Creative-Commons Licensed Flickr Photo by pameladrew212

The federal judge presiding over the case of Jeremy Hammond, who faces charges for allegedly hacking into the private intelligence firm Stratfor, has denied a defense motion to recuse herself. Hammond’s defense argued that it appeared there was a conflict of interest since her husband had his email and major corporate clients of the law firm where he is employed disclosed in the Stratfor hack.

Hammond’s lawyers from the National Lawyers Guild (NLG) filed a recusal motion in December because the husband of Judge Loretta Preska of the US District Court for the Southern District of New York, Thomas Kavaler, was among the names of individuals who had their emails and passwords disclosed in the hack. Kavaler has continued to use the email address that was revealed at the law firm where he is a partner, Cahill, Gordon & Reindel, and where Preska once worked. The motion further alleged “more than twenty Cahill Gordon clients were victims of the Stratfor hack, including Merrill Lynch.

Apparently, this was not enough for the judge to be convinced that she had an obligation to recuse herself. Preska concluded in her decision:

Upon review of the record, Defendant has failed to carry his substantial burden of showing that a reasonable observer, with knowledge and understanding of the relevant facts, would “entertain significant doubt that justice would be done absent recusal,” Lauersen, 348 F.3d at 334. Finding otherwise on a record as suspect as here would only encourage supporters of this defendant—or other defendants—to allege unsubstantiated conflicts of interest against any of my brothers and sisters of the Court until no judge remained qualified to hear his case. Therefore, accepting Defendant’s invitation for recusal in this case would actually undercut the very policy Defendant prays this Court to sustain-namely, promoting public confidence in the Judiciary. Accordingly, Defendant’s motion to disqualify is DENIED. [emphasis added]

In other words, the judge concluded Hammond and his supporters would never be happy with the judge who replaced her so, even if there were significant allegations about a conflict of interest, it was not worth it to step aside because doing so would embolden Hammond and supporters to challenge the next judge assigned to hear the case and the next judge assigned to hear the case and so on and so forth.

Preska did not find there was evidence to substantiate allegations of an appearance of a conflict of interest. She found that the only damage to her husband had been that his public email had been disclosed. She cited an FBI review, which had concluded “Stratfor’s data did not contain any credit card information associated” with Kavaler. It contained one record of a subscription between March 18 and April of 2008, but Kavaler had no “recollection of that two-week subscription.”

The judge added, “According to Mr. Kavaler’s undisputed sworn affirmation, he never provided his credit card information or any other personal financial or identifying information to Stratfor.” Kavaler never “received any notification of the Stratfor class action or information that would lead him to believe that he was a member of the class or victim of the hack and has never received any benefit from the Stratfor Class Action Settlement Order.” Essentially, the judge did not find there was evidence to support that he had been a victim.

During the hearing on the motion this morning, according to NLG Executive Director Heidi Boghosian, Judge Preska said that any suggestion of a connection between her and the leaked emails of Stratfor clients who were also clients of the law firm Cahill Gordon, where Preska’s husband is a partner, was “rank hearsay.” Boghosian explained, “The standard for recusal is not partiality but the appearance of partiality. These rules are in place not to test the personal relationships of judges but to ensure that those relationships do not erode public trust in the judicial system.”

“This is not about how much Kavaler suffered but whether or not the integrity of the court will suffer if she continues to preside over this case in which she has a personal interest,” Boghosian added.

Michael Ratner of the Center for Constitutional Rights (CCR) is a lawyer who represents WikiLeaks. The media organization published emails from Stratfor, which Hammond allegedly obtained through hacking into Stratfor. Because Hammond is an alleged source of WikiLeaks, Ratner has been following the case closely.

Ratner told Firedoglake he had “trouble understanding how she’s sitting on the case.”

If I am a reasonable person on the street looking at this case and the trier of fact had a husband whose email was made public and the clients of his firm were made public—It would seem to me that looking at the judge I would say I am worried about this because, even if her husband did not feel any real harm from that or even if the clients did not feel like they lost money from it, the fact that I have on trial in front of me the person who allegedly did this, wouldn’t that give a reasonable person watching the perception that [the judge] might not be fair in this case?

