Yesterday at the Earle Cabell Federal Building, in the fine city of Dallas, Texas, a fellow named Andrew Blake wore a curious t-shirt to Judge Sam Lindsay’s court for a hearing to determine how much longer Barrett Brown ought to stay in prison. Blake got his shirt while covering the trial of Chelsea Manning. It was black, with one word, in white, printed across its chest: “truth.” Before things got started yesterday, a federal marshal approached Blake and told him he had to cover up the word. In case you missed that: he had to cover up “truth.” In a courtroom. That’s how it went for much of yesterday, like a script for a bad movie that any reasonable studio executive would read and reject because no way could the plot transpire in real life.
No doubt you’ve already read the report I filed on the first part of this sentencing hearing. I apologize again for its length. Yesterday’s hearing ended a little before 2 o’clock, a full three hours shorter than the first go-round. If you think that a shorter day in court and my lingering remorse for having written way too many words back in December will here produce a shorter post, then you are mistaken. With my deepest regrets:
You’ll want to know about the marshals who maintain order in the court and how they dressed. I think we could do a fashion spread of federal marshals in D Magazine. They are a natty bunch. Yesterday one of the marshals wore a shawl-collared cable-knit sweater. It said, “Yes, I’m a federal marshal, but I’m also approachable. I can stay home and read a book by the fire just as easily as I can paint the town red.” Totally Fifth District sexy.
Ladar Levison, the former email provider for Edward Snowden, turned up to observe the proceedings. During one recess, he and I were talking in a hallway outside the courtroom. Marlo Cadeddu, who led Barrett’s defense yesterday, wore a smart red blazer over a black dress. As she passed by, she looked at me and Ladar and said, “I wore red today just for you.” (In my earlier report, I’d mentioned her red skirt suit.) Ladar looked at me and deadpanned: “Was she talking to you?” I hope this joke translates; it was brilliant.
I wore tan jeans and a blue Merino sweater over a t-shirt.
Federal sentencing guidelines are complicated. If you never played Dungeons & Dragons and then listened to a bunch of geeks play Dungeons & Dragons, that’s what it sounds like when a federal judge runs through multiple counts, adding and subtracting offense levels to determine how much of someone’s liberty he is about to take. Was the crime committed via “sophisticated means”? Add two levels. Is the defendant penitent? Subtract three levels. Is he a half-orc? Plus two for strength, but minus two for intelligence and charisma. At one point, as Judge Lindsay was adding it all up, I expected him to roll a 20-sided die.
But the math happened after the government and defense had had the opportunity to delight us with some truly bananas back-and-forthing. Or, as Judge Lindsay put it: “There is quite a bit of to and fro between the government and the defense.” By way of explaining how he planned to cut through all the to-ing and fro-ing, Judge Lindsay later said: “I have to look in the water and see if there are any fish.”
Let me focus on just one fish in the pond. To recap: there was a hack of a government contractor. Barrett, according to sworn testimony of a respected journalist named Quinn Norton, had practically nothing to do with this hack. But the hack produced a cache of material, some of which was credit card info, that was posted publicly on Pastebin. A link to that material was shared in a public IRC (internet relay chat) channel. Barrett then shared that same link in another channel. The government argued yesterday that Barrett, by reposting a link, was guilty of trafficking in stolen credit cards. Trafficking. That’s the fish I want to look at.
Cadeddu told the court yesterday that the government’s trafficking argument relied on a child pornography case that wasn’t analogous to Barrett’s case. In the porn case, someone gathered images and distributed them. The defense argued that, if you want to keep with the porn analogy, Barrett just said, “There’s porn over there.” (Except, really, he didn’t even know that “over there” contained porn; he reposted that link before he knew what it led to.) Judge Lindsay asked the government (in the form of prosecutor Candina Heath) if it had a precedent-setting case that more resembled Barrett’s. Less porny, more data-linky (my words). Heath did not have such a citation. There was hope.
