Category Archives: Justice

Military Officials Aren’t Supposed to Associate With Hate Groups. So Why Are These Generals Speaking at Frank Gaffney’s Confab?

Over the past decade, the Center for Security Policy emerged as one of the most notoriously bigoted and conspiratorial think tanks in Washington, D.C. Under its founder and president Frank Gaffney, the organization regularly found itself in the news for promoting anti-Muslim conspiracies — including farcically paranoid ones. Yet, unlike similar organizations that remain on the political fringes, the Center for Security Policy is remarkably close to the halls of power — not just to President Donald Trump, to whom Gaffney was an informal adviser during the campaign, but also to the traditional power brokers of the defense establishment.

That closeness will be put on display on October 17, when the Center for Security Policy will be co-hosting a symposium on “asymmetric threats” in Virginia. Organized with the Institute for the Study of War, the Mitchell Institute for Aerospace Studies, and government contractor CACI International (whose employees have been accused of detainee torture in Iraq), the confab includes scheduled speakers who are high-ranking officials in several branches of the military.

“Frankly speaking, this is a hate group. Its activities have been documented for years and are well-known, but under this administration it is making a comeback.”

The presence of those government officials is raising eyebrows.

“Frankly speaking, this is a hate group,” said James Zogby, president of the public policy research group the Arab American Institute, in reference to the Center for Security Policy. “Its activities have been documented for years and are well-known, but under this administration it is making a comeback.”

In addition to Gaffney himself, the list of scheduled speakers includes a number of high-ranking active duty military officials. The anticipated participation of four active-duty lieutenant generals – the Air Force’s VeraLinn “Dash” Jamieson and David. D. Thompson, Daniel J. O’Donohue of the Marine Corps, and Michael K. Nagata of the Army – at an event sponsored by Gaffney’s group might stand in contrast to the equal opportunity manuals issued by each of their respective service branches.

The Air Force and Army did not respond to requests for comment. The Marine Corps referred questions about the event to the Joint Chiefs of Staff, who did not return a request for comment.

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Lt. General Veralinn Jamieson, top left; Lt. General Daniel J. O’Donohue, top right; Lt. General David D. Thompson, bottom left; and Lt. General Michael Nagata, bottom right.

Photos: U.S. Air Force (2), U.S. Army, U.S. Joint Chiefs of Staff

Little is usually made of the the armed services’ policies on associations with so-called “extremist groups,” but all the branches have them. The codes received renewed attention after the participation of Marine Corps Lance Corporal Vasillios Pistolis in last year’s violent white supremacist rally in Charlottesville, Virginia. Pistolis was court-martialed and sentenced to a month in prison, docked pay, reduced in rank, and discharged from the Corps upon his release.

The Army’s equal opportunity manual warns that “participation in extremist organizations and activities by Army personnel is inconsistent with the responsibilities of military service.” It defines these “extremist” groups:

Extremist organizations and activities are ones that advocate racial, gender, or ethnic hatred or intolerance; advocate, create, or engage in illegal discrimination based on race, color, gender, religion, or national origin, or advocate the use of or use force or violence or unlawful means to deprive individuals of their rights under the United States Constitution or the laws of the United States, or any State, by unlawful means.

The Army manual specifies that service personnel are “prohibited” from “attending a meeting or activity with the knowledge that the meeting or activity involves an extremist cause.”

The Center for Security Policy’s recent history is littered with calls for religious discrimination; officials, right up through its executives, routinely stoke hate against Muslims. A 2010 CSP report described sharia, Muslim religious code, as “an alien legal system hostile to and in contravention of the U.S. Constitution,” and CSP Vice President Clare Lopez claimed in a 2013 speech that “when Muslims follow their doctrine, they become jihadists.”

Gaffney, for his part, has explicitly called for the persecution of observant Muslims, saying in a 2011 interview that that those who follow Islamic religious code are practicing “an impermissible act of sedition, which has to be prosecuted under our Constitution.”

Though many of the Center for Security Policy’s positions are shared with the white nationalist movement, Gaffney is usually careful to avoid associations with explicit white nationalists. But, in a few instances, he has crossed paths with them. In 2015, Gaffney had prominent white nationalist Jared Taylor on his radio show, Secure Freedom Radio. Gaffney praised Taylor’s website, American Renaissance, as “wonderful.” In the interview, Taylor and Gaffney decried the civilizational threat posed by Muslim refugees in Europe and the U.S. and said he “appreciated tremendously” the work being undertaken by Taylor.

