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?
As soon as I read "techdirt.com" in the submission, I knew it would be better to jump directly to HN comments rather than read the OP. Thank you for validating my instinct.
I know many news sources exaggerate or mislead to push an agenda or bias. I guess it really bothers me that some of the ideals that TechDirt espouses are the same ideals I agree with, however, I support those ideals on the presumption that they are empirically and logically sounds...or so I'd like to believe. Perhaps I'm being naive, that rhetorical campaign means more than substance, but TechDirt's constant misreading of events and the law, either by mistake or intentional, is really grating.
Note: after typing up this comment, I did go and read the HuffPo piece. My first thoughts are: wasn't it already well known that the prosecutors used Aaron's writings and backgrounds as evidence that he intended to diatribute the downloaded JStore material, as opposed to just doing a personal analysis? I'm nt saying they were right, but to put that revelation in the lede is indicative of a strawman accusation
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.
>But how would you know? How much less credible can you get than anonymous staffers sourcing HuffPo, regurgitated by Techdirt?
It sounds very credible to me. I don't doubt that, out of all the staffers involved, two would head to one of the bigger political websites to share their impressions about what's been a bit of a sensational case.
Would you prefer that HuffPo include a New York Timesean "according to two aides with knowledge of the briefing, who spoke under condition of anonyminity because they were not authorized to speak publicly on the matter"? I'd be a lot more skeptical if it were highly-placed sources, but these aren't.
I would prefer the NYT to HuffPo, period, because the NYT has a formal policy for handling anonymous sources and a public editor/ombudsman tracking their integrity, where HuffPo is, like Gawker, incentivized to publish immediately on any pretext as long as the story is likely to generate pageviews.
But having said that, you have an adversarial hearing run by the opposition party; it is hard to imagine there not being some staffer for some congressperson leaving such a hearing unprepared to ding the administration. Which is why you'd want something better than "anonymous" and "staffer" and "impression".
I'm not certain what you mean, but I'll point out that regardless of length of incarceration, a felony conviction has severe and long-standing repercussions. Many employment avenues are closed (maybe not a primary concern to Swarz). Want to travel abroad? Or, relocate. Sorry: Many places won't take you. (More of a concern to Swartz, perhaps.) Even domestically and outside of employment, there may be places you want to go and things you want to do that are simply no longer open to you. In some states, that includes voting.
At this point, if the FUD gets the Justice Department and the Administration to actually speak to the issue (really, not just propaganda), I'll have some satisfaction.
In the face of stonewalling, escalating, inflammatory rhetoric (if that's what we have) can serve a useful purpose.
Those weren't scare quotes. I am sure their sources are anonymous, and that they are staffers, not congresspeople. I am also confident HuffPo accurately reported that they'd developed impressions and not firm conclusions.
Two corroborating sources is normally the gold standard for reporting. I'm confused about what it is you are implying, should reporters not ask and report what staffers say happened in closed hearings?
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.
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?
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.
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.
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.
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.
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).
> These assassination are occurring in countries that we're not at war with (and in some cases, never have been).
Sure, but the issue is two-pronged: 1) Whether the target is considered to be "at war" with the attacker and 2) Whether the state he's in allows the military action (or at least, doesn't consider it to be a causus belli).
The issue we were discussing is the first (i.e. whether it is appropriate for the U.S. President to put an American citizen on a "kill list" without trial). Many people claim that this is unusual behavior, but it's really not in the context of the military (even in the media, e.g. Apocalypse Now). Or differently, if an American officer had defected to the Nazis during WWII and was known to be in a certain bunker you can bet he would have been facing a bunch of incoming U.S. ordnance.
However speaking towards the second point for just a bit, the U.S. assassinated a Japanese Admiral (Adm. Yamamoto) during WWII and didn't wait for him to be in Japanese-controlled areas to do so. He was killed in international waters, and not even during a battle as we think of them. He was a militarily valuable officer in a military organization fighting the U.S. and off he went. And, even if he somehow managed to overfly some nation's airspace, he would have been hit as long as the nation involved would tolerate the incursion.
> Furthermore, many the citizens being assassinated have never even been accused of a crime.
Well, they have (insofar as the process as it's been released theoretically requires some form of justification). They haven't been accused in a courtroom, perhaps, but that's a civil law matter, not military/international law.
I want to stress real quick that I'm not even personally decided for/against on this issue myself, but I'm a firm believer in garbage in == garbage out and so I just wish to point out that this issue isn't as crystal-clear as it's sometimes made out to be. If we treat this as a military affair (and AQ certainly does) then there is plenty of reason to treat the U.S. reaction under military terms as well, and those are much muddier waters than civil/criminal law.
Painting Anwar al-Awlaki's death as the short step away from extrajudicial executions of U.S. Citizens on U.S. soil is nothing more than handwaving. Al Awlaki was not protected by the U.S. Constitution not because he was labeled an "Enemy Combatant" and thus magically stripped of Constitutional protections, but because he was a fugitive actively fighting against the U.S., on foreign soil, and evading every attempt to bring him to justice.
The U.S. has never required a judicial verdict when killing fugitives in the course of battle is concerned. There were some American Citizens who served in the army of Nazi Germany. Some of those were killed by allied forces. No judicial determination was necessary. The same thing happened with British Citizens defecting to Germany.
Even in more (relatively) mundane situations, U.S. Citizens can be killed by the government with no judicial authorization. If you're in a building holding hostages at gunpoint, you might very well be taken out with a police sniper's bullet, and there is absolutely nothing unconstitutional about it. The sniper does not have to go get some sort of judicial authorization to take the shot.
You can bring up the "slippery slope" fallacy all you want, but you think it was different at the founding of the republic? Less than a decade into it's existence, the U.S. sent federal troops to suppress an armed insurrection against whiskey taxes. Nobody got a court order to kill the insurgents: http://44363370.nhd.weebly.com/battle-of-bower-hill.html. You think the U.S. government circa 1789 would've done anything different with al-Awlaki?
With all that in mind, I'd still rather that people leaned towards "that's reprehensible" as a gut reaction to first hearing of it than the alternative. I think if you ask me on most days I'd say there's legitimate military reasons to be able to combat terrorism in this fashion (especially in this brave new world of near-stateless persons) but it's still the kind of thing that I would want people to be very sensitive about.
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?