Jeremy Hammond and the Amorphous Rule of Law

 "To bring about the rule of righteousness in the land... so that the strong should not harm the weak."
                      - Hammurabi's Code, Prologue

Justice in America is a funny concept. Publicly, we pay lip service to the grand ideas of "innocent until proven guilty" and "justice is blind", while in casual conversation the average person is more than willing to admit to that the rich and powerful get a much different rap than the rest of us. Most everyone is well aware that who you are is the key variable in how you're treated by the system. If you're black and living in Oakland or Baltimore, or Latino and living in Arizona, chances are you have a very different image of the law and what it stands for than the average suburban white male does. But racial injustice is only a symptom of the larger problem: that our laws make no real effort to prevent the strong from harming the weak. They, in fact, facilitate it.

Rarely is this more clear than when you look at who the state chooses to hold accountable, and to what degree. As Glenn Greenwald notes today, big banks and other powerful entities are simply above being prosecuted, while small time drug offenders (even if they've been likely set up) are sent to jail for life. In the wake of the subprime mortgage crisis, and the creation of the Occupy movement, this is an important distinction to make.

But while disproportionate and ridiculous crackdowns on drug offenders are largely the result of terrible politics and lawmaking, it is another thing entirely to see the government in action against those who might pose some actual threat to its power - those who don't share the establishment worldview and are sick and tired of the status quo. In this battle, the internet is the great equalizer, giving activists the power to do more than just stand in a designated zone, hold up signs, and chant slogans for a couple hours. So it comes naturally that the government strikes out at internet freedom, at Wikileaks, and at anyone sharing a similar philosophy. And now, mirroring one of its favorite real-world tactics, it increasingly does so under the auspices of fighting something called 'cyberterrorism'.

Jeremy Hammond fits the bill as exactly the type of person the government would just love to call a cyberterrorist. Hammond is a political activist, hacker, and as a recent Rolling Stone article about him puts it: enemy of the state. There's a picture of him in dreadlocks floating around, and he claims to have smoked pot every other day since he was 16. You can just hear the stuck-up national security types around the beltway shouting "what a fucking hippy". Earlier this year, he was arrested on charges that he was deeply involved in the Stratfor hacks apparently committed by Anonymous. He faces a potential sentence of thirty years to life if convicted, and if things follow the current course, he's very likely to be convicted.

Why do I say that? Recently, Hammond was denied bail on grounds that he presents a "a very substantial danger to the community". As Rolling Stone describes it:

On November 21st, 2012, more than eight months after his arrest, Jeremy Hammond was denied bail by a Manhattan federal court judge. The hearing before Judge Loretta Preska, a Bush 41 appointee known for her conservatism, took nearly two hours, and was dominated by an impassioned plea by Hammond's defense counsel. "There is no way I can prepare for this trial while this man is in prison," his lawyer, Elizabeth Fink, a well-known civil rights attorney, stated, noting the hundreds of thousands of pages of discovery – much of it highly technical forensic material – which she found almost completely incomprehensible. Her colleague, Sarah Kunstler, put it even more plainly. "As lawyers, we don't understand [the evidence]. We don't have that sophistication."

Preska, however, was unmoved – even with multiple assurances from the defense that Hammond, who doesn't hold a passport, was not a flight risk and would remain under house arrest at the home of Manhattan lawyer Michael Smith, an "officer of the court" who was willing to guarantee that Hammond would have no access to a computer.

Mrs. Preska also has a bit of a secret: it just so happens she's married to a client of Stratfor whose information was obtained in the very same hack Hammond is alleged to have committed. And even though we in America love to pride ourselves on the glories of the trial by jury system, the reality is that the judge that presides over any given criminal case has a significant amount of sway in how a case turns out. They decide on not just whether or not the accused will be offered bail (and therefore have an easier time preparing for the eventual trial), but also what evidence is permissible in court and what is not.

As there is clearly no legitimate reason to deny the defense's request for bail given the restrictions Hammond would be under, we have to ask the question of whether or not there is an obvious bias at play here. The prosecution's over-the-top characterization of how dangerous he is, and Preska's acceptance of it, only further add fuel to that fire.

Some may find the idea that a judge has already taken sides from the start hard to believe, but what is a hearing for bail if not a judgment of character? In this case, it's even more profound than usual, because of how ludicrous the denial is at face value. Consider what this passage from the original story says about preconceived notions of guilt:

Prosecutor Rosemary Nidiry replied that pretrial services recommended bail denial because Hammond faced warrants twice before for alleged parole violations.

Fink replied that the pretrial services report the government gave her that morning did not include copies of these warrants.

