swartz death was a tragedy, my sympathy goes out to his family and to his friends, those who were close to him – it’s a terrible loss he was obviously a bright young man and had I think a good future in front of him. As I’ve talked to the people who’ve looked into this matter, these news reports about what he was exactly facing is not consistent with what the interaction was between the government and Mr. Swartz. An offer – a plea offer – was made to him of 3 months before the indictment; this case could’ve been resolved in a plea of 3 months. After the indictment, an offer was made he could plea and serve 4 months, even after that a plea offer was made in a range 0 – 6 months that he would be able to argue for a probationary sentence, the government would be able to argue for up to a period 6 months, there was never an intention for him to go to jail for longer than a 3, 4, potentially 5 month range – that was what the government said specifically to Mr. Swartz, those offers were rejected.
Holder explains very confidently and matter-of-factly, when pressed by Coryn who mentions the horrendous figure of 50 years, that he doesn't look at the maximum sentence, but looks at the *conduct* and given the *conduct* of Swartz -- no financial gain and no further distribution -- the offer was indicative of what the government sought and he said the government sought six months, not 7, not 35 years. Watch the video.
Coryn insisted that Holder provide a written response, and sought to get him to admit that a "thorough investigation" had been done. Holder stammered somewhat here, but indicated that members of the DOJ made the inquiry, i.e. he seemed to say it wasn't a top-level inquiry by himself or his office, but the US attorney and the line attorneys looked into the matter and reported to him -- and that's normal.
Coryn raised the "prosecutorial overreach" in the Ted Stevens case as an example where Holder himself judged that there was prosecutorial overreach (Steven was famous for saying that the Internet was "a series of tubes").
Holder said he "would not hesitate to do" what he did in the Stevens case if it were relevant; but it was not to the Swartz case. He said his written response would only reiterate what he had just said.
Now is the case closed as far as these Congressional offices are concerned? I think so, but maybe not.
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