I continue on break from the UMN Markingson story as I try to make sense—although there appears none to be had—of the tragic death of Aaron Swartz. I am haunted and infuriated by the senselessness of his death and his persecution by overzealous prosecutors. I am also reminded of other witch hunts that were equally misguided and also led to perverse and Kafkaesque results.
In an emergency, what is your duty to care?
One case is that of Dr. Anna Pou, who was attacked by a grandstanding prosecutor, Charles Foti, in New Orleans. She was the heroic physician who stayed in a New Orleans hospital to care for her patients during Hurricane Katrina. She was exonerated of irresponsible accusations of homicide. While hers was not a federal prosecution, it sent a chilling message to healthcare workers—in a disaster, consider if your duty to care for your patients trumps that of your other duties and is worth the risk of the destruction of one's reputation and career, not to mention crippling legal defense bills and even a prison sentence.
In Hurricane Sandy, we again saw many heroic people who stayed to care for others, putting themselves at significant risk. There was considerable government support this time, however, unlike during Katrina. Perhaps that accounts for the difference in outcome. There needs to be some legislative protection for the good people who stay to help. Otherwise, the lesson from Katrina is that it is too dangerous to do so.
Patriot Act warning to researchers
Another example is that of Dr. Thomas Butler, who I wrote about some years ago. He was a leading researcher who, before the government attacked him, was studying treatments for plague, bearer of the "Black Death," a bacteria that might be weaponized and used for bioterrorism. When he reported vials missing from his lab, federal agents descended on his Lubbock, Texas lab, and he was charged--and ultimately acquitted--of 69 felony counts related to bioterrorism. He served 2 years on minor unrelated, “fishing expedition” charges.
What was little mentioned at the time was that Dr. Butler is also the leading researcher responsible for developing "oral rehydration solution," an inexpensive powder that has saved millions of lives in developing countries. This treatment, which replaces intravenous therapy for severe dehydration "is credited by the World Health Organization for saving between 2 and 3 million lives of under-4-year-olds each year around the planet," according to Dr. William Greenough, professor of medicine at Johns Hopkins University.
Dr. Butler's trial was apparently intended to serve as a warning to researchers that the Patriot Act concerns extended to them and would be ruthlessly applied. It has done that. It has also resulted in many researchers losing their willingness to study agents of concern, lest their lives be similarly destroyed.
"Destroying the Life and Career of a Valued Physician-Scientist Who Tried to Protect Us from Plague: Was It Really Necessary?" reflects the analysis by many of Dr. Butler's colleagues, including:
"Reactions in favor of Butler and expressions of concern about the handling and impact of the case have been strong, including comments from the Human Rights Committee of the National Academy of Sciences (NAS), the Institute of Medicine (IOM), the National Academy of Engineering, and the New York Academy of Sciences. The presidents of the NAS, the IOM, and the European Society of Clinical Microbiology and Infectious Diseases, as well as many prominent scientists and physicians, wrote to then Attorney General John Ashcroft to express their concern about the impact of the prosecution of Dr. Butler (the presidents of the NAS and the IOM had written only once before to an attorney general, Janet Reno, and their letter was concerned with the prosecution of Los Alamos National Laboratory scientist Wen Ho Lee).
Four academy members who are Nobel Laureates wrote, on behalf of themselves, that "this respected colleague has been subjected to unfair and disproportionate treatment." . . .many other news sources have run stories suggesting that Butler may have been a victim of the widespread fear about (bio)terrorism and may have been singled out, presumably to serve as an example, as part of a flawed strategy to fight bioterrorism.
We think it makes very little sense to have removed from action such a knowledgeable and active clinician and clinical investigator who was working to protect us from plague--such removal is akin to shooting ourselves in the foot…
Dr. Tom Butler, a physician-scientist and member of the IDSA, respected by all colleagues who know him and his work, has been stripped of his professorship, tenure, salary, and medical license and has spent his life savings and retirement to defend himself. . . He and his family have no sources of income. His situation is a cautionary tale to all of us, especially those who work with biological agents with potential for use in bioterrorism, even if in collaboration with governmental laboratories and scientists."
Yet Andrew McCarthy, a former federal prosecutor, saw nothing wrong with the prosecution, opining, “I don’t think it’s remotely heavy-handed. This is a time when it’s important to get the message out to the world that we’re serious about dealing with components of weapons of mass destruction.”
Dr. Butler's colleagues have gotten the fed's message.
Dr. Peter Agre, was a co-recipient of the 2003 Nobel Prize in chemistry, and is a member of Duke University's faculty, recently said, "many scientists are reluctant to study these organisms because their best attempts to know and to obey applicable regulations still might land them in prison, might cost them their faculty positions, their licenses to practice medicine, or their right to vote."
Dr. Stanley Falkow, an expert microbiologist from Stanford University, echoed Dr. Agre's concerns, noting, "In my letter to Ashcroft, I said I couldn't imagine why I would let my students work in this area when a simple mistake can lead to incarceration," and "they took one of the only experts on plague in the U.S. and totally muzzled and incapacitated him."
When I first wrote about this mockery of justice in 2006, Dr. Butler was working in a Lubbock warehouse, tagging clothing for sale, instead of continuing his valuable research or developing other life-saving therapies, as he had in the past.
