Sunday, January 27, 2013

"Justice"----Post Modern American style

The Aaron Swartz suicide is one of those momentous events that will be covered ad nauseum by a certain tiny subset of living humans who give an actual shit about things like democracy, openness, liberalism (in the John Locke, Rousseau sense), transparency in government, and blinded justice---and very little by the mainstream media.  Niche fiefdoms of the Interwebs will express outrage via a series of finely articulated blog posts and columns denouncing the bullying by the American government and the disproportionality of punishment meant to be dealt out to this talented, intelligent young man who believed in the free exchange of knowledge, a young man who seemed to have abided by a set of principles-- so unusual in this post modern era-- a young man who believed that the internet existed precisely for the purpose of potentiating the unfettered flow of ideas, facts, research, anything that could potentially advance the state of the human condition.  It was imperative to him that information not be controlled by any one entity, that anything potentially advantageous to human beings collectively, be put in the public domain.   

What he did was hack into an MIT database called JSTOR that firewalled access to thousands of scientific research papers.  Keep in mind that most of this research was produced by tax player-supported public universities and their associated departments.  JSTOR made you pay extra to read a paper from some obscure journal, a paper that had already been subsidized to a great extent by American tax player dollars.  Elsevier performs a similar function in the medical literature (and much more profitably, mind you.).  Swartz got caught and, instead of being charged with a misdemeanor count of violating the "terms of service" of JSTOR,  the federal justice department got involved and  decided he had violated various "digital computer fraud" laws and charged him with numerous felonies.  He stood to spend 30 years in prison and owe $4 million in fines.  Attorneys fees had already nearly bankrupted him.  He had been wracked by depression for years.  And now he is dead at age 26.

It got me thinking again about the concept of "justice" in America.  One of the better books I've read in the past few years was "With Liberty and Justice for Some" by the libertarian lawyer, Glenn Greenwald.  In it, he talks about the different tiers of justice-- specifically how it is applied-- depending on who you are and how connected you are with the powerful elite.  Transgressions are prosecuted not to the extent of how morally corrupt they are, but instead punishments are meted out according to who the perpetrators may be.  If you are connected with the powerful elite, then the rule of law is optional.  Anonymous, unconnected individuals who may even represent a threat to the monied interests or the ruling elite, especially to the extent that their actions expose the foul corruption that surrounds these elites, are often subject to the full force of the law, no matter how disproportionate the consequences may be.

In no sphere is this more apparent that our failed thirty year experiment called the "War on Drugs".   Just Say No, so innocuously saccharine, evolved into a class based system of imprisonment and oppression that disproportionately targets the lower classes and minorities.  The United States, with 5% of the world's population, houses 25% of its inmates, many of them low level street punk violators of draconian drug possession/intent to distribute laws.  Federal laws ridiculously mandate that crack (rampant in inner city poor, minority dominated neighborhoods) is to be punished more severely than the chemically identical powder cocaine (the preferred drug of white upper middle class brokers and other jet setters).  Local police and their vice squads and SWAT teams exist to hound and incarcerate low level dealers in lousy inner city neighborhoods while upper middle class white prep schoolers get slapped on the wrist with probationary penalties when caught doing the exact same thing.  This despite the fact that marijuana use is statistically higher in whites than for African-Americans.  But AA's are arrested at seven times the rate as whites are for marijuana violations.  Indeed, in The Wire, Bunk and McNulty weren't tracking down kingpins in tony, upper class Baltimore gated communities.

In the same vein, there is no act more aggressively prosecuted and rooted out by our authoritarian leaders than the "sin" of exposing official corruption and wrongdoing to the national press.  Obama's assault on whistleblowers has been morally indefensible.  Using warped interpretations of the Espionage Act of 1917, Obama has waged an unprecedented war on those who would dare to reveal evidence of government misconduct and immorality.  And thus we end up with irony of seeing the man, John Kiriakou --who revealed the names of CIA torturers-- sentenced to 30 months in jail while war criminals like Dick Cheney and John Yoo and Jose Rodriguez get lucrative book deals and take high profile jobs in academia or the private sphere.  Bradley Manning, who leaked the Apache Helicopter video and a veritable trove of journalistic scoops detailing American dishonesty, barbarity and hypocrisy, now faces possible life in prison for revealing non-top secret truths about our conduct that would otherwise have been shuttered off from public view and any form of accountability.  He was not paid.  He did not reveal any information that put American servicemen or intelligence agents at risk.  He was motivated in order to incite, in his words: "hopefully worldwide discussion, debates, and reforms – if not, than [sic] we’re doomed – as a species – i will officially give up on the society we have if nothing happens – the reaction to the [Collateral Murder] video gave me immense hope; CNN’s iReport was overwhelmed; Twitter exploded – people who saw, knew there was something wrong . . . Washington Post sat on the video… David Finkel acquired a copy while embedded out here. . . . – i want people to see the truth… regardless of who they are… because without information, you cannot make informed decisions as a public"

Meanwhile, no one who perpetrated and advocated for the fraudulent, illegal Iraq War face any recriminations.  Further, not a single high level Wall St. executive who participated in causing the great financial crisis of 2008 goes to jail.  Giant transnational banks caught red handed laundering money for drug cartels and terrorists pay relatively insignificant fines (given the billions in generated profits) and no one involved in the treachery is brought up on charges because subjecting the bank to the rule of law would "jeopardize the world financial system".

