What a Small World: Carmen Ortiz, Aaron Swartz, and Tarek Mehanna

Revised: January 15, 2012, 3:25 pm; revised again 10:02 pm.

Update I & II (below).

You have probably heard of Carmen Ortiz. She is the US Attorney who has become notorious for vigorously initiating charges against Aaron Swartz, a cyber-activist and prodigy who, according to the Massachusett’s US Attorney‘s office, engaged in criminal activity by breaking through the security firewalls* of JSTOR via MIT computer networks and downloaded millions of public-access files. Swartz committed suicide a few days ago; his family suggests that the cause in part was the intense prosecutorial zealousness, where he faced a possible felony conviction and 30-year sentence, and up to $1 million in fines, for the “theft” of public-access articles. This was a prosecution which JSTOR opted out of supporting, but which MIT did support despite the fact that it has one of the most intentionally accessible networks of most universities.

What you may not know is that under Massachusetts law, the potential sentence that Swartz faced was more than the maximum sentence given to a rapist who has subdued his victim with a threat of physical force, namely 20 years. If a firearm is added to the mix, but if the victim is not subjected to “serious bodily injury,” then the rapist can receive a maximum of 20 + 10, or 30 years. In other words, the same as for downloading gazillions public-access, royalty-less articles—a crime which caused no harm.

What you also may not know is that Ortiz, who—until 5 days ago–was considering a run as the Democratic candidate for the Governor of Massachusetts, was chosen as the 2011 Bostonian of the Year by the Boston Globe. As evidence of her brilliant credentials, the Boston Globe referred to her work alongside a young Eric Holder in the Justice Department over fifteen years ago, during which time she helped to prosecute Abscam, sending the likes of Jim Jenrette and other Congressmen to jail for accepting bribes in one of the most famous FBI stings until the era of the War on Terror. Of course, in order to ascend through the ranks of (the Department of) Justice, one must make it a religion to be a “law and order” prosecutor. The Globe, in its attempt to confirm its support for this marvelous candidate, makes sure we know about Ortiz’ famous pursuit of James “Whitey” Bulger, the mafia member who was on the lam for 20 years before he turned up a few years back.

What you also may not know is that under Ortiz’s auspices as the US Attorney, other young Massachusetts men were inordinately harassed and pursued for political dissent–along with the singular crime of being Muslim. Among them are Tarek Mehanna and Rezwan Ferdaus. Mehanna, a US citizen, was convicted and sentenced to 17.5 years. Ferdaus, also a citizen, was entrapped by the FBI, convicted, and sentenced to 17 years for building explosive devices. I wrote about them some months ago, so here I will mostly highlight Mehanna’s case.

To judge by the U.S. Attorney’s prosecution of Mehanna, you would have thought there were enormous amounts of evidence pointing to his terrorist activities. Mehanna’s crime was political dissent against the U.S.’s vigorous pursuit and harassment of Muslims in its self-declared War on Terror. In fact, let me be even clearer: Mehanna was not convicted of killing, assaulting, or even threatening Americans. He was convicted of

conspiracy to provide material support to al Qaeda, providing material support to terrorists (and conspiracy to do so), conspiracy to commit murder in a foreign country, conspiracy to make false statements to the FBI, and two counts of making false statements.

In the scheme of counterterrorism laws, conspiracy is one of the weakest charges that can be leveled, since conspiracy charges require an extremely low standard of evidence. In fact, the three men of Somali descent who were rendered from Djibouti last month to a Brookyn Federal court, are also charged with “conspiracy,” despite having been detained for over 3 months in Somalia and over 1 month in Brooklyn. This tells us that very little evidence has been found to support a stronger charge, like of actual material support to terrorists.

To hear the Boston Globe and the Boston FBI’s office tell the story, Mehanna was on the verge of waging jihad. The accounts by Adam Serwer, Kevin Gostola and Glenn Greenwald vigorously counter this story. Adam Serwer, for example, suggests:

Civil liberties advocates say the case represents a slippery slope. In the 2010 case Holder v. Humanitarian Law Project, which decided whether or not providing nonviolent aid (such as legal advice) to terrorist groups constitutes material support for terrorism, the Supreme Court ruled that even protected speech can be a criminal act if it occurs at the direction of a terrorist organization. Based on that ruling, you could be convicted of materially supporting terrorism merely for translating a document or putting an extremist video online, depending on your intentions.

And yet, Mehanna was left in solitary confinement without a trial for over 3 years, with very few chances to see his parents–or anyone else. In prison, he like many other young Muslim men, faced a range of “Special Administrative Measures” (SAM’s) that are rather arbitrarily administered for various infringements of ad hoc rules, such as praying in Arabic, etc. All this…for…critical political speech.

