nettime's_court_reporter on Thu, 22 Jan 2015 23:28:39 +0100 (CET)

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<nettime> Barrett Brown's allocution / sentencing statement


Good afternoon, Your Honor.

The allocution I give today is going to be a bit different from
the sort that usually concludes a sentencing hearing, because
this is an unusual case touching upon unusual issues. It is also
a very public case, not only in the sense that it has been
followed closely by the public, but also in the sense that it has
implications for the public, and even in the sense that the
public has played a major role, because, of course, the great
majority of the funds for my legal defense was donated by the
public. And so now I have three duties that I must carry out. I
must express my regret, but I must also express my gratitude. And
I also have to take this opportunity to ensure that the public
understands what has been at stake in this case, and why it has
proceeded in the way that it has. Because, of course, the public
didn't simply pay for my defense through its donations, they also
paid for my prosecution through its tax dollars. And the public
has a right to know what it is paying for. And Your Honor has a
need to know what he is ruling on.

First I will speak of regret. Like nearly all federal defendants,
I hope to convince Your Honor that I sincerely regret some of the
things that I have done. I don't think anyone doubts that I
regret quite a bit about my life including some of the things
that brought me here today. Your Honor has the Acceptance of
Responsibility document that my counsel submitted to you. Every
word of it was sincere. The videos were idiotic, and although I
made them in a manic state brought on by sudden withdrawal from
Paxil and Suboxone, and while distraught over the threats to
prosecute my mother, that's still me in those YouTube clips
talking nonsense about how the FBI would never take me alive.
Likewise, I didn't have the right to hide my files from the FBI
during a lawful investigation, and I would've had a better chance
of protecting my contacts in foreign countries if I had pursued
the matter in the courts after the raid, rather than stupidly
trying to hide those laptops in the kitchen cabinet as my mother
and I did that morning. And with regard to the accessory after
the fact charge relating to my efforts to redact sensitive emails
after the Stratfor hack, I've explained to Your Honor that I do
not want to be a hypocrite. If I criticize the government for
breaking the law but then break the law myself in an effort to
reveal their wrongdoing, I should expect to be punished just as
I've called for the criminals at government-linked firms, like
HBGary and Palantir, to be punished. When we start fighting crime
by any means necessary, we become guilty of the same hypocrisy as
law enforcement agencies throughout history that break the rules
to get the villains, and so become villains themselves.

I'm going to say a few more words about my regrets in a moment,
but now I'm going to get to the unusual part of the allocution.
I'm going to make some criticisms of the manner in which the
government has pursued this case. Normally this sort of thing is
left to one's lawyers rather than the defendant, because to do
otherwise runs the risk of making the defendant seem combative
rather than contrite. But I think Your Honor can walk and chew
bubble gum at the same time. I think Your Honor understands that
one can regret the unjust things one has done, while also being
concerned about the unjust things that have been done to him. And
based on certain statements that Your Honor has made, as well as
one particular ruling, I have cause to believe that Your Honor
will understand and perhaps even sympathize with the unusual
responsibility I have which makes it necessary that I point out
some things very briefly.

I do so with respect to Your Honor. I also do it for selfish
reasons, because I want to make absolutely certain that Your
Honor is made aware that the picture the government has presented
to you is a false one. But it is also my duty to make this clear
as this case does not just affect me. Even aside from the several
First Amendment issues that have already been widely discussed as
a result of this case, there is also the matter of the dozens of
people around the world who have contributed to my distributed
think tank, Project PM, by writing for our public website, Incredibly, the government has declared these
contributors -- some of them journalists -- to be criminals and
participants in a criminal conspiracy. As such, the government
sought from this court a subpoena by which to obtain the
identities of all of our contributors. Your Honor denied that
motion and I am very grateful to Your Honor for having done so.
Unfortunately the government thereafter went around Your Honor
and sought to obtain these records by other means. So now the
dozens of people who have given their time and expertise to what
has been hailed by journalists and advocacy groups as a crucial
journalistic enterprise are now at risk of being indicted under
the same sort of spurious charges that I was facing not long ago,
when the government exposed me to decades of prison time for
copying and pasting a link to a publicly available file that
other journalists were also linking to without being prosecuted.
The fact that the government has still asked you to punish me for
that link is proof, if any more were needed, that those of us who
advocate against secrecy are to be pursued without regard for the
rule of law, or even common decency.