Heath tried a different tack. Forget porn. How about drugs? She said that Barrett’s posting a link to stolen credit cards was just like what drug traffickers do, move drugs from one place to another.
At this point, Barrett was slouching in his chair, leaning generally to his left, sometimes using his hand to cup his right ear because his hearing isn’t good. Having been transferred to the Kaufman County clink, he was wearing different prison togs than on his last court appearance. No more DayGlo orange. In Kaufman, they prefer radioactive mustard yellow. Imagine the ugliest color in the world. You, too, would have trouble sitting up straight if you had to wear it.
Anyway, Cadeddu pounced on the drug trafficking analogy. She told the court that Barrett didn’t move anything. All he did was point to something, something that was already publicly available. And here is where Heath issued a phrase that I’d never before heard. She said that Barrett “took possession of accessibility” to the stolen credit cards. Let that phrase dance around in your head for a bit. Took possession of accessibility. It is a koan. I have been meditating on this phrase since yesterday and feel that I might achieve Zen enlightenment by as early as Sunday evening. So I got that going for me, which is nice.
Heath said the cache of stolen info was like a drug house, and it was as if Barrett had given people a key to that drug house. Cadeddu jumped from her seat to point out to the court that in Heath’s analogy, the drug house was a private location, whereas Barrett had provided a key to a public location.
Back and forth they went. To and fro. I must tell you that, try as I might, I couldn’t spot the fish. Not when it came to trafficking.
There were several such considerations about the three crimes to which Barrett had pled guilty. This single consideration, the question of trafficking, would add roughly a year of imprisonment to the upper end of what the sentencing guidelines would indicate. Judge Lindsay sided with the government. Rather than an upper limit of 51 months in prison, the guidelines now suggested 63 months.
Want to know the real kicker? The government knew it couldn’t convince a jury that Barrett had trafficked in stolen credit cards. It had dropped that charge (and a bunch of others) back in March. But that didn’t mean that Judge Lindsay couldn’t base his sentence on the dropped charge. Under federal guidelines, a judge can actually base a sentence on a charge for which a defendant has been acquitted. It’s true. (Cadeddu was kind enough to explain to me how federal sentencing guidelines work in general and how, more specifically, they worked on Barrett. If you’d like to learn more, read the first footnote at the bottom of this post.)
So things were not going well for Barrett before they started going disastrously. At about 11:30, Judge Lindsay asked if the defense had anything else it wished to add, and Charles Swift, the other of Barrett’s two defense attorneys, said that he would like to have someone make a few remarks on Barrett’s behalf, calling to the stand “Jim Rogers from the Dallas …”
As he trailed off, unsure of both my employer and my name, I worked to maintain control of my bowels. Bear in mind that at one point yesterday, Kevin Gallagher, the guy who has run Barrett’s legal defense fund, was removed from the courtroom briefly because a marshal didn’t like his facial expressions. Seriously. Cadeddu told me later that she’d never seen something like that happen. And I’ve already mentioned the “truth” t-shirt. You can’t imagine a more intimidating setting to deliver an extemporaneous speech on the First Amendment and the journalistic merits of your yellow-clad friend, whose very liberty could be compromised should you foul your drawers. Yes, in mid-December, at the first part of this hearing, I’d been asked by Barrett’s defense team if I’d be willing to take the stand and deliver remarks about Barrett’s bona fides as a journalist. Sure, sure. But back in December, after both the defense and prosecution had called their witnesses and left me out of it, I figured I wasn’t needed.
Then yesterday happened. No warning. No witness stand for a friendly Q&A. Swift called me to a lectern, which I approached feeling as if I myself were about to get sentenced. I stated my name for the record, tasted the metallic flavor that indicates your endocrine system has flooded your body with adrenaline, and left my body. Hovering up around the oil paintings of dead judges that hang in Judge Lindsay’s courtroom, I heard myself say something about how I thought Barrett was a legit journalist, how we’ve paid him to write for us, how I’d like to hire him once he gets out of prison. Either thirty seconds or an hour into my speech — time for me stopped, I traveled to Mars and back, civilizations rose and fell, I played lead guitar for Aerosmith, that baby from 2001: A Space Odyssey beat me in Connect Four, possession of accessibility was taken — I realized that while my bowels were holding, I was suffering from acute shake voice. So I abruptly stopped talking and crawled back to my seat on my hands and knees.