Regarding Ferdaus, as I wrote in October, he is:

Another Massachusetts resident, a U.S. citizen of Bangladeshi descent, who was convicted of terrorism by making IED detonators per request of undercover FBI agents. He pled—i.e. there was NO trial and so NO public evidence—to charges of attempting to destroy a federal building and “attempts to provide material support” to terrorists.” He was also a drummer in a rock band “Goosepimp Orchestra,” and went by the name “Bollywood.” Until 2010—when he was 25 years old—not 16, 18, or 20—he suddenly evinced an urge to kill Americans—at the prompting of undercover FBI agents. Really? At the age of 25, he undergoes a shift from drummer to terrorist? Clearly, young South Asian musicians need to watch out—they might find themselves overwhelmed by “terrorist leanings.” Prior to 2010, Ferdaus’ only evidence of “terrorist” behavior was a high school prank—pouring cement on the doors of his high school as a senior, and smoking pot. Yes—such evidence of “terrorist behavior…just imagine. By this rubric, every male white high school senior is well on his way to being a terrorist. Wait. Except of course that they’re white. And Ferdaus is not.

Conversely, Aaron Swartz was not Muslim, and thus his chances of being targeted as a potential terrorist were significantly decreased. However, his crime was taking concepts like public-access and creative commons too seriously–and thus thwarting the private property interests of info-hoarding profitable (though “officially” non-profit) companies like JSTOR–and officially for-profit companies like Elsevier. As with most policies under the Bush and Obama Administrations, what we have come to understand is that they will fiercely, staunchly, defend the interests of banks, mortgage companies, and their Wall Street friends–and be perfectly equanimous about trampling powerless individuals–especially if they are hotheaded, suggestible, or “excessively” idealistic about standards of fairness and justice.

It is not surprising that Eric Holder and Carmen Ortiz are consistent in their overzealous prosecutions against individuals who are engaged in political dissent: For Aaron Swartz, this dissent took the form of challenging the electronic paywalls that prevented public access to work done by scholars like myself, who will never see a penny from the tens of articles that I have published. Mehanna’s speech at sentencing is worth reading; he is clearly a politically aware young man. His dissent took the form of challenging and criticizing the US government’s imperial war—perhaps in extreme terms—but that is also part of the flexible boundaries of speech.

When young white men engage in extreme speech in colleges, they might be suspended, but they are rarely put in maximum security prisons and solitary confinement for years at a time before they are given a trial. It appears however that the inexcusable sin of young white men–is to effectively run circles around big corporations and wealthy educational institutions–and to do so without remorse. That’s enough to get the state to come after you. As Marcy Wheeler notes, 2 days before Swartz’ arrest, his case was taken over by the Secret Service.

Are these cases really that different, then? They are all targets of nationally directed efforts to target young men for–essentially–the crime of significantly challenging the state’s actions and loyalties. In Walter Benjamin’s words, that makes them Great Criminals.

Swartz, Mehanna and Ferdaus are also young men who have little capacity to come up with the resources—the money or the connections–needed to fight the U.S. government. These are small fish, they’re easy to hook, and the prizes are big: fame and professional ascendance as the “good guys,” at the same time that—at least Holder’s office—decides to ignore the crimes of big banks like HSBC, who are engaged in deliberate money laundering and massive material support to terrorists and drug cartels.

It is horrific and tragic that Aaron Swartz is dead, by suicide no less. I didn’t know much about him, or even his name until Saturday morning, but I do remember the case of a young “hacker” who managed to download 4.2 million public-access JSTOR files. Given that they were public access files that could only be obtained by being affiliated with an institution who subscribed, i.e. paid thousands of dollars to JSTOR—and given that those profits were never seen by the authors whose articles were included–it is clear that this is a theft without a victim. The bigger theft is conducted by academic publishers and databases—and I suspect, by copyright attorneys, who made it profitable to aggregate these files and demand exorbitant rates for access to them.

Judging from the moving testaments by so many others whose work I admire, I sense that his is a tragic loss not only to his family and friends, but to the project of political justice. For that I am intensely sad and furious at the pressure that he must have felt during the last few years.

It is also horrific and tragic that Mehanna and Ferdaus were each subjected to years in solitary confinement and entrapped by the FBI, and that the FBI is doing this more and more frequently. These two men did not kill themselves. However, a number of young Muslim men have died at the hands of US government, like Adnan Latif did (see my last post for links). Still, Mehanna and Ferdaus are part of the same move to overzealous prosecution that has victimized many young men under the auspices of the US Attorney Ortiz—in Massachusets and her counterpart, Eric Holder, at the federal (and international) level. We can see similar prosecutions all over this country–including in New York under US Attorney Preet Bharara. Bharara’s office zealously prosecuted Fahad Hashmi–again for political dissent. Hashmi, who was ultimately convicted for “conspiracy” to provide material support, also spent years in solitary confinement and was sentenced to 15 years on the basis of very little evidence.

One of the many things that those who are outraged at the death of Aaron Swartz can do is to challenge the copyright restrictions that publishers and academic databases impose on universities and scholars alike.

Another is to recognize and articulate–constantly, repeatedly, loudly–the commonalities between Swartz’s prosecution and the persecution of others like Mehanna, Ferdaus, and Hashmi. Challenges to the harassment of individuals–whether cyber-activists, Occupy protesters, whistleblowers, or Muslim political dissenters by the U.S. state–need to be sought –and based–in the legal, political, thematic links between individuals who may look and appear to be engaged in different “crimes” but who in fact are not so different in terms of how they are being pursued and targeted by the US state.

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Update (Jan 14, 2013, 7:33 am): I forgot to add the obvious: Swartz was also a key figure in challenging SOPA, another reason the state was none too happy with him.

Update II:( January 19, 2013: 12:20 pm): Marcy Wheeler has made a remarkable set of connections between Aaron Swartz’ FOIA request for information on Bradley Manning and the Secret Services’ confiscation of his computer and then arrest several days later, and DoJ’s ensuing harsh treatment. Read her posts that follow as well.

*An earlier version of this post incorrectly described Aaron Swartz’s ‘crime’ as having hacked through JSTOR’s paywall. In fact, according to the US Attorney’s office, Swartz is alleged to have broken through the JSTOR’s and MIT’s security firewalls.

Safe States: Safe for Whom?

It’s Halloween. And the political climate is terrifying. Democrats try to assuage their increasing anxieties over Matt Stoller’s, David Sirota’s, and even Lawrence O’Donnell’s challenge (brief as it ever was) to the Democratic voting hegemony.  It’s hard to know how many liberals have noticed Margaret Kimberley’s, Bruce Dixon’s or Glen Ford’s numerous challenges.  And I keep hearing the term “safe state” bandied about. Apparently, the term “safe” is a code for “blue”…or “most people are voting for Democrats, so the rest of you can do whatever you want.”

News flash: Apparently, the term “safe” is not meant to be ironic.

The “safe” state in which liberals have taken refuge induces another soul-searching moment for me. What does it mean to wake up and feel that one is in a safe state?

I don’t mean “my house has 17 locks and multiple metal gates” safe. Or “Friday the 13th and Texas Chainsaw Massacre are only horror movies” safe.  I mean “Those who are anxious to vote for a Democrat and his party who are committed to an extensive top-secret kill list of countless names of people deemed threatening without public evidence,” safe.  What–who–is safe in a state—any state—that has already fallen in line with Fusion Centers—those regional data-gathering centers that record just about everything and anything that is traceable about you? These are the same data warehouses that have enabled the current Administration to decide whose disposition is a threat to the state.  That would be the same “disposition matrix” that the Administration is so excited to use in its never-ending war on random brown people that they don’t like, especially since it justifies the use of pre-emptive policing, decreasing privacy safeguards that used to require warrants, subpoenas and evidence before persons and possessions were spied on, surveilled, searched. Of course, decreasing privacy safeguards for you and me is inversely correlated with increasing privacy and immunity for the state, to protect it from having to share its evidence—with the defense, with the courts, or the public. Not that any of that influenced last week’s findings by a Senate Investigative committee, despite its conclusion that Fusion Centers were an enormous waste of money. Apparently, the upending of privacy was not so much an issue; it was fairly low on the list of objections to the program.

Many of the same folks who rush to vote for Democrats at the national level, and accuse various folks of “racism” and white privilege are conspicuously indifferent about the fact that our liberal Massachusetts Democratic governor Deval Patrick just signed into law a MANDATORY MINIMUM Sentencing law—18 (EIGHTEEN) years after Big Dem Bill Clinton signed it into law. 18 years later, with countless stories about the increasing harassment of many black men and women for “felony” convictions for crimes like having stolen a slice of pizza, and after an increasing drug war–the good people of my “safe” state have barely noticed. As early as 2001–11 years ago–the ACLU issued a statement showing the horrific implications of mandatory sentencing:

“Restrictive sentencing guidelines and statutory mandatory minimum sentences have taken away the discretion of judges to tailor sentences to fit the individual circumstances of particular crimes and offenders. Thus the traditional requirement mandated by the Eighth Amendment that punishment maintain some proportion to the crime committed has been abandoned in the name of the ‘war on drugs.’

