Carmen Ortiz In The Spotlight, Under Fire

Carmen Ortiz In The Spotlight, Under Fire
By Phillip Martin
WGBH News
7 May 2014

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As Massachusetts’ first female and first Hispanic U.S. Attorney, Carmen Ortiz was widely considered a potential rising star in Democratic Party politics. But over the past three years she has had her hands full with controversial cases that have left whatever political plans she may have had in a state of uncertainty.

There have been big-name prosecutions that she has lead — and is leading now — that under most circumstances would be the kind of feather in one’s cap that could propel an ambitious would-be politician to greater heights. For example, it was Ortiz’ss office that put notorious fugitive gangster Whitey Bulger away. And she’s leading the prosecution of suspected Boston Marathon bomber Dzhokhar Tsarnaev.

But questions have been raised about Ortiz’ss decision to cooperate with the British government to gain legal access to Boston College’s interviews with former Irish Republican Army members. Archival voices in that collection include that of IRA member Delours Price, who died in 2013. Two years before she passed, the U.S. Attorney subpoenaed BC for Price’s interviews, though that information — purportedly linking the IRA and its leaders to multiple murders — was supposed to be kept confidential until her death. Ortiz’s critics say that her relentless pursuit of information from Price while she was alive went too far. That same year — 2011 — Ortiz’s office pursued federal charges on behalf of MIT against a talented computer programmer named Aaron Swartz.

“I think that Carmen Ortiz — there’s an interesting thing — her pursuit of Aaron Swartz went along side of the Dolours Price archives,” said Carrie Twomey, the wife of Anthony McIntyre, the principal researcher at BC’s oral history project. Twomey told WGBH News that Ortiz’s decision to pursue separate federal actions against both Swartz and Price may have contributed to their tragic fates.

“Both Dolours Price and Aaron Swartz died within weeks of each other,” she said. “The stress of the case that was taken against them really took a toll on their mental health. And Carmen Ortiz’s office was aware, made aware in both cases, that the people she was pursuing, Dolours for the archive and Aaron Swartz for the MIT aspect, were vulnerable people.”

Speaking with WGBH Radio from her home in County Louth, Ireland, Twomey said that Boston College and MIT were faced with two fundamental questions: “Do they cooperate with the authorities and compromise their research or compromise their academic freedom? Or do they protect what they are supposed to be bulwarks for? So I think Eric Holder and Carmen Ortiz, they looked at this as purely criminal.”

It was two years ago that McIntyre and journalist Ed Moloney argued before the first federal court of appeals in Boston that the U.S. Attorney’s decision to issue subpoenas to force BC to divulge details from the oral history project would put their lives in danger. In court, Carmen Ortiz’ office pushed back, represented by Assistant U.S. Attorney Barbara Healy Smith.

“The issue there is Mr Moloney, who is here and a US citizen, asserted no risk to his personal safety. The personal safety of Mr. McIntyre….our constitution does not protect non-citizens outside of the country from unnamed third parties who might bring them harm” – Assistant U.S. Attorney Barbara Healy Smith, April 4, 2012

The court sided with Boston’s U.S. Attorney, but that wasn’t the end of the matter. Christina Sterling, a senior spokesperson for Ortiz’ office, responded to this story with a carefully worded statement:

“The Department of Justice received a request from the United Kingdom for legal assistance in an active criminal investigation involving allegations of murder, kidnapping and other serious crimes,” the statement read. “Consistent with our treaty obligations and our long-standing law enforcement relationship with the U.K., we responded. This matter was litigated all the way up to the United States Supreme Court and at each stage the court found our actions consistent with our treaty obligations and otherwise in compliance with U.S. law.”

But Moloney — the author of a major history of the IRA and on whose work the Oral History Project at BC is based — says that Ortiz and the DOJ should never have sought confidential files from BC in the first place, because, he argues, the details about IRA disappearances and the purported role of Gerry Adams came from a another source, despite claims to the contrary by a Sunday tabloid in Ireland.

“And in order to disguise the true origin, which was the Irish news tape, the reporter in the Sunday tabloid said that, or implied that, he had been given access to Delours Price interview from the Boston College Archives,” Moloney said. “That claim was repeated by Carmen Ortiz in her affidavit to the district court in Boston in the autumn of 2011 when court proceedings started. This claim by Carmen Ortiz was made without any attempt to exercise due diligence on the part of the Department of Justice.”

Boston College was issued subpoenas through Ortiz’ office on behalf of the Police Services of Northern Ireland. The basis for the subpoenas was what is known as a Mutual Legal Assistance Treaty, and with that, BC spokesman Jack Dunn says, Ortiz gave Boston College little choice but to comply.

“We fought that subpoena — two subpoenas actually — over the course of two years, and we did our best to try to defeat it,” Dunn said. “We don’t think it was appropriate for government to infringe on academic research and thus we embarked on a two-year campaign to oppose the subpoenas. I suppose she’s doing her job, but we do think that special privilege should be given to academic research, because if people feel they can’t tell their oral history stories out of fear out of government involvement, no one will ever tell these stories.”

“A chilling effect” is the phrase some have used to describe the fallout from the Boston College case. It’s the same phrase many of Swartz’s supporters have employed to describe the impact of Ortiz’s decision to prosecute the young hacker, who had used his computer skills to download a massive trove of academic articles from MIT’s computer network, JSTOR.

Federal prosecutors in response to the MIT breach filed charges that could have landed Swartz in prison for 35 years and $1 million in fines. He took his life in New York after the indictment came down. Now, the upcoming theatrical release of a new Sundance documentary about Swartz threatens to resurrect negative public opinion about the role of U.S. prosecutors in Boston. Swartz’s family specifically blamed MIT and Ortiz’s office for his death.

“If Aaron had been Goldman Sachs than it would have been handled in a much different way,” said Harvard Law professor Larry Lessig, Swartz’s friend and mentor. “I mean, one of the most striking things about the prosecution is to recognize the way in which the opportunity here to exploit this relatively young, not corporately connected individual becomes almost irresistible for the prosecutors. And every effort to try to check it and insert reasonableness and proportionality into the process gets resisted and instead results in more extreme efforts by the prosecutor.”

The Swartz case has become a cause célèbre across the Internet, where Ortiz has by contrast been widely portrayed as a villain. Ortiz has not spoken publicly about the Swartz case, nor the Boston University Oral History Project. Indeed, many U.S. Attorneys often cannot speak for themselves for fear of jeopardizing legal proceedings and sometimes torpedoing political ambitions. So Sterling read a statement to WGBH News on Ortiz’s behalf:

“So for starters, U.S. Attorney Carmen Ortiz has made it clear many times that she does not have political aspirations,” Sterling said. “She has been and continues to be focused on her job as United States Attorney. Carmen, like her predecessors, makes very difficult decisions every day and those decisions often resonate widely in our own communities, and the nation for that matter. For all the praise for investigating public corruption, terrorism and organized crime cases, there will always be criticism. It comes with the job.”

Dunn sympathizes with what one observer describes as Ortiz’s “between-a-rock-and-a-hard-place position” in regard to federal prosecutorial decisions that often emanate from Washington, and the kind of negative fallout that would put a nail in the coffin of political ambitions anywhere.

“I don’t know if people are particularly passing their blame to Carmen Ortiz unfairly, but in fairness to her, I suspect she feels that she had a job to do, so things might have been done differently,” he said. “That’s the beauty of hindsight.”

But others are not so sympathetic, and Ortiz says she will have to live with that. It comes with the job.