What I’m saying is this: I did not perform well. Several news reports mention that I was the sole witness to speak in Barrett’s defense yesterday. Kinda sounds like I crushed it. I respect you too much to leave you with that false impression.
After me, Swift took the lectern. He talked about Barrett’s compromised mental state when he posted the YouTube threat against the federal agent. He blamed “the unique world of the internet,” where people say things that they’d never say to someone’s face. He talked about trafficking. He brought up “deflategate” in a way that seemed to entertain Judge Lindsay but which confused me. He said a few words about the First Amendment.
In response, Judge Lindsay said, “What took place is not going to chill any First Amendment expression by journalists. Because it was more than mere posting.” He repeatedly said that he believed Barrett was more involved with the hack than Barrett wanted him to believe.
Then it came time for Barrett to make his allocution. He shuffled up to the lectern and, with a marshal standing behind him, delivered a 3,000-word speech, the full text of which I have included in a second footnote. If you don’t want to read the entire thing, I’ll sum up for you. In so many words Barrett said, “I’m really sorry about the stupid stuff I did. But are you kidding me? The FBI tells lies. And the federal government gets to decide who is and who is not a journalist based on nothing more than what is convenient for keeping someone locked up.”
I will note that the version of his allocution below is slightly different than versions you will see elsewhere online. I was able to take a copy of it to court and read along as Barrett spoke. The version of the allocution that was released to some journalists before the hearing included a joke about the judge being able to walk and chew gum at the same time. Barrett didn’t make that joke in court. There were a few other minor differences in language; I made those changes to the text. But there were also some major additions that I was not able to take down because I am a slow writer. I’ve indicated in uppercase where spoken material is missing from the text. Perhaps we can fill in those omissions later.
Heath followed Barrett. She didn’t speak long. She said that Barrett had “very little respect for the law, as can be seen from his allocution.” She pointed out that, contrary to what Swift had said, Barrett’s behavior in question was not out of the ordinary for him. She said, “Poor judgment has been a problem for him his entire adult life.” I think Barrett himself might agree with that — though he’d do it with a smile and not at all in a way that would suggest he deserves 63 months in prison.
That’s what Judge Lindsay gave him. Five years, three months, and $890,000 in restitution for damage done to the hacked companies and the fraudulent charges made on the credit cards of 109 victims. Standing at that lectern, flanked by his two lawyers — red, yellow, dark blue — Barrett heard his sentence without flinching, though not without one last barb. When Judge Lindsay paused to flip through some papers, Barrett blurted out, “Procedural question, Your Honor? That copy of the Declaration of Independence that they took from me as evidence? Do I get that back?” Judge Lindsay stared daggers at him in response.
After the court was adjourned, and as Barrett was being led out in shackles, Alexa O’Brien shouted, “Stay strong, Barrett!” Then: “Congratulations, DOJ, for imprisoning our brightest young minds.” Judge Lindsay, already on his feet, turned and said something about contempt. O’Brien reminded him that court had been adjourned, and she had the right to speak her mind. He threatened to gavel the court back into session. At which point the marshals began to shoo everyone out. Someone — I couldn’t tell who — shouted, “That sucked!”
