As folks absorb what the Ed Snowden surveillance leaks mean for our democracy, perhaps it’s time to look at how our fellow citizens in government can turn innocent people’s lives upside down. Here’s a link to a January blog post titled “Aaron Swartz and Other Victims of Government Persecution.”
Aaron Swartz and Other Victims of Government Persecution
(Originally published on Tikkun Daily, January 19, 2013)
In the wake of the tragic suicide of Aaron Swartz, much has already been said and written about what a sympathetic character the freedom and democracy-lover was. There is now a citizen-led petition before the White House calling on President Obama to remove U.S. District Attorney Carmen Ortiz from office. The petition, which has gathered 36,000 signatures so far, asserts that
“A prosecutor who does not understand proportionality and who regularly uses the threat of unjust and overreaching charges to extort plea bargains from defendants regardless of their guilt is a danger to the life and liberty of anyone who might cross her path.”
The outpouring of public sympathy for Swartz is moving, especially in an era when large swaths of the American public are perfectly content to have vast amounts of information withheld from them. So long as the trains are running on time, such a mentality goes, who cares if our own government is engaged in cyber wars and drone attacks with little oversight, and absolutely nothing in the way of public consent? That so many are honoring Aaron Swartz, and recognizing his noble aims for a more open society, is a heartening testament that at least some of us still believe there’s more to citizenship than showing up to the train platform at the right time. Yet the question must be asked: What about the victims of government persecution who aren’t so sympathetic?
From 1999 to 2004 – five long years – former lobbyists for the American Israel Public Affairs Committee, Steve Rosen and Keith Weissman, had their phones wiretapped by the F.B.I.; wiretaps that were approved by the Foreign Intelligence Surveillance Court. In August 2005, just a few months before the New York Times broke the warrantless wiretapping revelations, Rosen and Weissman were indicted on trumped-up charges of violating the 1917 Espionage Act, in particular, charges of transmitting U.S. classified information to the Israeli embassy. At the time, the indictments caused a stir among ardent Israel supporters, like Harvard professor Alan Dershowitz, as well as groups concerned with challenging government secrecy, like the Federation of American Scientists. No so much among other sectors of society. To say that many in Washington and elsewhere were glad to see the Feds trying to smack down the feared and powerful Aipac would be a gross understatement.
Not until Attorney General Eric Holder took the reins of the Justice Department in 2009 was the case dropped against Steve Rosen and Keith Weissman, the latter of whom had to seek psychological counseling owing to the stress of official persecution. Unlike Aaron Swartz who apparently wanted to empower all through his open society computer activism – motivations that have won him posthumous praise – Rosen and Weissman simply wanted to empower Aipac. Needless to say, many believe the latter already had enough power.
That any non-lawyer could read the indictments of Steven Rosen and Keith Weissman and smell a government witchhunt against organized American Jewry’s primary outlet for pro-Israel advocacy was beside the point: Most who cringe at all things Israel, and in particular, who cringed at the post-9/11 ascendency of the neoconservative agenda, welcomed a dose of comeuppance for the faction (read powerful Jews in Washington) they deemed responsible for America’s Mideast adventurism. That Rosen and Weissman were innocent men, not criminals, was beside the point.
Ditto for another powerful man in Washington whose demise at the hands of the U.S. Justice Department was met with delight: the late senator from Alaska, Theodore Stevens.
Among the many post-conviction revelations that prompted Attorney General Holder to likewise drop all charges against Ted Stevens when he assumed office, was the surfacing of notes from an F.B.I. interview with Bill Allen, the former owner of the Veco corporation and chief prosecution witness in the Stevens case who orchestrated the renovation of Stevens’ cabin, which was at the heart of the Justice Department’s criminal charges.
The notes directly contradicted the most damning testimony that Allen gave on the stand in the Stevens case; namely that Ted Stevens had asked for a bill from Veco simply to “cover his ass,” yet had no intention of actually paying for the services. These pre-trial notes were concealed from the Stevens defense team, which under a 1963 court ruling in Brady v. Maryland, was entitled to see. Also concealed from the defense team was Allen’s pre-trial assertion that the Stevens home renovation project was closer to $80,000 – far short of the $250,000 grand total that the late senator was charged with failing to report.
