Fresh off of explaining why the President can use drones to kill Americans on American soil, Attorney General Eric Holder apparently feels emboldened to say just about anything to justify ridiculous government actions. The latest? Defending the Aaron Swartz prosecution at a Congressional hearing called by Sen. John Cornyn, who has already expressed his concerns over the prosecution. As you might expect, Holder stuck with the official line that what the DOJ did in the Swartz case was perfectly reasonable. The key to his argument, as we've been hearing from others who defended the government's actions: the DOJ never intended to put Swartz in jail for 35 years. Also, apparently it was unfair of the media to use that 35 year number.

As I've talked to the people who have looked into this matter, these news reports about what he was actually facing is not consistent with what the interaction was between the government and Mr. Swartz. A plea offer was made to him of 3 months, before the indictment. This case could have been resolved with a plea of 3 months. After the indictment, an offer was made and he could plead and serve 4 months. Even after that, a plea offer was made, of a range of zero to 6 months, that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months. There was never any intention for him to go to jail for a period longer than 3, 4, potentially 5 month range.

These claims are not only misleading, but also total and complete bullshit. First off, if you never intended for him to spend more than 6 months in jail, and you're upset at the "media" for using the 35 year number... why is it that the DOJ's own press release on the arrest played up the 35 years:

AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.

I'm sorry, but you don't get to push that number around in your own damn press release and then whine and complain about how "unfair" it is that the media uses the number you gave them.

Separately, concerning the insistence that they never wanted him to spend more than 6 months in jail, they leave out the fact that this was only if Swartz agreed to plead guilty to multiple felonies. According to various reports, the DOJ, via Assistant US Attorney Steve Heymann made it clear that if Swartz did not agree to the plea, then he would seek somewhere around seven years in jail.

Cornyn goes on to ask about why the DOJ pursued the case even after the supposed "victim," JSTOR said it didn't want to have anything to do with the case. Cornyn specifically asks if it makes sense to threaten someone with 35 years in prison when the victim doesn't even seem to feel harmed by the situation. Holder than tries to spin this around and, incredibly, argue that the fact that they didn't pursue the full 35 years is an example of good prosecutorial discretion. Seriously.

Cornyn: The subscription service didn't support the prosecution. Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3 or 4 month prison sentence?

Holder: Well I think that's a good use of prosecutorial discretion. To look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, 0 to 6 was consistent with that conduct.

In other words, the only thing Holder is really saying here is that there was perfectly reasonable prosecutorial discretion if and only if Swartz agreed to a plea bargain in which he plead guilty to all felony charges against him. Basically, it's a "good use of prosecutorial discretion" to bully someone into pleading guilty to a crime they don't believe they've committed, and as long as they accept that, go to jail, and be okay with being labelled a felon for life, then there's no problem.

How do we let these people into positions of power?

Almost exactly two years ago, we wrote about ICE and the DOJ arresting Brian McCarthy, the operator of Channelsurfing.net, one of the domain names they seized in one of their seizure parties earlier that year. As we noted at the time, Channelsurfing itself appeared to host no video content, but rather embedded video content from elsewhere. We had trouble understanding how that was a criminal copyright violation. Some of our usual critics in the comments insisted that the courts would take down McCarthy and that he was in clear violation of criminal copyright statutes and would end up in jail. That still seemed fairly dubious -- and that's now supported by the feds agreeing to "grant amnesty" to McCarthy by "deferring" the trial.

What this really means is that they effectively came to a plea bargain-type of deal, whereby McCarthy is not found guilty and doesn't have to spend any time in jail. He does still get treated under what appears to be effectively a parole type system -- in which he needs to stay out of trouble for a while, and has to regularly check in with a "US Pretrial Services Officer" (and he can't leave his local region without permission from the same). He does still have to pay back the amount that the feds claim he earned illegally.