I was later asked by a filmmaker who is working on a documentary about Barrett if I saw anything in this case to be hopeful about. I told her I did see something to be hopeful about. It’s the statement that Barrett released after his sentencing. Cadeddu told me she had no foreknowledge of the statement and didn’t approve it. Typical Barrett. I’ll give him the final word:
The U.S. government decided today that because I did such a good job investigating the cyber-industrial complex, they’re now going to send me to investigate the prison-industrial complex. For the next 35 months, I’ll be provided with free food, clothes, and housing as I seek to expose wrongdoing by Bureau of Prisons officials and staff and otherwise report on news and culture in the world’s greatest prison system. I want to thank the Department of Justice for having put so much time and energy into advocating on my behalf; rather than holding a grudge against me for the two years of work I put into in bringing attention to a DOJ-linked campaign to harass and discredit journalists like Glenn Greenwald, the agency instead labored tirelessly to ensure that I received this very prestigious assignment.
Wish me luck!
FOOTNOTE ONE: Here’s an email from Marlo Cadeddu in which she rather elegantly explains federal sentencing guidelines and how they were applied in Barrett’s case when it came to trafficking:
Barrett pled guilty to three counts — internet threats, accessory after the fact to the unauthorized access to a protected computer and obstruction of a search warrant. The accessory after the fact conduct to which Barrett pled included offering to communicate with Stratfor for the purpose of redacting certain emails in order to conceal Hammond’s identity. There were a number of counts charging trafficking in stolen credit cards and possession of stolen credit cards with which he was originally charged, as you know. Those eleven counts were dismissed last year by the government after the defense filed a motion to dismiss saying that those counts failed to state an offense.
The reason we couldn’t just say “those charges were dropped” yesterday is because under federal law, a judge is technically allowed to sentence a defendant based on conduct that was uncharged, charged and dismissed or even charged and acquitted! That’s because the standard of proof at trial is beyond a reasonable doubt while the standard of proof at sentencing is by a preponderance, i.e. more likely than not. Thus, a jury could find you not guilty of certain conduct because the government didn’t prove beyond a reasonable doubt that you actually did what was charged, even if the jury believed that you probably did it. It’s the same with dismissed conduct. The government can dismiss charges if it wishes, but if the court thinks you probably did it, you can still be sentenced based on those charges. That is a hard concept for non-lawyers to understand because it seems patently unfair. Essentially, the government loses but then gets to punish you anyway. That’s what happened here, essentially. The government dismissed the trafficking charges and then successfully argued to the court that Barrett’s sentence should be enhanced for trafficking for having linked to the Stratfor data.
So procedurally, here’s how it worked yesterday. As you are aware, courts must consider the sentencing guideline range calculated under the United States Sentencing Guidelines. The Guidelines book essentially lays out formulae for calculating two numbers — one is the offense level, which is supposed to correspond to the seriousness of the crime, and the other is the criminal history of the defendant based upon his prior convictions and sentences. Then the court uses those numbers with the chart you reference in your email to come up with the applicable sentencing range in months.
Up until 2006, the guideline range was binding. That is, the court could not sentence outside of the applicable range as calculated under the Sentencing Guidelines except under very limited circumstances. In 2006 in a case called Booker, the Supreme Court decided that mandatory application of the Guidelines violated a defendant’s right to a jury trial and the Court held that the Guidelines should thus be considered advisory only. Since 2006, judges have been free to sentence outside the applicable guideline range, bound only by the statutory minimum and maximum for the offense in question. As a practical matter though, in the vast majority of cases, judges still sentence within the applicable guideline range, so the calculation of the guideline range is often the big fight in any case, as it was here.
You heard the government argue that all three of the counts should be “grouped” under the Guidelines and then all possible enhancements added to the grouped counts. Determining the guideline range that way would have meant an applicable sentencing range of 151 to 188 months for Barrett, although his exposure would have been capped at the statutory maximum of 102 months (102 months is the statutory maximum total punishment allowable for all three crimes to which he pled, added together). In other words, the most the judge could have sentenced him to was 102 months even though the guidelines range was higher.
We argued and the court agreed that the proper procedure was to calculate the offense level for each count separately, then figure out which count had the highest offense level associated with it and only then apply the grouping rules. The grouping rules provide that when counts are considered separately, as was the case here, the court adds a certain number of additional points to the count with the highest offense level depending on how many offense level points the offense levels for the other counts are below the primary count offense level. In that way, all counts are taken into account in determining one single offense level and one applicable guideline range.