At a press conference before the hearing this morning, Ratner condemned how the US government is “hitting people” like Hammond “with sledgehammers for telling the truth because they don’t want government and corporate corruption, hypocrisy and criminality” to be exposed. He suggested that Hammond’s case was part of a struggle over whether citizens are going to have a transparent government and corporations that are transparent or a society with government and corporations that continue to engage in “dirty tricks, hypocrisy and secrecy.”

His twin brother, Jason Hammond, was at the press conference this morning. He said he believes Hammond is being prosecuted in the way he is being prosecuted because he is a political activist. He said he expected the judge to recuse herself because her husband was affected by the charged act and played a song for his brother on his banjo.

As someone who has covered the case of Pfc. Bradley Manning extensively, this episode seems comparable to when Manning’s defense lawyer David Coombs filed a motion for the judge to recuse himself during the Article 32 hearing in December 2011. The investigative officer, Lt. Col. Paul Almanza, had worked for the Justice Department, which has an ongoing investigation into WikiLeaks. Almanza had approved all government witnesses requested for the hearing but only approved two of thirty-eight of the witnesses requested by the defense. He did not think Almanza could be fair and impartial, but Almanza decided a “reasonable person” would not conclude he was “biased.”

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Jeremy Hammond is currently being held at the Metropolitan Correctional Center in New York. He has been in prison and held without bail since his arrest in March 2012. According to Boghosian, he currently faces a one-year ban on family visits and a two-year ban on community visits. He also was placed in solitary confinement—a special housing unit (SHU)—because a urine sample tested positive for marijuana.

On the eve of his hearing, a letter he wrote in solitary confinement was published by Sparrow Media. Hammond faces charges under the Computer Fraud and Abuse Act (CFAA) just like Aaron Swartz, who was zealously prosecuted under the act and committed suicide in January. He used the letter to speak out in support of Swartz and others who have been pursued by the Justice Department:

The tragic death of internet freedom fighter Aaron Swartz reveals the government’s flawed “cyber security strategy” as well as its systematic corruption involving computer crime investigations, intellectual property law, and government/corporate transparency. In a society supposedly based on principles of democracy and due process, Aaron’s efforts to liberate the internet, including free distribution of JSTOR academic essays, access to public court records on PACER, stopping the passage of SOPA/PIPA, and developing the Creative Commons, make him a hero, not a criminal. It is not the “crimes” Aaron may have committed that made him a target of federal prosecution, but his ideas – elaborated in his “Guerrilla Open Access Manifesto” – that the government has found so dangerous. The United States Attorney’s aggressive prosecution, riddled with abuse and misconduct, is what led to the death of this hero. This sad and angering chapter should serve as a wake up call for all of us to acknowledge the danger inherent in our criminal justice system.

[...]

I am currently facing multiple computer hacking conspiracy charges due to my alleged involvement with Anonymous, LulzSec, and AntiSec, groups which have targeted and exposed corruption in government institutions and corporations such as Stratfor, The Arizona Department of Public Safety, and HB Gary Federal. My potential sentence is dramatically increased because the Patriot Act expanded the CFAA’s definition of “loss.” This allowed Stratfor to claim over 5 million dollars in damages, including the exorbitant cost of hiring outside credit protection agencies and “infosec” corporations, purchasing new servers, 1.6 million dollars in “lost potential revenue” for the time their website was down, and even the cost of a 1.3 million dollar settlement for a class action lawsuit filed against them. Coupled with use of “sophisticated means” and “affecting critical infrastructure” sentence enhancements, if convicted at trial I am facing a sentence of 30-years-to-life.

He stated, “Aaron is a hero to me because he did not wait for those in power to realize his vision and change their game, he sought to change the game himself, and he did so without fear of being labeled a criminal and imprisoned by a backwards system of justice.” And, “The government will never be forgiven. Aaron Swartz will never be forgotten.”

The full letter can be read here.