Here’s What Happened at Barrett Brown’s Gag Hearing
Sep 5 2013
Federal courthouse in Dallas, Texas, where Barrett Brown's hearing was held. Photo by Ryan Smith.
One month ago, Barrett Brown's legal counsel Charles Swift and Ahmed Ghappour filed for a continuance, insisting that in order to diligently examine the two terabytes of electronic evidence in the US government's case, more time was required. In response, the prosecution immediately filed in opposition. In addition to claiming that Brown was given adequate time to prepare his defense, a media gag order was requested. Specifically, the government asked the court to instruct Brown and his counsel to refrain from making “any statement to members of any television, radio, newspaper, magazine, internet (included, but not limited to, bloggers), or any other media organization about this case, other than matters of public record.”
I was inside the Dallas, Texas, courtroom yesterday when Judge Sam Lindsay ruled in favor of the prosecution's motion and a gag order immediately went into effect. In the eyes of the court, the prosecution had successfully argued that any extrajudicial statements made by the defendant, his attorneys, or the Government, to members of the press could unfairly impact Barrett Brown's opportunity for a fair trial.
The only witness that took the stand during the hearing was FBI Agent Robert Smith. His role was to provide the prosecution with details about the defendant's interactions with the press. Smith seemed like an odd choice for this topic given his involvement with other aspects of the case. In October 2012, Barrett Brown was indicted for threatening Agent Smith by name in a YouTube video. The title of the video is "Why I'm Going to Destroy FBI Agent Robert Smith." Barrett published the rant online after his mother, Karen McCutchin, was targeted and harassed by federal agents, including Agent Smith. For months, the FBI threatened to arrest and indict her on obstruction charges for allegedly hiding one of Barrett's laptops. Clearly angered by the FBI's actions, in the video Barrett says, "I know what’s legal; I know what’s been done to me... And if it’s legal when it’s done to me, it’s going to be legal when it’s done to FBI Agent Robert Smith—who is a criminal." Following the release of the video last year, Agent Smith and the FBI raided Barrett's home (again) and he's been locked up ever since. The charges related to the video were never brought up in the hearing. Instead, Smith testified that he had listened to audio recordings of the personal calls made by Barrett in jail to journalists, filmmakers, and supporters.
These conversations were introduced by US Attorney Candina Heath as exhibit 1, however, the government chose not to play any of the actual recordings during the proceedings. Instead, the government asked Agent Smith to provide the court with his assessment of these conversations on a call-by-call basis. To begin, the names of the people on the recordings were read aloud and then, one by one, some of the content from these conversations were picked apart by Smith.
Barrett Brown's contact list read like a who's who of investigative journalism. It included Guardian journalists Glenn Greenwald and Ed Pilkington, filmmaker Vivien Weisman, activist Gregg Housh, the late Michael Hastings, and VICE editor Patrick McGuire. In what became a routine, the prosecutor would ask Agent Smith if he recalled listening to a conversation between Barrett and a specific reporter. Smith would often shuffle through the papers in front of him and then recite certain details.
When discussing a VICE interview published earlier this year titled “We Spoke to Barrett Brown From Prison,” Agent Smith responded to simple questions like, “Did Barrett Brown call Patrick McGuire?” and “Was the interview in a Q & A format?” He remembered one of the questions asked if Barrett was the spokesman for Anonymous. But the actual question read: “A lot of people say that you’re the spokesperson for Anonymous. What do you say to that?” Barrett's response to the question wasn't even hinted at. The only criticism Smith offered was over phrasing in the article, which he suggested was “leading.” At no point in time did Agent Smith or the government's prosecutor provide any evidence that the interview had an effect on the public whatsoever. For this reporter, recognizing the government's logic was easy: If a media gag order should exist, then this article should not.
Agent Smith continued to be led by the prosecution from one story to the next, never fulfilling the requirement of a deduction based on evidence. Instead, a half-hour phone conversation between Barrett and a member of the press was reduced to a 60 second supposition.
In March, Glenn Greenwald published an article titled “The persecution of Barrett Brown – and how to fight it.” The author draws parallels between prosecutorial overreach in the case of Aaron Swartz and that of Barrett Brown. Keep in mind, Barrett is facing a 45-year sentence under one indictment that alleges he shared a link to illegally obtained, hacked information. In contrast, the individual actually found guilty of hacking the data is serving a sentence of ten years. As an attorney who litigated civil rights and constitutional cases for a decade, Greenwald is in some position to offer his opinion in this instance. Instead, the government prosecutor deferred to the opinion of Robert Smith, a law enforcement officer, who claimed that Greenwald was merely trying to “capitalize” on the events surrounding Aaron Swartz suicide.
