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Firing Swartz Prosecutors (TWO hackers have committed suicide on their watch): Why It's Not Easy

Yesterday, it became public that Stephen Heyman oversaw TWO excessive prosecutions of hacker-defendants who committed suicide, Aaron Swartz and Jonathan James.

There are multiple petitions circulating on the Internet to remove U.S. Attorney Carmen Ortiz and fire Assistant U.S. Attorney Stephen Heymann. While I agree with the sentiment behind these petitions, and have signed them, it is unlikely that they will work, especially on Heymann who enjoys immunity and the protection of civil service laws. I think our energies might be better directed at demanding serious Congressional oversight and accounting for the selective, vindictive and overzealous prosecutions of hackers and whistleblowers.

U.S. Attorneys are political appointees who serve at the pleasure of the President. They are appointed by the President and confirmed by the Senate, so it will be easier to get rid of Ortiz.  Moreover, the petition for her ouster has more than 25,000 signatures--the threshold required to warrant a response from the White House. Perhaps most importantly, getting rid of her is also timely because when a President is re-elected (or a new President comes into office), it is their prerogative to re-consider the current U.S. attorneys (unlike the U.S. Attorney Massacre in 2007, where years after Bush's reelection in 2004, a number of the U.S. Attorneys who stayed on were summarily forced out in one fell swoop under very dubious circumstances and no evidence of malfeasance.)

Heymann is another issue. Assistant U.S. Attorneys (AUSAs) can't be ousted for political reasons.  They are insulate by civil service protections. Nor can he be sued for damages because of any constitutional tort violations because he has immunity, and while his conduct has been reckless, there is no violation of a clearly-established law that I can find.

What might be more realistic is for citizens to demand that the Senate Judiciary Committee exercise meaningful oversight over the out-of-control Justice Department, which has waged an unprecedented, unaccountable, brutal war on whistleblowers and hackers, and to create something akin to the Church Committee to investigate the improper monitoring and targeting of hackers, whistleblowers, Occupy participants, journalists, and a numerous other groups of non-violent "offenders" who've done nothing to harm anyone or the country, and have been acting purely in the public interest.