 

The result is the sentencing of many non-violent drug offenders to unjustly harsh prison terms where they crowd prisons already filled above capacity….Adding to this problem is the fact that mandatory minimums, designed with the noble intention of reducing the racial inequalities too often resulting from judicial sentencing discretion, in practice simply shifts discretion from the judge to the prosecutor. Prosecutors retain the power to plea bargain by offering defendants plea agreements that avoid the mandatory penalty. Studies have shown that this discretion results in a disparity in sentencing outcomes based largely on race and quality of defense attorney….

 

These harsher sentencing guidelines, and the billions of dollars poured into enforcement efforts, the incarceration of offenders, and the building of new prisons each year, have failed to curb drug use, which is still on the rise.”

 

Eight years later–in 2009, the American Bar Association objected to mandatory minimum sentencing for non-violent offenders and pointed to some of the severe ramifications: length of sentences has increased three-fold. The US incarceration rate is 5 to 8 times higher than Europe. 25% of the world’s population was incarcerated in US prisons (this number most likely excludes prisoners in “detention centers” like immigrants and “suspected terrorists,” who haven’t been charged with any crimes).  As well, people of color were disproportionately targeted under mandatory sentencing for drug laws—noting that crack was the only drug that induces it.

And yet, the outcry against the MA legislature’s passing of this bill this year—in 2012– was muted. Mostly silence even after our Democratic MA governor signed it. And yet, we’re worried that racism and misogyny only occurs under Republicans?  What about the increasing state-led targeting of people of color in one of the most “liberal” states of the Union?  Feeling safe? I’m betting they aren’t.

In addition to fusion centers and mandatory sentencing laws, we also have a “Secure Communities” (S.Comm) program to profile and cross-check the immigration status of anyone—ANYONE (so clearly it must be race-neutral, right? Um, that was sarcasm) who attracts the notice of law enforcement in the course of their duties: migrant women who might be in situations of domestic violence, migrants who have information about crime in someone’s neighborhood, a brown person who’s stopped for a traffic violation. Terrifying undocumented migrants into NOT reporting to the police only facilitates the break-up of communities. The destruction of trust between neighbors. The increased sense of danger among residents.  To his credit, Gov. Deval Patrick tried to resist the implementation of this policy in Massachusetts, only to be strong-armed into a mandatory enforcement by ICE commissioner Janet Napolitano, who works for…a Democratic President under whose watch a more stringent policy resulted in the deportation of 1.4 million migrants in the last 3.5 years. More—MANY—more than under the combined terms of the Bush Administration. Having to compromise with Republicans was the problem, I’m told. News flash #2: ICE deportation policy is independent of Repubican wishes. It is, however, decided in conjunction with POTUS and WH.

Upshot: Latinos and dark-skinned Muslims–especially if they appear remotely suspicious–should expect to have their residences, existence, morality questioned legally. Constantly. Daily. And white people? No worries. Just go on. Get your double skinny latte and be careful not to spill it on the leather seats of your Lexus SUV on your way to work.

Here’s another example of the “safety” of Massachusetts: We are “safe” from the crazy free speech terrorist Tarek Mehanna. Mehanna is a Pakistani-American. YES, he is a US citizen, born and bred. Educated in the US public schools, Mehanna was a pharmacist.  Charged with terrorism, Mehanna was alleged to have trained with a terrorist camp in Yemen for 2 weeks. On his return from Yemen, he began posting writings and fairly critical dissent online. The ONLY thing we have as proof of his terrorist leanings are evidence of his writings and dissent. And those were deemed threatening enough to lose first Amendment protections.  Apparently the first Amendment applies only to people who write things that the US state likes, like swooning propaganda about POTUS’ kill list and uncritical journalism (I’m tempted to put about 20 links. But I’ll resist).