Who knows what's happening fully behind the scenes, but it seems likely that the Aaron Swartz suicide, and the new focus on over-aggressive US prosecutors' attempts to coerce guilty pleas out of individuals in vaguely similar situations, might have led US Attorney Preet Bharara and his assistant Christopher Frey to realize that it might be best to cut a deal and run. Actually taking a case like this to court would be a PR disaster for the DOJ following the whole Aaron Swartz thing, and people at the DOJ must recognize that. Given that the DOJ similarly had to drop other cases that came out of domain seizures, including the ones involving Dajaz1 and Rojadirecta, the gung ho attitude to the DOJ took towards seizing websites based on the RIAA and MPAA's questionable claims of infringement is increasingly looking like a complete disaster without any significant results.

Over the weekend, in our post about Aaron Swartz, we highlighted Larry Lessig's quite reasonable anger at US Attorney Carmen Ortiz's failure to even suggest that she and her office might review their actions against Aaron Swartz to see if they were reasonable. He wasn't calling on them to necessarily repudiate their actions -- but to at least admit that they would review what they had done to determine if it was appropriate. Instead, Ortiz's statement took the hard line that what they had done was appropriate, full stop.

And, now, her office is continuing to stick to that hard line. No self-reflection. No review. No admission that it's even worth reviewing. Just a faith-based belief that everything they did was correct and they will continue to treat every case exactly the same going forward.

Ortiz’s spokeswoman, Christina DiIorio-Sterling, said last night the Swartz case won’t affect the office’s handling of other cases. “Absolutely not,” she said. “We thought the case was reasonably handled and we would not have done things differently.

“We’re going to continue doing the work of the office and of following our mission.”

Many others are calling on Ortiz, or her bosses in the Justice Department, to recognize just how much power they have over someone's life, and that this power must be used carefully. The response of Ortiz and her spokespeople seems to show not even the slightest sympathy or recognition that they have the power to destroy lives, and that such power needs to be used judiciously. It strikes me that someone who fails to have humility while in control of such power is someone who is simply not qualified to hold such an office.

While we've seen some politicians in Congress speak out about the prosecution against Aaron Swartz, for the most part, it had been the "usual crew" of folks who had formed the core of the anti-SOPA alliance -- Reps. Lofgren, Issa and Polis. That's great, but it also made it unfortunately easy for some to dismiss their complaints. However, it appears that this may be getting bigger. Senator John Cornyn has jumped in and sent a letter to Attorney General Eric Holder asking for an explanation of the prosecution against Aaron Swartz. He specifically asks a number of interesting questions:

First, on what basis did the U.S. Attorney for the District of Massachusetts conclude that her office’s conduct was “appropriate?” Did that office, or any office within the Department, conduct a review? If so, please identify that review and supply its contents.

Second, was the prosecution of Mr. Swartz in any way retaliation for his exercise of his rights as a citizen under the Freedom of Information Act? If so, I recommend that you refer the matter immediately to the Inspector General.

Third, what role, if any, did the Department’s prior investigations of Mr. Swartz play in the decision of with which crimes to charge him? Please explain the basis for your answer.

Fourth, why did the U.S. Attorney’s office file the superseding indictment?

Fifth, when the U.S. Attorney’s office drafted the indictment and the superseding indictment, what consideration was given to whether the counts charged and the associated penalties were proportional to Mr. Swartz’s alleged conduct and its impact upon victims?

Sixth, was it the intention of the U.S. Attorney and/or her subordinates to “make an example” of Mr. Swartz? Please explain.

Finally, the U.S. Attorney has blamed the “severe punishments authorized by Congress” for the apparent harshness of the charges Mr. Swartz faced. Does the Department of Justice give U.S. Attorneys discretion to charge defendants (or not charge them) with crimes consistent with their view of the gravity of the wrongdoing in a specific case?

Interesting questions all around. As Emptywheel notes, that second question is a bit of a new one. People have talked about the earlier investigations of Aaron, as well as his activism, but little attention has been paid to his widespread use of FOIA. However, Aaron did file a lot of FOIA requests, using the same platform, MuckRock, that we've used here at Techdirt. In fact, MuckRock put up a post about Aaron's use of that service including the fact that Aaron and MuckRock were currently in the middle of appealing the results of a FOIA request concerning domain seizures -- a story that potentially could implicate the DOJ.

I am sure that we'll get the usual bland denials and non-answers from Holder, but it is significant to see Senators like Cornyn suddenly take an interest in this particular issue.