Stevens surely caught a glimpse of the sheer contempt that would be directed at him during the pre-trial hearings over evidence. When the defense team requested that the judge order the prosecution to hand over electronic evidence, as was their right, Brenda Morris, the chief prosecutor, offered this glimpse into her mentality: “Just because he has ‘U.S. Senator’ before his name doesn’t mean we have to drink out of a fire hose every time they call us.”
For those who would doubt that the prosecutorial zeal of these Justice Department prosecutors devolved into outright contempt, zoom out your moral lens and look at how this case against Stevens emerged in the first place.
Bill Allen, the former owner of the Veco corporation who pleaded guilty to bribing Alaska state legislators, and who is at the center of the government’s prosecution of Stevens, made a deal with the feds that prove — beyond the shadow of a doubt — that they were intent on sending Ted Stevens to prison whatever it took. In his plea agreement, Allen agreed to cooperate with the feds, and subsequently to record those now-infamous phone conversations with Stevens, on the condition that the government would not prosecute his adult children, also former owners of the Veco Corporation.
Allen’s decision to turn on Stevens to save his grown children from prosecution clearly suggested that bribery was part of the family tradition. Bribery, needless to say, is a severe federal crime, and those involved in both ends of bribery schemes deserve to be indicted. Yet pursuing all those individuals involved in Alaska’s bribery schemes, including evidently Allen’s grown children, is not what Justice Department officials chose to do. Instead, they determined they had enough success in bringing small Alaska fish into the frying pan, and set their sights on putting Alaska’s big fish into the frying pan — Ted Stevens.
In December of 2008, two months after Ted Stevens was convicted, an F.B.I whistleblower, Agent Chad Joy, came forward with a shocking allegation, or perhaps not so shocking for those of us who smelled a government hatchet job against Ted Stevens, not criminality. Joy alleged that Bill Allen, the chief government witness, met privately in hotel rooms with the lead F.B.I. agent in the case, Mary Beth Kepner.
That Ted Stevens never took bribes from anyone, and that Allen’s grown children — evidenced by their father’s strategic decision to ensure their immunity from prosecution — are unofficially implicated in Veco’s bribery schemes, simply did not matter to the higher-ups at the Justice Department; they wanted Ted Stevens behind bars and were going to use their unchecked power under our current system of government to get what they wanted.
Those malevolent aims must have been made all the more easy to achieve with the lead F.B.I. agent meeting privately in hotel rooms with the chief prosecution witness. After all, most Americans – even the most skeptical and jaded among us – would never think of going to our local Holiday Inn and asking the manager, “Excuse me, sir, but by any chance have you seen a female F.B.I. agent and a crooked businessman checking into room 307?”
If one needs further evidence that the cost of Stevens’ home renovation was grossly inflated, they should consider the post-trial claim of prosecution witness David Allen Anderson, who conducted work on the cabin. Allen sent a post-trial trial letter to Judge Emmet Sullivan indicating that his testimony was coached by the prosecutors, and that he was told how to “sugarcoat” his immunity deal with the feds. In his November 15th letter to Judge Emmet Sullivan, Anderson wrote, “I testified to the fact that there was never immunity for me or my family or friends. This is simply not true.” In that same letter, Anderson also underscored one of the reasons the Judge Sullivan lambasted the prosecutors during the trial — that the prosecutors knew all along that he was in Oregon, not Alaska, for some of the alleged “unpaid work” on the cabin. One can understand Judge Emmet Sullivan’s outrage at the Justice Department prosecutors Brenda Morris and Nicholas Marsh (who two years later would hang himself); it is hard for a man to conduct work on a home renovation when he is not even on the property, let alone in a different state.
This presence of corrupt, malicious actors inside the executive branch of government — wholly willing to destroy lives as is unchecked power’s basic instinct — is of existential significance for our nation, and particularly in our present historical moment.
Last month Congress reauthorized, with the support of President Obama, the 2008 FISA Amendments Act; a law which vastly expanded the government’s ability to wiretap the telephones of U.S. persons. At this point, you are supposed to be accustomed to hearing the words “without a warrant.” But not here.
