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Lawyers counter gov’t motion to dismiss lawsuit over illegal surveillance of donors

At the end of last week, the distinguished attorneys representing us in our case against USAA Heath and FBI Special Agent Smith filed our response to their motion(s) to dismiss the complaint.

For those unfamiliar with the background, shortly after Barrett Brown was arrested back in September 2012, we established a fund-raising campaign on the website WePay.com by which we solicited donations that were specifically earmarked to help him obtain quality private legal representation, rather than having to rely upon the court’s appointment of a federal public defender.

Around the time of Brown’s sentencing in January 2015 we were shocked to learn a subpoena had been sent to WePay. This had already happened earlier, in January 2013, without our knowledge. As it turned out, the subpoena was deployed beyond the usual channels, and demanded not only information on how much the account held, but also details about everyone who had donated to the fund.

"any and all records and information"As set forth in the lawsuit we filed earlier this year, this unusual move to identity contributors to a political cause that both Heath and Smith virulently opposed happens to be unconstitutional; courts have established very clear First Amendment rights to engage in political speech via financial donations to causes while remaining anonymous. And it was particularly disturbing in light of the broader pattern that the two went on to engage in throughout Brown’s case, during which they argued for a gag order on Brown due in part to an article he’d written for The Guardian that was, as Heath put it in open court, “critical of the government.”

"The tone of the article was problematic."They also sought and obtained the identities of everyone who contributed to Brown’s crowd-sourced website, Echelon2.org (now wiki.project-pm.org), despite never alleging any crime that might have been committed in the course of this journalistic effort, and also despite continually denying that Brown’s prosecution – which began with secret search warrants weeks after his involvement in exposing a Department of Justice-linked criminal conspiracy by federal intelligence contractors – had anything to do with his journalism and activism efforts, but was instead centered entirely on his supposed involvement in credit card fraud (those charges were later dropped). Their position was weakened further by the fact that the original search warrant listed Echelon2.org as well as two firms that had been involved in the DOJ scheme, popularly known as Team Themis, whereas the company they later accused him of defrauding, Stratfor, was not even mentioned.

"Records relating to echelon2.org"In this context, Heath, Smith, and the high-end federal lawyers who are running their case out of D.C. have struggled to explain the purpose of seeking out everything they could on Brown’s legal donors – especially since their stated intent was merely to assess how much money Brown had received for the purpose of obtaining private counsel, in turn so that they could ask the court to seize it to offset the cost of the public defender he’d never asked for. This, they claim, was an effort to save the government money – even though seizing the money that individuals had donated to acquire Brown a lawyer would obviously prevent him from doing that and force him to rely on the public defender at vast cost to the state itself.

Another argument by Heath — that this money had not been listed on Brown’s financial disclosure form shortly after his arrest, and thus it was necessary to subpoena WePay to determine how much money had been raised on his behalf – has likewise come under fire from our legal team. Free Barrett Brown was established independently as a private entity, and was not a party to the case, so its assets were not subject to reporting, and the court should have no power to direct such funds.

Opposition to Individual Defendants' Motion to Dismiss Opposition to Motion to Dismiss

All this transparently amounts to an attempt to deny access to private legal representation — even if the government would love to claim otherwise in their filing, that they were making sure state money would not be wasted… However many similar transgressions against Brown were made under the guise of it being for “his own good”. They argued that he must be gagged in order that court may hold a fair trial. But if the government were supposedly so concerned with Brown’s due process rights, then why does their behavior so blatantly display otherwise?

Retaliation continues on the regular, with the latest incidents including an arbitrary re-arrest by the Bureau of Prisons, along with inappropriate subpoenas concerning wage garnishment mailed to The Intercept and Writers House, a literary agency. Brown is still being held responsible for $890,000 in damages mostly in relation to the hack of Stratfor, which he did not even commit.

The convict / former defendant himself, now a winner of the 2016 National Magazine Award, columnist with The Intercept, and currently working on a memoir slash manifesto for Farrar, Strauss & Giroux, said:

“The filing very thoroughly debunks the bizarre claims originally set out by prosecutor Candina Heath and her somewhat more capable Washington-supplied lawyers while noting the various ways in which the case law they cite often ends up supporting our own position rather than theirs. Naturally, the defendants – I love being able to refer to Heath and her FBI buddies as defendants, by the way – do not even attempt to explain why the government would have needed to know the identities and amounts given by anonymous donors to my legal defense fund if they merely needed to know how much was in it. Nor have they gotten around to making sense of their own stated reasons for trying to seize the money to begin with; this filing makes nonsense of their heavily nonsensical claim that they simply wanted to save the government money by seizing funds raised to get me a private lawyer and giving that money to the public defender I didn’t want, even though that would have forced me to continue to rely on the public defender for the remainder of a major case and thus obviously cost the state vast amounts of additional money, rather than the zero additional dollars the state would have had to pay were the donations to be used to allow me to pay for my own lawyer (as eventually happened). Essentially, Candina Heath and the North District of Texas’ Office of the District Attorney has built its defense on the implication that they don’t know the difference between ‘zero additional dollars’ and ‘vast amounts of money.’ And even if they were to get past that, they’d still have to explain how tracking down donors to a cause to which they were personally and professionally opposed, and doing so in an irregular way before apparently holding back some of the illicitly-obtained information from the court that this was supposedly intended for, was some sort of cost-saving measure. Good luck with that, Candina.”

The class representative for our donors remains anonymous, as revealing their identity would cause the very harm that this complaint seeks to redress. The primary plaintiff Kevin Gallagher, a technologist and privacy/transparency activist now based in San Francisco, who started the defense campaign for Brown and directed its efforts for years, said:

“It’s telling that the defendants in this case; officials who’ve been nominally entrusted to uphold the “rule of law”, have turned to several high-powered attorneys from senior DOJ divisions based in Washington, D.C. to handle their defense. However, there’s no getting around the fact that such donations as those at concern here are unambiguously acts of political expression which are explicitly covered by the Bill of Rights. Without a doubt, this case is still moving forward and we eagerly await to hear the judge’s perspective on the substantive issues raised.”

You can read the documents in their entirety below or download them here and here.