In Barrett’s case, the highest offense level was associated with the accessory after the fact to the unauthorized access to a protected computer count. Factors considered in determining this offense level for that offense included the loss to the victims (a figure agreed upon in the plea agreement which was between $400,000 and $1,000,000), use of sophisticated means, unauthorized distribution of personal information, 50 or more victims and an enhancement for trafficking in stolen credit card data. The court determined the offense level for that count and then applied the grouping rules. After doing so, the court determined that the applicable offense level for all three counts after grouping was 23.
As you will recall, the government argued that Barrett trafficked in stolen credit cards when he reposted a link to stolen data that was already in the public domain. We argued that the posting of a link could not constitute trafficking — that Barrett didn’t share the actual data but only posted a link to a public internet location where it could be accessed. Moreover, the link was posted in the #Anonops IRC channel and then Barrett immediately reposted the link to the #Projectpm channel and did not have time to open the link himself to see what data could be accessed using the link. The court overruled our objection and added two points to the offense level for trafficking. Thus, the overall guideline range in this case would have been 21 and not 23 in the absence of that enhancement. For an offense level of 21 and criminal history category of II, the applicable guideline range for Barrett would have been 41-51 months instead of 51-63 months. [Ed: See what I mean? Dungeons & Dragons.]
I hope this helps explain what happened. Bottom line, the two point enhancement for trafficking made a difference both in the offense level for the accessory after the fact count and in determining the final total offense level after grouping as well as the applicable guideline range.
FOOTNOTE TWO: Barrett Brown’s allocution.
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 the full implications what he is ruling on today.
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 statement 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, as well as other revelations made in the press, 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, because to do otherwise runs the risk of making the defendant seem combative rather than contrite. 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. 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, echelon2.org. Quite incredibly, the government has declared these contributors — some of them journalists — to be criminals, and participants in a criminal conspiracy. As such, the government has sought from this court a subpoena by which to obtain the identities of all of our contributors. Your Honor denied that motion last year 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. [THREE OR FOUR SENTENCES OF MISSING MATERIAL.] 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 here. I will do so very briefly. At the September 13th bond hearing, held in Magistrate Judge Stickney’s court the day after my arrest, Special Agent Allyn Lynd 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 conduct”, unquote. Your Honor may not be familiar with the term SWATting; as Mr. Lynd 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. Lynd’s claims were entirely untrue. But that did not stop him from making them, 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 visiting.
Your Honor, this is just one example from a single hearing. I could have picked others. 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 for me. Your Honor will note that I actually did eventually plea 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 on 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, just as they did in the ’60s and ’70s.
Journalists are especially vulnerable right now, Your Honor, and they become more so when the FBI feels comfortable making false claims about them. 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. This is really extraordinary. Miss Lyon isn’t the only journalist that’s been made less secure legally 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. [FOUR OR FIVE SENTENCES OF MISSING MATERIAL.] 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, Your Honor, 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 period 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, then 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 me for reasons that we were naturally rather anxious to ascertain, 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 time. This is not the “rule of law”, Your Honor, it is the “rule of law enforcement”, and it is very, 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 behavior on the part of the government. [MISSING MATERIAL, LITANY OF THINGS HE HAS DONE WRONG, INCLUDING DRUG ABUSE. SHOWS CONTRITION.] 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 in major newspapers, 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, and 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, this movement to protect activists and journalists from secretive and extra-legal retaliation by powerful corporate actors with ties to the state and the FBI. 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 Amazon.com 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 offer support and reassurance to her, an effort that I will never be able to repay. He knows how much I regret the pain and heartbreak that my family has suffered throughout this ordeal.
A few weeks ago, Kevin got a job at the 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, from 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 respectfully submit to Your Honor’s decision.