She added that other courts eventually threw out both warrants.

"None of this resulted in any sentence," she said.

Preska replied: "So what?"

Punishment or not, the alleged violations showed a pattern, Preska said.

Let's back up for a moment and digest all of this. A singular judge is deciding whether or not an accused citizen will stay in prison for the months if not years it will take for his case to resolve (keeping in mind the trial will not even start until at least September 2013). This decision is supposed to be based on an objective view of how much of a criminal risk he is in the meantime. But, despite the fact he has no passport and would be under house arrest, this judge considered him a flight risk. She also apparently considered him to be more of a danger than sexual predators because he... knows how to use TOR. This, even though it would be guaranteed he wouldn't have access to a computer, let alone one that could connect to the internet. And to top it all off, her logic in determining how likely he is to commit a crime while out on bail is predicated completely on warrants for alleged parole violations that did not result in any sentencing.

Either we can buy this pathetic explanation, or we can consider that, given the fact she is a powerful conservative judge whose very rich husband was a client of Stratfor, she might be a little biased against the self-described "anarchist-communist" Hammond.

And while the Stratfor connection is a blatant red flag and conflict of interest which should warrant an immediate recusal, we should not harbor any illusions about her being less biased if that connection were not there. This is, after all, someone who was on Bush's short list of potential Supreme Court nominees. Someone who is a member of the Federalist Society - a front group for far-right authoritarians who like to refer to their subservience to powerful, monied interests as promoting "freedom" and "liberty". This is not coincidental doublespeak. If nothing else, lawyers are intelligent people who have firsthand experience cloaking their arguments in a different language. For instance, Preska herself regularly decries "judicial activism", despite being seemingly the exact definition of a judicial activist. This, of course, is nothing new. The Federalist Society and like-minded law professionals have long made a clear, concerted effort to label anything they don't agree with as activism, and their position is proudly espoused by at least a third of the current Supreme Court.

This type of concealment of one's true position, complete with obfuscation of the meaning behind words, is endemic to the very culture of American law. The public wants judges to be impartial, all of the scholarly literature says they must be, and many judges do strive toward that goal. Yet we have to understand we're relying on human nature to prevail over the vices of power. Given that the top positions for judges are politically appointed, and politics in America is a game played by the super rich and super powerful, the ambitious judges (who try the most important cases) are regularly incentivized to play toward the ideology of one of our two lovely corporate-sponsored parties. Even on the other side of things - when a judge's conscience manages to out muscle their id and ego - you can be sure they're well aware of the famous words of St. Augustine: "an unjust law is no law at all." When it truly matters, there is simply no incentive to stick to the law as it's written.

Add to this the fact that judges are basically taught from the start how to fabricate and piecemeal the law to back up what they believe, and you have a clear recipe for "activism".  The adversarial system, despite its many positive aspects, itself creates an atmosphere where both sides work backwards - from a position of certainty (guilt or innocence), toward gathering evidence tailored to fit that position.  Similarly, when powerful justices write decisions with wide implications they first come to a conclusion based on their personal opinion, and then cite from past legal episodes to back it up.  They're smart about it, and they're subtle in their wording, but this is what they do.  Don't take my word for it, though.  Read through some of the big Supreme Court rulings, and decide for yourself.  Take notice that no matter the verdict, all sides draw on extensive amounts of previous arguments and precedent - often referencing the same cases on both sides.  This is not simply a difference in how they interpret one decades-old decision or another, it's a difference in how they see the world as a whole.

Look at it this way: If you personally held the power they do, would you use it to act as a positive force in the world, even if it meant picking and choosing from legal rulings? Even if it meant having to uphold a law you believed in, like the Civil Rights Act of 1964 for example, on something as ambiguous as 'interstate commerce'? Yes, you would, because you'd know that bastard Scalia (or someone like him) was doing the same thing on the other side of the ball. If you don't play the game, he wins. And if he wins, we're all doomed.

I mean, when it comes down to it, do we really believe that judges are people whose utter dedication to the rule of law supersedes their personal code of ethics? Of course not. And in this case it's more than clear that it is Loretta Preska's own personal code of ethics - not some purported objective analysis - which causes her to believe that Jeremy Hammond is a serious threat to us all.

Which is strange, because everything I know about ethics tells me she's a hundred times the threat to humanity he could ever be.

Update (Dec 13)

While it seems obvious that Judge Preska should recuse herself, it just so happens she has refused to do so in the past when called out on a conflict of interest. That doesn't mean it won't happen, but I'm not getting my hopes up unless we can put a lot more pressure on the situation.

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