Jeremy Hammond loped into a federal courtroom in Lower Manhattan this morning with an awkward gait, his wrists handcuffed before him and his ankles shackled tightly together. Dressed in a navy blue prison jumpsuit, Hammond, the 27-year-old activist and hacker, is facing 30-years-to-life on charges related to the hacking of corporate spy agency Strategic Forecasting, or Stratfor. He has been held without bail in the Metropolitan Correction Center for more than a year, and has spent much of the past month in solitary confinement.
Hammond’s trial is still many months away, but he was in court today for a hearing on whether Chief District Judge Loretta Preska should recuse herself from hearing his case. Preska is married to Thomas Kavaler, a lawyer and former client of Stratfor, whose email and encrypted password were leaked in the Stratfor hack of which Hammond is accused. Kavaler is a partner at Cahill Gordon & Reindell LLP — where Preska was also a partner before becoming a judge — a firm that has represented more than 20 victims of the hack.
Heidi Boghosian, the executive director of the National Lawyers Guild, said before the hearing that Judge Preska’s connection to the case is such that she should recuse herself.
“As any first year law student knows,” Boghosian said. “a judge must withdraw from hearing any case in which his or her impartiality might reasonably be questioned. The New York Canons of Judicial Conduct are clear: judges must avoid not only impropriety, but also the appearance of impropriety.”
The test for the appearance of impropriety is whether a judge’s conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired. No reasonable person would say that a judge whose husband was the victim of the crime she is presiding over could do so with integrity or impartiality, much less competence. If Judge Preska stays on this case it goes against everything she is sworn to do as chief judge and degrades the integrity of the court.
But it is Judge Preska herself who must rule on the question of whether to recuse herself, and in today’s hearing she was clearly unpersuaded that these facts met the legal standard of a “proceeding in which [her] impartiality might reasonably be questioned.”
Unlike many of the other victims of the Stratfor hack, Preska noted, her husband did not have his credit-card information revealed. His email address that was included in the leak was already publicly available, and the password attached to it was encrypted and consequently useless. From that perspective, Preska argued, her husband suffered no injury in the Stratfor hack.
But even if that’s true, countered Elizabeth Fink, Hammond’s lawyer, there’s still the matter of all of the victims of the hack who are clients of her husband’s firm. Preska was unmoved, saying that if any of those companies were damaged by the hack, it hasn’t been proven, and noting that while Cahill Gordon may have relationships with some of these companies, the firm isn’t representing them in this matter or anything related to it.
“It is merely coincidence that they were subject to the same hack,” Preska said.
Sarah Kunstler, another of Hammond’s lawyers, argued that it doesn’t matter. “It’s enough that these clients pay Cahill Gordon a lot of money to protect their interests,” she told the judge.
“Mr. Hammond is being prosecuted for causing a harm,” Kunstler said. “We can’t say on one side of our mouths there’s no real harm here –”
Preska cut her off. “I think you might be overstating it in these cases,” she said.
Preska also made it clear that she won’t be swayed by popular opinion on the issue: “The standard is the views of the well-informed observer,” she said, “not the blogs with thousands of pages of incorrect information.”
Preska didn’t rule on the motion during the hearing, but issued a written ruling this afternoon rejecting it.
The hearing in Hammond’s case was the first since the death of Aaron Swartz, another internet activist facing decades of jail time from federal prosecutors before he killed himself last month. It also took place against the backdrop of the ongoing detention of Bradley Manning, who has been held without bail for nearly three years on suspicion that he passed state department cables on to Wikileaks. Meanwhile Julian Assange, the most prominent force behind Wikileaks, has spent the past eight months holed up in the Ecuadorian Embassy in London to avoid extradition to Sweden on rape charges. Assange’s lawyers have asked Swedish authorities to promise Assange would not be re-extradited to the United States, but the Swedes have refused to do so.
If it weren’t self-evident that the Obama administration is launching a full-court press on Wikileaks, its sources, and the larger world of internet transparency activists, yesterday Attorney General Eric Holder announced a new government anti-hacking initiative that mentions Wikileaks and Lulzsec (the Anonymous sub-group Hammond is alleged to have been a part of) by name.
“Political or social activists may use the tools of economic espionage against US companies, agencies, or other entities, with disgruntled insiders leaking information about corporate trade secrets or critical US technology to “hacktivist” groups like WikiLeaks,” the White House document warns.
As CNET’s Declan McCullough notes, “It’s an unanticipated inclusion in a strategy that was expected to be focused on state-sponsored intrusions — especially in the wake of disclosures this week about the Chinese military’s involvement in penetrating the networks of U.S.-headquartered companies — and signals that the government’s interest in WikiLeaks has not abated.”
Michael Ratner, the lawyer representing Wikileaks in the United States, characterized the new policy as an effort to make “getting truth-tellers more of a priority.”
“How much more of a priority do they want to make it?” Ratner asked before this morning’s hearing. “They already killed Aaron Swartz. Jeremy Hammond is facing 39 years to life. Bradley Manning, life imprisonment, and Julian Assange, if they ever get him out of that embassy and into a prison here, will face the same.”
Hammond will next be in court April 10 for a hearing on pre-trial motions. His defense says their ability to sort through the mountains of documents produced during discovery has been severely hampered by Hammond’s sparse and inconsistent access to the evidence while in prison.
Here’s Hammond’s lawyers’ memorandum arguing for Preska’s recusal:
UPDATE: Here’s the judge’s order denying the motion: