I was planning this post yesterday, but other events intervened[1]. I woke up this morning to see that Corey had already written my post, but with the opposite conclusion. Corey’s 1905 analogy is a good one. Obama is not a “good father standing above the fray”, but the ruler who gives orders to Cossacks like Carmen M. Ortiz. The vindictive pursuit of Aaron Swartz is of a piece with the Obama Administration’s whole approach to the security state, from drone assassinations to the persecution of whistleblowers (Obama is worse even than Bush in some aspects of his civil liberties record).

But the Czar had choices[2], and so does Obama. Under current procedures, the White House must respond to a petition with 25 000 signatures, and the answer in this case must be “Yes” or “No’. So, this is one of the very few ways that Obama can be pushed to take an explicit stand one way or the another on an issue he prefers to address through leaks and ambiguities.

A pardon for Swartz, however qualified, would undercut the case for severe punishment (including, possibly, the death penalty) of Bradley Manning and others. It would amount to an acceptance that Swartz’ motivation in seeking the free distribution of information was a noble one, and that his offences should have been judged in that light. Perhaps some people would see it as exonerating the state, but I think more would see it as a signal of a new direction, and a precedent to be followed.

A refusal or evasion would serve the same function as the Czar’s orders to his Cossacks in 1905. Those who still believe Obama’s pledge to run the most transparent administration in history would see the reality, and might be moved to protest a bit more.

fn1. Among them, a stoush with a silly Oz politician
fn2. I don’t want to refight the whole “individual in history” debate, but Nicholas could have chosen to meet Father Gapon, could have promised reforms and could have delivered at least some of them. And, in the light of subsequent events, it would have been far better for him, his family, his class, and just about everyone else in Russia had he done so.

The State Should Not Pardon Aaron Swartz

by Corey Robin on January 15, 2013

There is a petition seeking the pardon of Aaron Swartz. It states, “President Obama has the power to issue a posthumous pardon of Mr. Swartz (even though he was never tried or convicted). Doing so will send a strong message about the improportionality with which he was prosecuted.” I understand the sentiment that underlies the petition. But I think it is wrong-headed and misplaced. It grants the state far too much.

It’s not simply a matter, as some have claimed to me on Twitter, that Swartz was never tried nor convicted of a crime; Ford, after all, pardoned Nixon before he was tried and convicted in the Senate could be charged, tried or convicted in a court of law. The real issue is that in the court of public opinion, Swartz is the innocent—no, the hero—and the state is the criminal. It is the state, in other words, and not Swartz’s supporters, that should be seeking a pardon—from Swartz’s family, from his supporters, and from the public at large. Though, I hasten to add, it should never receive one.

Asking the state to pardon Swartz doubly empowers and exonerates the state. It cedes to the state the power to declare who is righteous and who is wrong (and thereby obscures the fact that it is the state that is the wrongful actor in this case). The petitioning language to Obama only adds to this. The statement depicts Obama as somehow the good father who stands above the fray—much like how the Tsar was depicted in the petition of the Russian workers who marched with Father Gapon on the Winter Palace in 1905 and were summarily slaughtered.

Pardoning Swartz also would allow the government, effectively, to pardon itself. As my friend Michael Pollak pointed out to me, “Under our laws, Swartz was still innocent. Therein lies the crime of what the state did to him. This would remove it.” I would merely add that even if Swartz would have been (or had been) found guilty under the law, Michael’s stricture would still hold.

I want the death of Swartz, and the prosecution that helped produce it, to hang around the neck of the state for a very long time. If the state wishes to remove it, let it start by curbing its prosecutorial zeal, of which Swartz was sadly only one victim.