We've been following the Surfthechannel/Scopelight case since early on, and there have always been serious questions about it. More than three years ago, we were wondering why a private, Hollywood-financed anti-piracy operation called FACT wasn't just able to take part in the raid of Anton Vickerman's house, but also got to take the computers that were seized. A private party should never be able to get the computers of those that they're accusing in a criminal case. Soon after Vickerman was declared guilty, we discussed some anonymous courtroom notes that suggested extremely serious oddities with how the case was conducted -- including (again) FACT more or less running the show, and having trouble keeping important data.

Following Vickerman's sentencing last week, even more info came out about the case that raises incredibly important questions about its validity. Tim Lee over at Ars Technica has gone through the issue in great detail, highlighting how FACT didn't just take part in the raid, but it financed the government agency that did the investigation and then financed and ran the criminal prosecution against Vickerman.

Lee explains that this is an oddity/antiquity of UK law, in which private parties are actually allowed to bring criminal charges against other private parties, rather than (as in the US) needing the government to decide to bring charges. In fact, in this case, government prosecutors expressly refused to bring charges noting that they didn't think there was a case -- information that was kept from Vickerman. From the Crown Prosecution Service:

I understand from [Northumbria Detective Constable] Watkin that there have been no other successful prosecutions that he is aware of where we could point to this type of website being classified as amounting to "making available... by electronic transmission," the legal standard needed to find Vickerman guilty of copyright infringement. At present it appears uncertain if in fact what the suspect has done does infringe this particular legislation. Certainly on the evidence thus far provided it is impossible for me to determine if this is the case and therefore I cannot advise any prosecution on the evidence presented.

The CPS found the whole thing bizarre:

His 'crime' is to make it easier for others to find what is already there. This begs the rather obvious question of why he is being pursued rather than those who actually breach the copyright by displaying the material.

And yet, FACT went through with the case, because of an oddity in UK law that lets a private party pursue a criminal charge if they're willing to finance it. And FACT was more than willing to finance nearly ever aspect of this case, apparently. It did the original "investigation" in which it apparently recorded a key meeting. The two sides dispute what was said in that meeting... but FACT can't seem to find the recording (of course). The report also explains how FACT funded the Bedfordshire Trading Standards Financial Investigations Unit (BTSFIU), officially a government agency, but one that was directly funded by FACT to be its own private police force, and which apparently took the job gleefully.

Of course, you would think that some of this info would get out before a judge, but the judge seemed equally unconcerned with the law, as focused as he was on Vickerman apparently being arrogant. Even more bizarre, the judge didn't seem at all concerned about precedents that went the other way. For example, the TV-Links case, which was quite similar, ended up with an acquittal, so you might think that any reference to it would be in Vickerman's favor. Not in this judge's mind:

TV-Links had already engaged in a similar operation but you believed you could do better. You pressed on knowing that TV Links had been taken down following the intervention of FACT on the basis that what it had been doing was unlawful

Yes, you read that right. Even though TV Links was found to be lawful, in this judge's mind, the fact that it had been taken down by FACT (the same group prosecuting this case), should have been evidence to Vickerman that STC was illegal. Think about that for a second. It's almost mind-blowingly ridiculous. The mere accusation that another site was illegal, even though that later turned out to not be true was enough evidence for this judge that STC's actions were illegal. How does a judge who thinks that way keep his job?

The judge also does not seem to understand the nature of the internet or links, or how user generated content works. He seems to think that before anyone can post a link to a website, the owner of that website should need to contact a copyright holder to find out if the posting of that link and the underlying content it points to are legal. Seriously:

When it was suggested in cross examination that it was obvious that the films that you were posting links to were to links to recent films and that you were helping people to link to copyright infringing films, you insisted that you couldn’t know if it was infringing copyright, that the studious might have granted right holder licences to the films of which you had no knowledge. That was certainly true and bound to be true if you didn’t bother to check with the copyright owners and check you most certainly didn’t.