Your Honor, I understand that this is my sentencing hearing and
not an inquiry into the government's conduct. This is not the
place to go into the dozens of demonstrable errors and
contradictions to be found in the government's documentation and
the testimony by the government. But it would be hypocritical of
me to protest the government's conduct and not provide Your Honor
with an example. I will do so very briefly. At the September 13th
bond hearing, held in Judge Stickney's court the day after my
arrest, Special Agent Allen Lynn took the stand and claimed under
oath that in reviewing my laptops he had found discussions in
which I admit having engaged in, quote, "SWATting", unquote,
which he referred to as, quote, "violent activity", unquote. Your
Honor may not be familiar with the term SWATting; as Mr. Lynn
described it at the hearing it is, quote, "where they try to
place a false 911 call to the residence of an individual in order
to endanger that individual." He went on at elaborate length
about this, presenting it as a key reason why I should not
receive bond. Your Honor will have noted that this has never come
up again. This is because Mr. Lynn's claims were entirely untrue.
But that did not stop him from making that claim, any more than
it stopped him from claiming that I have lived in the Middle
East, a region I have never actually had the pleasure of

Your Honor, this is just one example from a single hearing. But
if Your Honor can extrapolate from that, Your Honor can probably
get a sense of how much value can be placed on the rest of the
government's testimony in this case. Likewise, Your Honor can
probably understand the concerns I have about what my
contributors might be subjected to by the government if this sort
of behavior proves effective today. Naturally I hope Your Honor
will keep this in mind, and I hope that other judges in this
district will as well, because, again, there remains great
concern that my associates will be the next to be indicted.

I've tried to protect my contributors, Your Honor, and I've also
tried to protect the public's right to link to source materials
without being subject to misuse of the statutes. Last year, when
the government offered me a plea bargain whereby I would plead to
just one of the eleven fraud charges related to the linking, and
told me it was final, I turned it down. To have accepted that
plea, with a two-year sentence, would have been convenient -- Your
Honor will note that I actually did eventually plead to an
accessory charge carrying potentially more prison time -- but it
would have been wrong. Even aside from the obvious fact that I
did not commit fraud, and thus couldn't sign to any such thing,
to do so would have also constituted a dangerous precedent, and
it would have endangered my colleagues, each of whom could now
have been depicted as a former associate of a convicted
fraudster. And it would have given the government, and
particularly the FBI, one more tool by which to persecute
journalists and activists whose views they find to be dangerous
or undesirable.

Journalists are especially vulnerable right now, Your Honor, and
they become more so when the FBI feels comfortable making false
claims about me. And in response to our motion to dismiss the
charges of obstruction of justice based on the hiding of my
laptops, the government claimed that those laptops contained
evidence of a plot I orchestrated to attack the Kingdom of
Bahrain on the orders of Amber Lyon. Your Honor, Amber Lyon is a
journalist and former CNN reporter, who I do know and respect,
but I can assure Your Honor that I am not in the habit of
attacking Gulf state monarchies on her behalf. But I think it's
unjust of them to use this court to throw out that sort of claim
about Miss Lyon in a public filing as they did if they're not
prepared to back it up. And they're not prepared to back it up.
But that won't stop the Kingdom of Bahrain from repeating this
groundless assertion and perhaps even using it to keep Miss Lyon
out of the country. Because she has indeed reported on the
Bahraini monarchy's violent crackdowns on pro-democracy protests
in that country, and she has done so from that country. And if
she ever returns to that country to continue that important work,
she'll now be subject to arrest on the grounds that the United
States Department of Justice itself has explicitly accused her of
orchestrating an attack on that country's government.

Your Honor, this is extraordinary. Miss Lyon isn't the only
journalist that's been made legally less secure by this
prosecution. Every journalist in the United States is put at risk
by the novel, and sometimes even radical, claims that the
government has introduced in the course of the sentencing
process. The government asserts that I am not a journalist and
thus unable to claim the First Amendment protections guaranteed
to those engaged in information-gathering activities. Your Honor,
I've been employed as a journalist for much of my adult life,
I've written for dozens of magazines and newspapers, and I'm the
author of two published and critically-acclaimed books of
expository non-fiction. Your Honor has received letters from
editors who have published my journalistic work, as well as from
award-winning journalists such as Glenn Greenwald, who note that
they have used that work in their own articles. If I am not a
journalist, then there are many, many people out there who are
also not journalists, without being aware of it, and who are thus
as much at risk as I am.