“He now has no medical license and no job, and in the eyes of the US government—but not of his colleagues—he is a convicted felon. All of this because he was able to organize and complete a field trial with colleagues at the University of Tanzania that addressed the vital question of which antimicrobials would keep you alive if you were to contract plague.”
Dr. Butler has since gone back to teaching and research—in Dominica—but remains under the eyes of the feds, although acquitted of all the national security count. In 2010, the Miami International Airport was evacuated and he was detained overnight by TSA for carrying a suspicious canister—looking remarkably like a stainless steel thermos to me. Nothing sinister was found and he was eventually released. Some have considered this to have been harassment, rather than an innocent mistake on the part of the government.
One of the fallouts from the Butler prosecution—or persecution, depending on your perspective—is that of dissuading researchers from studying bioterrorism. There is now an extensive list of infectious agents classified as “select” agents. In order to study these, special permissions and precautions must be taken under the “Patriot Act.” Ironically, some of these agents are also found in natural settings, like plague or Q fever.
Do you feel any safer now?
There are common threads in these cases, particularly the two involving federal prosecutors. One striking one is that both Aaron Swartz and Thomas Butler were charged with numerous felonies—69 in Butler’s case and 13 in Aaron’s, and both individuals refused to plea bargain and accept an unjust felony conviction. Both were harassed and driven to financial ruin. Aaron faced multiple “felony counts, each of which ‘carrie[d] the possibility of a fine and imprisonment of up to 10-20 years per felony’, meaning ‘the sentence could conceivably total 50+ years and [a] fine in the area of $4 million.’ That meant, as Think Progress documented, that Swartz faced ‘a more severe prison term than killers, slave dealers and bank robbers’.”
Remember—What was Butler’s crime? Filling out paperwork incorrectly and naivete. And Aaron’s crime? Downloading too many articles with the intent of making them freely available to the public.
Both Dr. Butler and Aaron were extraordinarily bright and had worked tirelessly to better the plight of others—Butler for saving millions of lives from diarrhea due to poverty, lack of clean water and sanitation, and Aaron through making information and education available to all.
Neither had any profit motive. Perhaps that was their fatal error. After all, Carmen Ortiz’s office chose not to pursue prison terms for corporate officers although their actions caused actual harm to patients. Ortiz was quoted in the case of one pharmaceutical company as saying, “Forest Pharmaceuticals deliberately chose to pursue corporate profits over its obligations to the F.D.A. and the American public.” And the cases of both Forest and Glaxo, also involved in a settlement, involved drugs that had serious side effects. St. Jude Medical makes cardiac devices that have been plagued by problems with defibrillator leads, some leading to deaths. And yet, where clearly more harm has been done, there has been no criminal prosecution nor accountability for the responsible executives. Why the selective prosecution of this brilliant young man?
Some, as Professor Jonathan Turley, rips Ortiz’ comparison to Inspector Javert, unable to show any discretion (let alone compassion or sense of proportionality). As Aaron’s friend and mentor, Lawrence Lessig noted, “I get wrong. But I also get proportionality. And if you don’t get both, you don’t deserve to have the power of the United States government behind you.”
Others cite Ortiz’ and Assistant US Attorney Stephen Heyman’s pattern of bullying. Heyman was involved in the case of a hacker, Jonathan James, who also felt driven to suicide.
Ortiz has shown a pattern of selective prosecution. In a recent example, she is going after a small motel owner in Tewksbury, seizing his property because drug crimes were committed there.
“U.S. Attorney Ortiz said through a spokeswoman last week that the government wanted to send a message by going after the motel. But just up the street from the Caswell, the Motel 6, Walmart and Home Depot have all experienced a similar rate of drug crimes on their properties over the years, according to Caswell’s attorneys.
And attorney Salzman says there’s one good reason Ortiz didn’t go after them.
“Mr. Caswell is a small business,” Salzman said. “A single family owned this property, didn’t have the resources to defend himself, and the U.S. Attorney’s office, looking to make an example, picked on the smallest kid on the block.”
There is a certain bitter irony that these federal attorneys are immune from prosecution or civil suits for their actions. For a damning post on how prosecutors can target people, rather than actual crimes, and how they abuse plea bargaining by bringing excessive charges, see Reynold’s “Ham Sandwich Nation: Due Process When Everything is a Crime.”
Others have noted that Ortiz’ prosecution of Swartz was not sound:
“The flaw in Ortiz’s posture has been laid bare by Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals. In United States v. Nosal, he dismissed the theory Ortiz used to go after Swartz, saying it would potentially criminalize ‘everyone who uses a computer in violation of computer use restrictions — which may well include everyone who uses a computer.’”
So we have prosecutors with extraordinary discretion as to who to target, and how aggressively to go after defendants and yet having no accountability for their actions. There’s something fundamentally wrong when prosecutors focus on easy, helpless targets so they gain easy wins to advance their careers.
On reflection, I believe in some prosecutorial discretion—the difference being that I regard brilliant, kind, selfless people like those profiled here as national treasures. They can help make our country scientifically and technologically great and help millions of people. And these courageous souls provide something our country sorely needs—a moral compass that can never be met by the military industrial complex and corporate greed. They remind us of what we have lost through the Patriot Act, the increasingly pervasive surveillance and prosecutorial excess and, most importantly, that absolute power corrupts absolutely.
Prosecutor as bully - Lawrence Lessig
Note: The section on Thomas Butler largely appeared in 2006 on my blog.