Unfortunately, those who have led the charge against expanded government wiretap authority since the aforementioned 2005 revelations in The New York Times, have inculcated the extremely dangerous notion among the public that those wiretap warrants are the end all and be all of bulwarks against untoward executive branch meddling in our nation’s political life.
That the court tasked with issuing those warrants, the Foreign Intelligence Surveillance Court, is both secret and non-adversarial — meaning there is no one there to counter a government agent’s claim that a U.S. citizen needs to be wiretapped in the first place — was of shockingly little significance, and largely still is, for those involved in the FISA debate. So long as the FISA court issues specific wiretap warrants for each case, the court’s ardent defenders implied, it will protect U.S. citizens from politically-motivated government officials who want to conduct surveillance on their political enemies.
These ardent defenders of the FISA court had absolutely no basis on which to make that claim, since the court is entirely secret. For example, the last time the ACLU attempted to persuade the FISA court to make public their legal rationales for authorizing wiretaps of Americans, the FISA court told ACLU where to stick it, and Congress flatly rejected amendments the reauthorization of the FISA Amendments Act to do just that.
Needless to say, the recorded phone conversations of late Senator Ted Stevens and Bill Allen, the chief witness for the prosecution who has already pleaded guilty to bribing Alaska state legislators, had nothing whatsoever to do with the FISA . Nevertheless, the taped phone conversations in the Stevens case, and specifically the government intentions behind those recordings, illuminate, in Technicolor, the severity of expanded government wiretap authority, and how injurious it can be to our basic democratic fabric, including for the rights of those who, unlike the late Aaron Swartz, are not endearing, altruistic, sympathetic figures.
There is absolutely nothing in those secretly recorded phone conversations to prove that Senator Stevens committed a crime, intended to commit a crime, or believed he had committed a crime. And yet the recorded language of Senator Stevens, who at the time of that taped conversation had just learned that the feds were asking around about his home improvements, can be construed by reasonable people to believe he demonstrated a guilty conscience. In the taped phone conversation, Stevens said:
“You’ve got to get a mental attitude that these guys can’t really hurt us. You know, they’re not going shoot us. It’s not Iraq. What the hell? The worst that can be done, the worst that can happen to us is we round up a bunch of legal fees and might lose and we might have to pay a fine, might have to serve a little time in jail. I hope to Christ it never gets to that … So I’m going to go right through my life and keep doing what I think is right.”
Ted Stevens, simply put, was loose and congenitally sloppy with his word choices. It is entirely probable that this bit of recorded conversation — with which the executive branch of the U.S. government used to portray to the American people Ted Stevens as having a criminal mind — is the innocuous rambling of a tough, old World War II veteran who has just learned the government is after him, and yet wants to prove his bravado — his Alaska-baked machismo — to his friend. This demonstration of bravado could well be nothing more than Stevens’ own coping mechanism; coping by not giving into fear upon realizing that he is under government siege – even the fear of jail.
It is a blight on our 232-year-old republic that “We the People” — the ones who get loads of lip service about the uniqueness of American liberty from pols seeking our votes — have absolutely no say whatsoever in these truly monumental ethical determinations of crime and punishment that are routinely made in our name. Signing a White House petition to remove a prosecutor who hunted a cyber hero after he already took his life is hardly a remedy.
The already lamentable fact that we as a citizenry are so far removed from these government decisions that go to the very heart of human freedom has been made all the more grievous owing to Congress’ continuous blows to our Fourth Amendment, namely the FISA Amendments Act, with no meaningful measures provided to offset a blow of such magnitude.
If our 237-year-old republic is to stave off what is shaping up to be a clear descent into modern-day executive branch tyranny, we must address the fact that a two-tier system of citizenship has effectively already emerged: namely, those who get to hunt their enemies with effectively unchecked government surveillance and prosecutorial tools, and those who don’t.
Aaron Swartz may have been a beloved, vulnerable and sympathetic figure. The late Ted Stevens was not so sympathetic. Nor were Steve Rosen and Keith Weissman at the time of their prosecution. But they all had one thing in common: they were on the wrong side of America’s post-9/11 surveillance state system of two-tier citizenship.
That’s the issue we need to focus on, not which individuals happen to tug at our heartstrings.