The judge also takes a movie studio exec at face value, when she tells the court that "piracy" means fewer blockbuster movies -- despite the fact that approximately four times as many movies were made last year than were made 15 years ago. Actual facts don't appear to be this judge's strong suit. He also uses the fact that since the movie industry pays taxes, if it struggles, fewer taxes are paid. But, if that's a crime, then any industry that is declining suddenly can implicate any upstart competition for those same reasons.

The whole thing is both bizarre and scary.

One hopes that, given these rather horrifying details, conflicts of interest and inconsistencies, it will be possible to revisit much of this on appeal.

As lots of publications are reporting, over in New Zealand, Kim Dotcom took the stand to testify about how the police treated him during the raid on his home as part of the international effort to seize and shut down everything related to Dotcom and Megaupload. I have no idea if the claims he makes of being kicked and punched and the like are accurate. I'm sure his detractors will question how trustworthy the testimony is. Frankly, I have no idea how accurate it is.

But here's the thing that I find most interesting. Buried all the way at the end of the Stuff article linked above is the following line:

The Crown is seeking for all images and CCTV footage from the raids to be suppressed.

To me, that seems like a point that should be made up top. If Dotcom is being inaccurate in his descriptions, then wouldn't showing the video and images that prove him wrong basically destroy all of his credibility and help the government with their case? The fact that they're trying to suppress that very evidence certainly lends credence to his claims, and (at the same time) calls into serious question the conduct of law enforcement during the raid.

You may remember last fall's numbers concerning how many first, second and third strikes Hadopi, the French agency in charge of kicking people off the internet for possible copyright infringement, was sending out. Now come reports that France is finally moving beyond just the strikes, and has passed along info on those accused (not convicted) of infringement to "prosecutors" for the next stage, which could result in them losing internet access.

The report also notes that Nicolas Sarkozy, who was the original champion of three strikes plans, is already looking to expand the law to go after cyberlockers rather than just peer-to-peer, as is the case with the current Hadopi plan, apparently. I'm sure, in an effort to support such a move, politicians will push the misleading claim that Hadopi has actually worked, even if the actual data suggests what really worked was wider availability of legitimate services and tools.

Wow! We keep pointing out how bills like Senator Amy Klobuchar's S.978 anti-streaming bill and Senator Patrick Leahy's PROTECT IP Act will be abused by US law enforcement, and we keep being told that those bills aren't "intended" to be used the way they could be. I think part of the problem is that people don't realize how the Justice Department and US Attorneys will sometimes stretch and twist the law just to go after someone.

Last month, we wrote about the absolutely ridiculous case by the US against former Cisco engineer Peter Adekeye. The details have to be read to be believed, but most of it only came to light because a Canadian judge absolutely blasted both Cisco and the US Attorneys for what clearly appeared to be an unnecessarily vindictive criminal prosecution against Adekeye because he filed an antitrust lawsuit against Cisco, after Cisco tried to block third party companies (such as one of Adekeye's) from accessing necessary patches to service certain Cisco equipment.

The whole story was horrifying, but we thought it ended in May when the judge let Adekeye go and gave the Justice Department a pretty big slap for its actions. But... no. Slashdot points us to the news that the Justice Department has just unveiled a new indictment against Adekeye over the same issue: basically someone at Cisco gave Adekeye a login to download patches, and he did exactly that. This is not, in any way, a matter that should involve the Justice Department. The judge in Canada made that clear. The story about Adekeye shows the Justice Department acting for bad reasons -- either incompetence, corruption or malice (pick any two!). And you would think that someone there might think twice before pushing ahead with bogus prosecution against Adekeye (who's finally back in Switzerland after being stuck in Canada for a year), but that's not how the US works.

And this is why we get very afraid when Congress looks to pass broad new legislation that may impact criminal statutes and the kinds of things that US Attorneys can charge people over. I'd like to believe that US Attorneys are good people trying to stop and punish crimes, but we've seen too many cases where it appears that their actions are incredibly questionable. I'm still hopeful that it's just a few bad seeds among the ranks of US Attorneys, but if we keep seeing stories like this...