Your Honor, it would be one thing if the government were putting
forth some sort of standard by which journalists could be
defined. They have not put forth such a standard. Their assertion
rests on the fact that despite having referred to myself as a
journalist hundreds of times, I at one point rejected that term,
much in the same way that someone running for office might reject
the term "politician." Now, if the government is introducing a
new standard whereby anyone who once denies being a particular
thing is no longer that thing in any legal sense, that would be
at least a firm and knowable criteria. But that's not what the
government is doing in this case. Consider, for instance, that I
have denied being a spokesperson for Anonymous hundreds of times,
both in public and private, ever since the press began calling me
that in the beginning of 2011. So on a couple of occasions when I
contacted executives of contracting firms like Booz Allen
Hamilton in the wake of revelations that they'd been spying on my
associates and I, for reasons that we were naturally rather
anxious to determine, I did indeed pretend to be such an actual
official spokesman for Anonymous, because I wanted to encourage
these people to talk to me. Which they did.

Of course, I have explained this many, many times, and the
government itself knows this, even if they've since claimed
otherwise. In the September 13th criminal complaint filed against
me, the FBI itself acknowledges that I do not claim any official
role within Anonymous. Likewise, in last month's hearing, the
prosecutor accidentally slipped and referred to me as a
journalist, even after having previously found it necessary to
deny me that title. But, there you have it. Deny being a
spokesperson for Anonymous hundreds of times, and you're still a
spokesperson for Anonymous. Deny being a journalist once or
twice, and you're not a journalist. What conclusion can one draw
from this sort of reasoning other than that you are whatever the
FBI finds it convenient for you to be at any given moment. This
is not the rule of law, Your Honor, it is the rule of Law
Enforcement, and it is very dangerous.

Your Honor, I am asking you to give me a time-served sentence of
thirty months today because to do otherwise will have the effect
of rewarding this sort of reckless conduct on the part of the
government. I am also asking for that particular sentence
because, as my lawyer Marlo Cadeddu, an acknowledged expert on
the guidelines, has pointed out, that's what the actual facts of
the case would seem to warrant. And the public, to the extent
that it has made its voice heard through letters and donations
and even op-eds, also believes that the circumstances of this
case warrant that I be released today. I would even argue that
the government itself believes that the facts warrant my release
today, because look at all the lies they decided they would have
to tell to keep me in prison.

I thank you for your indulgence, Your Honor, and I want to
conclude by thanking everyone who supported me over the last few
years. I need to single out one person in particular, Kevin
Gallagher, who contributed to my Project PM group, who stepped up
immediately after my arrest to build up a citizens' initiative by
which to raise money for my defense, and to spread the word about
what was at stake in this case. For the two and a half years of
my incarceration, Kevin has literally spent the bulk of his free
time in working to give me my life back. He is one of the
extraordinary people who have given of themselves to make
possible this great and beautiful movement of ours. A movement to
protect activists and journalists from secretive and extra-legal
retaliation by powerful corporate actors with ties to the state.
Your Honor, Kevin Gallagher is not a relative of mine, or a
childhood friend. This is only the third time I've been in the
same room with him. Nonetheless, he has dedicated two years of
his life to ensure that I had the best possible lawyers on this
case, and to ensure that the press understood what was at stake
here. Your Honor, he set up something on whereby I
could ask for books on a particular subject and supporters could
buy them and have them sent to me. And he spoke to my mother
several times a week. During that early period when I was facing
over a hundred years worth of charges, and it wasn't clear
whether or not I would be coming home, he would reassure her.

A few weeks ago, he got a job at Freedom of The Press Foundation,
one of the world's most justifiably respected advocacy
organizations. And, according to the government, he is also a
member of a criminal organization, because, like dozens of
journalists and activists across the world, he has been a
contributor to Project PM, and the government has declared
Project PM to be a criminal enterprise. I think that the
government is wrong about Kevin, Your Honor, but that is not why
I've brought him up. And although I am very glad for the
opportunity to express my gratitude to him in a public setting,
there are some gifts for which conventional gratitude is an
insufficient payment. One can only respond to such gifts by
working to become the sort of person that actually deserves to
receive them. A thank you will not suffice, and so I am not
bringing him up here merely to thank him. Instead, I am using him
in my defense. Your Honor, this very noble person, this truly
exemplary citizen of the republic who takes his citizenship
seriously rather than taking it for granted, knows pretty much
everything there is to know about me -- my life, my past, my work,
the things I've done and the things I've left undone, to the
things I should not have done to begin with -- and he has given
himself over to the cause of freeing me today. He is the exact
sort of person I tried to recruit for the crucial work we do at
Project PM. I am so proud to have someone like him doing so much
for me.

Your Honor, the last thing I will say in my own defense is that
so many people like Kevin Gallagher have worked so hard on my
behalf. And having now said all those things that I felt the need
to say, I happily accept Your Honor's decision.

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