How about Rezwan Ferdaus? Another Massachusetts resident, a U.S. citizen of Bangladeshi descent, who was convicted of terrorism by making IED detonators per request of undercover FBI agents. He pled—i.e. there was NO trial and so NO public evidence—to charges of attempting to destroy a federal building and “attempts to provide material support” to terrorists.” He was also a drummer in a rock band “Goosepimp Orchestra,” and went by the name “Bollywood.” Until 2010—when he was 25 years old—not 16, 18, or 20—he suddenly evinced an urge to kill Americans—at the prompting of undercover FBI agents. Really? At the age of 25, he undergoes a shift from drummer to terrorist? Clearly, young South Asian musicians need to watch out—they might find themselves overwhelmed by “terrorist leanings.”  Prior to 2010, Ferdaus’ only evidence of “terrorist” behavior was a high school prank—pouring cement on the doors of his high school as a senior, and smoking pot. Yes—such evidence of “terrorist behavior…just imagine. By this rubric, every male white high school senior is well on his way to being a terrorist. Wait. Except of course that they’re white. And Ferdaus is not.

This—notion of skin-color—of race—is not random or shrill. It’s not just a distinction of fact. It is a key conceptual distinction. Of a long-standing cultural-racial bias, which has been long-directed against men with black and brown skins. The assumption of guilt, of evil, of terror, of sexual violence has been a ubiquitous, historically evidenced, implicit charge directed against Black men. As Ida B. Wells and Angela Davis, among others have discussed, these assumptions are among the causes behind the shackling, whipping, and close oversight of thousands of young Black men under slavery—to protect the “virtue” of white women. It was the source of the lynching of thousands of men post-slavery, under Jim Crow.  The source of incarceration of thousands of Black men.

It was extended to thousands of brown men—Latino—and now Muslim: Young Muslim men are assumed to be beholden to the culture of terrorism. The argument is basically as follows: young Muslim men, in places like Palestine, Saudi, Egypt—are raised to understand “terror” as a valid form of expression. “Experts” never bother to illustrate how exactly a “culture” of terror always seems to be associated with brown men raised in Muslim or Arab (and Muslim-American) households, but never in white households like those of Ted Kaczynski, Timothy McVeigh, Terri Nichols, James Holmes or myriad of other perpetrators of mass violence.

It is nonsensical to ascribe a culture of terrorism to any of these shooters–white or brown.* As philosopher Uma Narayan argues convincingly, “culture” is difficult to ascribe to anyone without overgeneralizing, without overdetermining. In fact, we are all very much enveloped in different forms of culture—patriarchal culture, political culture, telenovela culture, fast food culture, exercise culture, yoga culture, sports culture. We pick and choose pieces of it, and many of those pieces overlap with segments of other cultures.  And yet, culture—however we want to understand it—is often deployed to assign either guilt (or praise) by association to someone by virtue of their family/ethnic/religious background. The mainstream media love to discuss domestic violence by brown Muslim men as part of “Muslim culture” and “honor killings,” but I rarely—make that NEVER—hear them discussing rape and domestic violence as part of “patriarchal culture.” In fact, by the same logic, we could argue that beating women and killing men is part of “white culture.” Spurious aspersions, methinks.

Similarly, the FBI, the CIA, the NYPD, the US DOJ have no problems doing the fallacious—the unthinkable: ascribing the most racist, most heinous motives to young men by virtue of their race, religion, or ethnic backgrounds (Black, Brown, Muslim, Bangladeshi, Pakistani—the list is endless)—through the flimsiest associations. In large part, this is because the U.S. has legitimated this way of thinking by building it into the legalized, pre-emptive, hunt for terrorists. Into legal bills such as the USA Patriot Act. NSEERS. The Military Commissions Act. FISA. H.R. 347. NDAA. No-Fly lists. TSA search policies. NYPD Surveillance Operations.  All of these, while ostensibly having a different function–legalize, proceduralize, and reiterate guilt by association: If you look like a terrorist—how often have we heard that?–then there is reason to search you.

Safe state. Indeed.

We know how keen the FBI is to surveil and entrap young Muslim men. In fact, it’s their new talent: find young men, preferably somewhat lost and finding their way in the world—and by all means they should be black or brown and Muslim—and lure them into feeling self-important for a cause other—bigger–than themselves. Hell, when I was 20, radical feminists could have easily lured me into damaging Laura Ashley stores in the hopes of turning young women away from grotesque, high-necked, badly designed frocks.

Is there a difference between the Democrats and the Republicans? Perhaps so. For a very small subset of folks who are still “safe” and can vote “safely” for their Democrat in their “safe” state. That difference is nearly nonexistent and/or rapidly waning when it comes to the quotidian existence of the poor, migrants, and brown and black men and women in every state—who must wake every day to check and see which side of the law they are on—and whose side they must curry favor to, in order to avoid the wrath of the law. Safe states. Safe for whom? Certainly not for young black and brown and Muslim men and women and their families.

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*An older version of this post mistakenly had the following sentence: It is nonsensical to ascribe a culture of terrorism to any of these white shooters.