February 25, 2013
Whitey Bulger and Aaron Swartz: Protecting the Guilty and Punishing the Innocent
Today’s Fresh Air is devoted to an interview with award-winning journalists Kevin Cullen and Shelley Murphy, whose new book, Whitey Bulger: America’s Most Wanted Gangster and the Manhunt That Brought Him to Justice, tells the extraordinary story of South Boston’s gangster king, Whitey Bulger.
It’s the story of a man captured in 2011 after 16 years on the run. By then, Bulger was wanted for 19 murders, extortion and loan sharking– crimes committed while leading a criminal enterprise in Boston from the 1970s until 1995… But the genuinely remarkable part of the tale is that through most of his criminal career, Bulger was being protected by the FBI, for whom he was acting as an informant. Intent on pursuing the prosecutions (of the major Cosa Nostra figures, “associates” of Bulger’s on whom he was ratting), the FBI shielded him from scrutiny and covered up his crimes– including multiple murders.
The FBI agents immediately involved in the Bulger case were disciplined (one, sent to prison for 10 years). The Bureau’s position is that they were “rogues,” a sad exception to the institution’s norm. But Cullen and Murphy aren’t buying it; as they explain, the scope of the cover-up(s) was such that it was simply inconceivable that two stray agents could have pulled it off. They are convinced that culpability goes much, much higher into the Department of Justice.
It’s a riveting– and alarming– tale of individual crime and institutional malfeasance that you can hear here.
Against that backdrop, I caught up with Techdirt‘s report on the progress of the Congressional investigation into the DoJ’s prosecution of Aaron Swartz– the title of which, says it all: ”DOJ Admits It Had To Put Aaron Swartz In Jail To Save Face Over The Arrest.”
As Techdirt and Huffington Post explain in their coverage, DOJ reps told Congressional staffers that part of the reason they went after Swartz with such zeal was his infamous Guerilla Open Access Manifesto, which argues:
We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.
Note that Aaron was making, for the most part, a pretty uncontroversial argument, advocating perfectly legal (albeit unusual) action, not any kind of piracy: taking stuff that’s out of copyright and adding it to the archive; buying secret databases and putting them on the Web. It’s the scientific journal plea that’s at all controversial– though in context, it’s not all clear he was advocating any copyright violation… and indeed, as Techdirt suggests, we seem to be “moving to an age where more and more [of that scientific research to which Aaron spoke] is open access anyway.”
Still, as HuffPo reports, the government found it ground for action: ”The ‘Manifesto,’ Justice Department representatives told congressional staffers, demonstrated Swartz’s malicious intent in downloading documents on a massive scale.”
In the event, Aaron released nothing. It’s possible that he planned to release all of the JSTOR documents he downloaded; it’s also possible that he meant to release only those in the public domain. We’ll never know.
In any case, it seems clear that he was being prosecuted for (what the DoJ took to be) his “malicious intent”… That’s to say, for his opinion, as expressed above, on how information should be available.
The institutional rot that led the DoJ to cover up multiple murders in the Bulger case may or may not have been cleared away; the FBI and DoJ may no longer be protecting the guilty from punishment. In any event, the opposite now seems to be true: it seems clear that the capture of the Justice Department by the Intellectual Property establishment is pretty complete. (C.f. this piece from 1999; the packing of Justice with entertainment/media industry lawyers has continued apace.) The result is the “arrest [or take-down or confiscate] first, ask questions later” approach to “enforcement” with which we live today… It was once the pride of Americans’ that, while we may or may not agree with each others’ opinions, we zealously protected each other’s rights to have them and to express them. Today, those opinions are all too likely to be grounds– the sole grounds– for prosecutorial zeal.