
Swartz Prosecutors Weighed 'Guerilla' Manifesto, Justice Official Tells Congress - guelo
http://www.huffingtonpost.com/2013/02/22/aaron-swartz-prosecutors_n_2735675.html
======
tptacek
The entire story that Techdirt is linkjacking is, via HuffPo, "Some
congressional staffers left the briefing with the impression that prosecutors
believed they needed to convict Swartz of a felony that would put him in jail
for a short sentence in order to justify bringing the charges in the first
place, according to two aides with knowledge of the briefing."

There was a hearing, and "some congressional staffers" were left with an
"impression".

For all we know, that's entirely true, and those anonymous staffers hit the
nail exactly on the head. But how would you know? How much less credible can
you get than anonymous staffers sourcing HuffPo, regurgitated by Techdirt?

~~~
lawnchair_larry
Note for readers who may find tptacek's comment confusing: Not only has the
original HN submission title been edited, but the link it points to has also
been edited.

The original title was "DOJ Admits It Had To Put Aaron Swartz In Jail To Save
Face Over The Arrest" and the link was pointing to:
[https://www.techdirt.com/articles/20130223/02284022080/doj-a...](https://www.techdirt.com/articles/20130223/02284022080/doj-
admits-it-had-to-put-aaron-swartz-jail-to-save-face-over-arrest.shtml)

~~~
guelo
Damn, that's bad editorializing by HN. The HuffPo article buried the lede that
Techdirt was highlighting.

------
tokenadult
Both sides in the sad Aaron Swartz case dug into their positions early, and
then let the sunk cost fallacy guide their later decisions about how to
negotiate with the other side. Swartz had plenty of friends who would have
advised him how to gain publicity for the issue of access to old journal
articles without taking the risk of imprisonment, but he didn't seek their
advice. The Boston area federal prosecutors treated imprisonment, however
brief, as the only outcome of the case that would signal the correct gravity
of the offense, but miscalculated that Swartz could not be deterred by other
dispositions of the case. Everyone involved (other than on-lookers like Larry
Lessig) paid too little attention to the other side's perspective on the case
and its trade-offs.

EDIT TO REPLY TO QUESTION IN REPLY COMMENT:

Yes, nothing that was proposed as to sentencing Swartz during negotiations
before trial would have prevented his gaining full restoration of civil rights
later, and even being able to expunge his record of conviction, if he had been
convicted. His lawyers calculated (correctly, it appears to be the opinion of
most but not all on-lookers) that the actual facts of what he did could
constitute an offense for which he could have been convicted. So the facts,
once Swartz made the facts by what he did, were not fully on his side. But
what view a jury or a trial judge or a later appellate judge might have taken
of the overall circumstances of the case wasn't put to trial before Swartz
killed himself. Impulsive, all-or-nothing thinking is dangerous when life-or-
death issues are in consideration.

~~~
derekp7
Was just wondering... I've heard of some cases where a felony conviction can
be expunged after a few years (seven I think) -- wasn't that the case with
Randal Schwartz? Would that option have been available to Aaron? Because from
what I've read, the thing bothering him the most wasn't the jail time (the
smaller sentence offered in the plea bargain), but being labeled a felon for
the rest of his life. Would he have been as distraught if the expungement
option was available?

~~~
mpyne
There's all sorts of different scenarios, including expungment (which is
indeed what Randal accomplished):

* Expungment: The records are sealed. It's (mostly) as if the conviction never occurred, since there's no way for people to access the proof that a conviction was returned. But this is a legal construct that only applies in the legal world, they can't go back and erase the newspapers. * Pardon: You did it, but we just won't punish you for it.

But the only one we can ask would be Aaron, unfortunately. For what it's worth
what "felon" means is entirely up to the state you live in, the people you
talk to, etc.

I worked with a "felon" (and I'm using this term very loosely here) who had a
clearance higher than mine, actually did the kind of jobs where they can't
talk at all about it, was able to vote, use banks, etc. No one thought of him
as anything less than a valued shipmate, but of course that's just my personal
perspective.

------
ihsw
What happened to jailing people for committing crimes? Honest question.

~~~
chimeracoder
The same thing that happened to executing only people convicted of crimes -
something we abandoned long ago as well.

Once any government has seized powers like these (whether rightfully or not),
it's very loath to give them up. This is an empirical observation, not a
statement about the ideal.

~~~
rayiner
We've never needed to convict anyone of a crime to kill foreigners not on U.S.
soil. Never ever. At the time of the founding, it wouldn't even have been a
question. Of course it's the sovereign right of the state to protect itself in
that way. Of course the only people protected by the U.S. Constitution are
those living within the scope of American jurisdiction.

See: <http://supreme.justia.com/cases/federal/us/317/1/case.html>,
<http://supreme.justia.com/cases/federal/us/339/763/case.html>

~~~
redblacktree
But not them either. A US Citizen can be declared an Enemy Combatant, solely
by the Executive, and summarily assassinated.

See: [http://www.guardian.co.uk/commentisfree/2013/feb/22/obama-
br...](http://www.guardian.co.uk/commentisfree/2013/feb/22/obama-brennan-paul-
assassinations-filibuster)

~~~
mpyne
And yet if that U.S. Citizen shoots an anti-tank rocket at an Abrams in
Afghanistan he can be summarily executed by a Private First Class (to say
nothing of a democratically-elected Commander-in-Chief).

There's definitely a discussion to be had about how and where a nation can
decide to use military force in the interests of its self-defense, but
citizenship has never been a barrier to military action outside of the U.S. in
war time. See for example <http://en.wikipedia.org/wiki/Ex_parte_Milligan>

Now certainly the Supreme Court did not envision drone strikes and one-sided
warfare outside of the United States when they talk about the laws of military
government, but it does go to show that even as far back as 1866 that the law
showed a distinction between military operations inside of the U.S. and
outside of the U.S.

~~~
chimeracoder
> citizenship has never been a barrier to military action outside of the U.S.
> in war time

These assassination are occurring in countries that we're not at war with (and
in some cases, never have been).

Furthermore, many the citizens being assassinated have never even been
_accused_ of a crime (like shooting a rocket), let alone convicted of one.

~~~
rayiner
The criminal code is for maintaining civil order in areas under our
jurisdiction. When the Constitution says that people have the right to due
process of law, it presupposes that you're talking about a context where
process exists (i.e. it is possible to bring someone to trial because you have
police power over the area and functioning courts). It's non-sensical in a
military context (and there need not be a declaration of war to have a valid
military intervention--also a tradition as old as the republic).