Whenever we talk about the very serious risks and likely abuses of new laws favored by the entertainment industry -- such as PROTECT IP and the felony streaming bill, S.978, supporters of those bills insist that we're crazy for suggesting that the laws will be abused or that there will be any unintended consequences. We're told, over and over and over again that these laws are designed for and targeted only at the "worst of the worst." They're targeted at "rogue" actors, who must be stopped.

And yet, we've seen all too often how US officials have abused other such laws to attack and protect certain US companies from competition. A whole bunch of you have been sending over this incredibly frightening example of the Justice Department conspiring with Cisco to effectively try to destroy a former exec's life for daring to file an antitrust claim against Cisco, due to Cisco's desire to block competitors from servicing some of its products. Unfortunately, I actually found the version of the story at the Ars Technica link above a bit confusing (and it buries many of the key points). A much better way to understand just what Cisco and some federal prosecutors appear to have done is to read the ruling, embedded below, from a Canadian judge, who explains the whole thing clearly and bashes Cisco and the US Justice Department for its incredible overreach, for no reason other than to try to destroy the life of Peter Adekeye.

Adekeye, born in Nigeria, but a UK citizen, had apparently been a quite successful Cisco exec in both the UK and the US for many years. In 2005, he left Cisco and started a couple of companies himself, including one, Multiven, that offered to help provide maintenance services for various Cisco equipment. Apparently, Cisco tried to force customers into purchasing maintenance contracts only from them by denying third parties, such as Multiven, access to various bug reports and fixes. Because of this, Multiven sued Cisco, claiming antitrust violations. Cisco then countersued, including suing Adekeye directly, claiming that Adekeye had accessed Cisco's internal network illegally over 90 times. Adekeye does not appear to deny accessing Cisco's internal systems, but notes that he was given the login information from a Cisco employee, which he believed meant he was now authorized to use the system. It sounds like he used this access to get some of the info that Cisco had been denying Multiven. As part of its "hardball" litigation strategy, Cisco also sought to get the federal government to file criminal charges against Adekeye based on the exact same issue.

Separate from all of this, Adekeye had been dealing with attempts to get a work visa to be in the US for Multiven. The court ruling documents the incredibly ridiculous bureaucratic nightmare that Adekeye went through over the period of a few years in an attempt to seek proper visas to work in the US. At no time does it appear that Adekeye violated the various visas he did have. In fact, it sounds as though Adekeye bent over backwards (and then some) to always comply with US immigration and visa rules, even when it resulted in absolutely ridiculous circumstances, such as when he wasn't allowed back into the US, even though he'd been granted his H-1B visa. That story is crazy, but tangential to the point here -- though I suggest reading the ruling to get a sense of the ridiculousness of US immigration and visa policy.

In part because he was unable to get back into the US, Adekeye moved to Switzerland where a new Multiven office was opened, and continued his efforts to get his immigration status cleared up. As part of the ongoing legal dispute, Cisco wanted to depose Adekeye. Adekeye applied for permission to enter the US to do that... but was denied, and he was told if he went anyway, it could harm his chances of getting his visa status fixed. And Cisco used this to their advantage:

Notwithstanding this entirely reasonable explanation for his inability to attend a U.S. deposition, Cisco had the unmitigated gall to commence contempt proceedings for the applicant's "failure" to attend a U.S. deposition. It was, of course, unsuccessful, but it speaks volumes for Cisco's duplicity.

Eventually, all of the parties agreed to handle the deposition in Vancouver. It was outside the US, but close to Cisco's offices here in Silicon Valley. There was a separate (again tangential) issue involving the belief (which may not have been accurate, apparently) that a US deposition could happen in Canada without having to alert Canadian officials. It was at this deposition hearing in Vancouver on May 19th of last year that things got crazy. Cisco, knowing full well where Adekeye was and why he was in Vancouver -- and that he had tried and failed to get to the US -- apparently told the US Attorneys, who they'd been pushing to file criminal charges, about Adekeye's presence in Vancouver. The Justice Department then filed its criminal charges -- once again totally abusing the Computer Fraud & Abuse Act (CFAA) to make Adekeye's actions sound much worse than they actually were, and had a warrant issued for Adekeye's arrest.

They then sought rather extraordinary efforts from the Canadian government to arrest Adekeye immediately. Part of that, according to the Canadian judge who issued this ruling, appeared to involve a US Attorney leaving out key information, making blatantly false insinuations about other facts, and in some cases, what appears to just be lying:

The affidavit made no mention of the fact that United States immigration authorities had refused the applicant entry to the United States. No mention was made that the applicant had no criminal record. No mention was made that the United States Federal Court had ordered a deposition in Vancouver, presided over by a "special master" at which six or more United States lawyers would be present. No mention was made that the criminal complaint "mirrored" a counterclaim brought by Cisco in the main action in which the applicant was seeking large damages in an antitrust suit.

Sinister inferences were suggested, leading to an inference that the applicant would be a flight risk. The affidavit stated that the applicant "is a Nigerian citizen who claims to have citizenship from the United Kingdom", and that he possibly had British citizenship, and that he was in Canada on a Nigerian passport. The latter reference invited an inference he might flee to Nigeria, a country from which extradition was highly unlikely. In fact, U.S. authorities well knew and had a duty to disclose to the issuing judge that the applicant was a citizen of the United Kingdom and possessed a British passport, on which passport he had entered Canada. They also knew and had a duty to disclose that he had been a resident of England, but was currently residing with his wife and child in Switzerland, and that he had travelled from Switzerland to Canada for purposes of the deposition.

What happened then was somewhat astounding. In the middle of the deposition, RCMP officials walked into the room, interrupted the deposition in progress and arrested Adekeye in the middle of the proceedings. The beginning of this is on videotape. Adekeye, his lawyers, and the "special master" clearly have no idea what's going on, but what's notable is that, while people repeatedly ask for the recording to be turned off, Cisco's lawyers immediately say that the recording should be left on. It appears they knew exactly what was going on and wanted the humiliating arrest on the deposition tape. You can see the video below. As the judge in this ruling notes, the police's actions "could be compared to entering a courtroom and arresting a person during the course of his or her testimony. It is simply not done in a civilized jurisdiction that is bound by the rule of law." Believe it or not, the situation then gets even worse and even more egregious. Adekeye was, in fact, arrested -- and the charges could have resulted in almost 500 years in jail, all for accessing a Cisco network with a password given to him by a Cisco employee. As you can see, he was removed from the deposition, much to the confusion of the special master appointed by the US court. After being arrested, he asked for bail, and Richard Cheng, an Assistant US Attorney for the Justice Department, sent a letter that was chock full of false and misleading information, which the judge in this case goes through step by step. It falsely implies that Adekeye did not really have British citizenship and that he did not really live in Switzerland. It stated that he used his Nigerian passport to enter the US under an E visa, which was not true. It claimed that the US had denied all of Adekeye's attempts to obtain a visa to visit the US since 2007, which as the ruling now notes "is simply not true." It also falsely stated that Adekeye had fled from law enforcement in the past. Again, the ruling noted "this statement was completely untrue."

And yet, federal officials continued to seek extradition. Even then, months after the arrest, the civil suit between Cisco and Multiven were settled, in a manner that everyone agrees was a "win" for Multiven, with Cisco changing its policy. So the key matter over which this highly questionable criminal charge was brought was settled. And yet, the feds continued to push forward. It was only in May of this year, a year after his arrest, that this new ruling came out and freed Adekeye to leave Canada and go back home.

Honestly, the whole story is really terrifying and makes me depressed to think that my government would do something like this. However, it should seriously call into question whether or not new laws like S.978 and the PROTECT IP Act should be allowed. It seems clear that the Justice Department has no problem using very questionable means to act as the private bullies of certain large companies. It should also call into question some of the recent efforts by other US Attorneys from the Justice Department, such as the efforts in coordination with Homeland Security/ICE to seize domains on questionable evidence, the attempt to extradite Richard O'Dwyer from the UK over very questionable charges and, of course, the recent charges against Aaron Swartz.