Several attempts were also made to discredit the nature of supporter Kevin Gallagher's relationship with Barrett Brown. Without saying as much, the prosecution seemed to infer every action was a conspiracy. When Kevin offered Barrett advice about his public image, he was teaching him how to manipulate the press. When he arranged interviews for Barrett, he was trying to control public opinion. If Kevin recommended to a journalist that he read a previously published article, he was trying to control the message. When Barrett's mother was facing jail time and he asked for help publicizing her case, it was evidence of... something.
Barrett Brown's father (left) walking with attorney Charles Swift (right) and a member of defense team. Photo by Ryan Smith.
At one point in the testimony of Agent Smith, the government asked about a conversation that took place with filmmaker Vivien Weisman. The prosecutor inquired if any potential crimes were mentioned that Barrett Brown is not currently being charged with, such as drug use or an Anonymous hack other than the information stolen from Stratfor Global Intelligence. The defense was quick to object to the relevance of the question. The prosecutor responded that the conversation was prejudicial to Barrett's defense as it was being discussed with a member of the press. Defense counsel Charles Swift was quick to point out that in fact the government was responsible for disseminating this information—they had just entered the conversation into public record by discussing these potential crimes in front of the press.
The irony of this media gag hearing suddenly became apparent. The government spent over an hour listing the details of personal phone conversations that took place between Barrett and the press. They argued the content of these calls might lead to the prejudicial treatment of Barrett during his trial. Some of the details of these discussions had never before been published by the media. And the government just spent an hour reading them off in front of five members of the press, none of whom had ever received a personal phone call from Barrett Brown in prison.
The word “irony” actually came out of Judge Lindsay's mouth just before he asked the plaintiffs to approach the bench. They remained whispering there for 20 minutes. The only audible statement to those sitting in the front row of the courtroom gallery during that time from Judge Lindsay was, “I assume they're press. They're all writing.”
From that moment on, nearly all discussions between Barrett's defense team and the prosecution took place at the judge's bench. The acoustics of the room weren't always conducive to their need for privacy, however, and it wasn't long before observers understood that a gag order was the inevitable outcome. To Judge Lindsay's credit, he appeared eager to find an amenable solution between the two parties.
During a 20-minute recess the attorneys struggled, sometimes loudly, to find a compromise in the language of the court order that would restrict both side's access to the media. At this juncture it was clear that Barrett's attorney's had two demands they were unwilling to break over. They couldn't afford to lose the help of Gallagher, director of freebarrettbrown.org, who organizes fundraising activities for their defense; and they were adamant about protecting Barrett's right to publish his work in the press while incarcerated—even if he couldn't write about his trial or the charges against him.
Once both sides agreed to the language in the order, which was scribbled on a yellow steno notepad, it was accepted by the court and quickly transferred into print. Barrett's attorney signed it, the US attorney signed it, and the judge finalized it. Any hope of capturing a statement from either side about this trial is now gone.
The execution of the prosecutor's case was weak. For hours, the topic was communication between Barrett Brown and the media and yet, despite claiming to have evidence supporting the necessity of a gag order, in my opinion, none was presented. The first two pieces of evidence the government offered up at the start of the proceedings were a CD containing selected telephone calls made by Barrett and a DVD containing audio and video from various news agencies (full list of exhibits here). No video or audio was ever played. Instead, the government's argument rested on the opinions of one man; an FBI agent who harassed and targeted Barrett and his family.
The Freedom of the Press Foundation released the following statement to VICE:
“It's ironic and disturbing that in a case where press freedom is at stake, the defendant and his lawyers have been barred from talking to the press. The prosecution asked for a gag order in part because they said articles about Brown's case contained inaccuracies, but pointed to no articles to prove their point. Seemingly, the problem was the articles were too accurate, and therefore making the prosecution's case look bad. The fact remains, Brown is being prosecuted for conduct that is central to journalism, and the charges related to linking should be thrown out immediately.”
Kevin Gallagher, director of FreeBarrettBrown.org, also provided VICE with a statement:
“This is an outrage, and the judge's decision only increases the media profile of the case. It's the Streisand effect in action. The government has just done more for this case than I could do in a whole year. Now more people will be wondering why a journalist has been gagged in America. The government's case is unpopular and it's against the public interest to further punish Barrett Brown. They should drop the charges already. Moreover, I am dismayed that Barrett's First Amendment rights have been trampled on. This country is doomed."
The defense was granted a continuance and Barrett will remain in jail. Below are the details of his upcoming court appearances.
- On April 28, 2014, he faces charges of conspiracy to make publically available restricted personal information of an employee of the United States, retaliation against a federal law enforcement officer, and making internet threats.
- On May 19, 2014, he faces charges of trafficking in stolen authentication features, aggravated identity theft and access device fraud. As part of a separate indictment included in this trial, he faces two charges of obstruction: concealment of evidence and corruptly concealing evidence
Barrett Brown currently faces up to 105 years in prison.
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