The message is this: law is an entirely arbitrary construct.  For those who are well-connected, part of the ruling elite, then designations of criminality never apply.  Some are too important to be harassed by law enforcement.  For some, it is always better to look forward, not back.  For some, we are told, our very stability as a civilization depends on never holding them accountable for clear violations of US and international law.  It is in our best interest, we are paternalistically told, that the actions of the corrupt elite be hidden behind a cloud of obfuscation and lies.  Nothing to see here.

On the other hand, no quarter is given to those who find themselves outside this sphere of influence.  For the corner drug dealer, the young man unable to pay his student loan debts, the doctors who inadvertently upcode patient encounters, the woman who lies about her address to get her child into a better school district, for Barry Bonds and Roger Clemens, for low level political crooks like Jimmy Dimora trading county construction projects for a new bricked barbecue patio, for Bradley Manning and Thomas Drake and John Kiriakou and Aaron Swartz, there is no mercy--- the full unfettered fury of authority is unleashed.

A world where justice is arbitrary and unevenly applied is a world that slowly breeds civil discontent and risks its very legitimacy.  This is where we are headed.  When justice ceases to be an ideal to be aspired to, when it is arrogated by the powers that be and relegated to the status of mere instrumentality, as a tool to be wielded, then we have truly entered an era of degeneracy and national decline. 




Paracelsus said...

This is a brilliant, very insightful, and truly moving article.

What happened to Aaron is indeed unbelievably tragic. It's like watching hope, personified in the young, die. "Suicide" is hardly appropriate for this, I think. "Elaborate murder" would be much more suitable.

I am extremely happy that the country having the most powerful military in the world, and the power to actually end it, still has people like yourself. It really is beyond me as to what needs to be done in America in order to change things, but I sincerely hope there's more like you, and you'll figure it out, I'm sure. Sooner rather than later, hopefully.

Anonymous said...

Wow, can't agree more!

AC said...

Dr. Parks,

I understand the sentiment, but this case is not nearly as black and white as you suggest.

JSTOR is a nonprofit that digitizes (at significant expense) old journals, mostly those in the humanities that are obviously not NIH funded. He hacked the MIT network repeatedly over a period of months, wasting numerous hours of time for both MIT and JSTOR staff. His actions resulted in the disruption of JSTOR service to the entire university for days at the time.

In short, his actions were misguided at best.

His prosecution also wasn't as heavy-handed as presented. He was offered two plea deals for 0-6 six months in minimum security prison, not the ridiculous 30 years often quoted. The case nearly bankrupted him because he was able to afford one of the most expensive law firms in New England. If you read about his background you'll find he was a member of the elite you decry — Stanford educated, independently wealthy, a Harvard fellow...

The media has attempted to spin this as a innocent young idealist being unfairly prosecuted by minimizing his crimes and overstating the penalties he faced.

Attorney Andy said...

AC - I couldn't disagree more. Even the notion that a person like Aaron should face ANY jail time for a low level computer hack that, at most, resulted in "disruption of...service" and wasting people's time is outrageous. (Local prosecutors were going to let him off with a warning, but then the Feds picked up the case and Aaron's life spiraled downhill). The insistence by the gov't that Aaron face jail time was not connected to his crime, but likely as punishment for his successful efforts in stopping passage of SOPA. They were trying to teach him (and all of us) a lesson.

If this comports with your notions of "Justice," god help us all.

Hopefully their actions in this case will inspire 100's of activists to take Aaron's place.

Anonymous said...

Except he didn't hack into JSTOR. It was available freely on a site license for MIT's network. Similarly MIT maintains an open network policy that allows guests to use it. He certainly abused the spirit of this openness (to the point of hiding a laptop on campus to keep a connection to the network) but his only crime was violating a TOS click through agreement.

Jeffrey Parks MD FACS said...

The "plea deals" he was offered involved him pleading guilty to 13 felonies. Strange that he was reluctant to agree to such terms, wasn't it?

AC said...

Now I don't want to debate this — it has been debated ad nauseam elsewhere. However, it's easy to minimize the harm Swartz caused when you weren't the victim.

Personally, I think ripping off a research database that cost a nonprofit millions to digitize and compile should be a felony. That does not make me a crazy neocon.

Zeke said...


If news coverage were an indication of importance, you would have had more impact writing about "side boobs" and the all-important "Puppy Bowl"