All of these cases have key factors in common. They involve what at best should be minor civil issues between private parties in court -- but in which, due to the presence of certain large industry interests, the Justice Department steps in and starts throwing its considerable weight around, including insane possible punishment, all because of dubious and often extremely misleading claims from these private interests. It's possible that the Justice Department officials here are simply incompetent (and honestly, that's an only slightly more comforting idea than the alternative) and unable to realize they're being manipulated by companies seeking to stamp out competition. But it's certainly demonstrating a really horrifying pattern of questionable behavior by the Justice Department and US Attorneys not to focus on real criminal behavior, but to abuse the criminal justice system to take vindictive action against potential competitors for big US industry players.

About a year and a half ago, I heard the somewhat disturbing This American Life episode about how a well-known activist named Brandon Darby, who had made a name for himself during the aftermath of Hurricane Katrina, had become a government informant to turn over two young men who the government claimed were domestic terrorists, intent on bombing the Republican National Convention. It was an interesting story, but I didn't follow it too closely over the past 18 months. However, at SXSW I saw that there was going to be a screening of the new documentary Better This World, which was about that same story, and decided to check it out. There has been some criticism of the documentary as being "one-sided," but I actually felt it does a pretty good job of portraying the highly complex and nuanced issues at play in the case, but your viewpoint may differ depending on a variety of factors. If you're unfamiliar with it, two guys -- David McKay and Bradley Crowder -- were arrested while demonstrating against the Republican National Convention, and it was later determined that the two had created molotov cocktails back where they were staying.

There is no denying the two guys made the bombs, and that's extremely troubling. The big question in the case really became whether or not they were entrapped. Specifically, the question was whether or not Brandon Darby, in his role as an informant "encouraged" McKay and Crowder to make the bombs. I'm not going to argue the specific facts of the case, which many people feel passionate about on both sides of the issue. There's simply no way to suggest that the two men were "innocent" in their actions. No matter how much someone encourages (if, indeed, that's what happened here -- and it's disputed) you to do something, you still have to take responsibility for your own actions -- especially when it reaches the point of building bombs.

That said, the documentary really highlights the ridiculous nature of government prosecutions in cases such as this. In the last few months, we've seen multiple stories, that have a familiar ring to them, involving the FBI busting up "bomb plots" that appear as if they would not have existed if the FBI had not become involved. In other words, multiple cases where it appears that the FBI found people who would have had no capability to actually do any damage, and then were enabled by the FBI or partners to put those people in a position where they could be arrested for preparing to do "acts" that they otherwise would not have been able to do. Is that entrapment? It certainly comes close to the borderline.

The part of the documentary that I found to be most powerful and disturbing, was how the government agents -- both the federal prosecutor and the FBI agents -- almost seemed to gleefully abuse their power to pressure the two arrested individuals to confess to things that both insisted were not true. It certainly raises serious questions about the upcoming prosecutions and/or plea bargains in these other cases. It appears that the feds are not at all interested in determining the truth, but just in getting high profile convictions they can use to claim "wins" against terrorism. The movie is both disturbing and powerful in highlighting just what little chance anyone has to push back against the government if they believe they've been brought up on charges unfairly (again, whether or not the charges really were unfair is a separate question -- but either way, these two had no real chance to get their side heard, and were pressured into corners that left them little choice in how to respond to government pressure). It's a troubling movie for those who would like to believe that the trial system is designed to be fair and get at the truth behind a situation.

In somewhat related news, just days before the film was screened, Brendan Darby (who was the only major player who did not participate in the film, but appears in some older videos that the filmmakers got from other sources) sued the NY Times for defamation, for claiming in an article that he "encouraged" the two men to make their bombs. This question, of Darby's exact role, was clearly a key question in the movie, and also a key point in the plea bargains offered by the government (i.e., in signing the plea bargains, they had to admit that Darby had not encouraged them). Of course, this new lawsuit raises some interesting possibilities, since the NY Times could potentially argue that it's not defamation because it's "true," though they'd have to actually prove that (which could be quite difficult).

Either way, the documentary is worth viewing, especially if you want some insight into the way the government handles prosecutions such as these, and if you'd like to believe in the idea of a fair trial. It also provides much greater insight into why many other countries do not allow "plea bargain" deals, and even find them morally questionable. The opportunity for abuse seems very real, even in cases where people may be guilty.