Gaffney ultimately scrubbed the interview from his website and claimed to be “unfamiliar with Mr. Taylor’s views on other matters and did not discuss or endorse them.”

Gaffney’s promotion — accidental or not — of Taylor’s work, alongside CSP’s track record of promoting discrimination against a religion whose practices would otherwise be constitutionally protected appears to tick several of the boxes of a group falling under the Army’s definition of an “extremist organization.”

The other military branches share similar policies.

The Air Force’s equal opportunity manual informs commanders and supervisors that participating in groups “espousing supremacist causes or advocating unlawful discrimination” is a violation of the Air Force’s equal opportunity policies. And the Marine Corps directs that:

Marines must reject participation in organizations that espouse supremacist causes; attempt to create illegal discrimination based on race, creed, color, sex, religion, or national origin; advocate the use of force or violence; or otherwise engage in efforts to deprive individuals of their civil rights.

The officers attending the Center for Security Policy-sponsored conference aren’t declaring themselves members of the group or even explicitly endorsing the organization’s anti-Muslim statements. And there’s no indication that Gaffney or any other Center of Security Policy staff will discuss their efforts to discriminate against Muslims or spread anti-Muslim conspiracy theories at a conference about cyber-defense, defense technologies, and procurement.

But CSP’s track record of promoting conspiracy theories and advocating various forms of discrimination against practicing Muslims appears to fall squarely within the military’s definitions of the sort of “extremist group” with which active duty member of the military are forbidden from associating.

Those who have spent years monitoring the Center for Security Policy say that the group’s continued prominence under the Trump administration is troubling, though unsurprising.

“I don’t expect people in the Trump administration to push back against this group given that they share many of its views,” said Zogby. “The only leverage we have is to continue to speak out about their influence, which is like a cancer eating away at government from the inside.”

Top photo: Frank Gaffney, founder and president of the Center for Security Policy, testifies during a hearing of the Senate Judiciary Committee on July 24, 2013 in Washington, D.C.

The post Military Officials Aren’t Supposed to Associate With Hate Groups. So Why Are These Generals Speaking at Frank Gaffney’s Confab? appeared first on The Intercept.

Saudi Media Casts Khashoggi Disappearance as a Conspiracy, Claims Qatar Owns Washington Post

In Saudi Arabia, major media outlets have cast the disappearance and apparent murder of Saudi dissident and Washington Post journalist Jamal Khashoggi as a foreign conspiracy to denigrate the image of the kingdom. The media accounts, which come from outlets run with the backing of Saudi Arabia and other Persian Gulf monarchies, are spinning the coverage of Khashoggi’s disappearance as a plot by rival governments and political groups to hurt the kingdom — going so far as to make false claims about the Washington Post’s owners.

The English-language arm of the news channel Al Arabiya, for instance, claimed that reports of Khashoggi’s detention inside the Saudi consulate in Istanbul were pushed by “media outlets affiliated with the outlawed Muslim Brotherhood and Qatar” — the pan-Arab Islamist political movement and rival Persian Gulf monarchy, respectively. A subsequent story on Al Arabiya casts doubt that Khashoggi’s fiancée, Hatice Cengiz, is truly who she says she is, claiming that her Twitter profile shows that she follows “critics of Saudi Arabia.”

Al Arabiya is owned by the Saudi royal family and based in Dubai, one of the Gulf monarchies that has sided closely with Saudi Arabia amid the regional row with Qatar and others. It’s among a handful of other Saudi- and Gulf-controlled outlets — such as Al Riyadh Daily, Al-Hayat, and the Saudi Gazette — that toe their governments’ line, including frequently casting a conspiratorial light on critics of the governments’ human rights records.

Saudi media outlets are kicking into overdrive to both deny any Saudi involvement and disparage Khashoggi.

In recent months, as tensions have boiled over with Qatar, Saudi Arabia is increasingly scapegoating its Persian Gulf adversary. Recent news articles in Al Arabiya blamed Qatar for Saudi Arabia’s brutal war in Yemen against Houthi militia forces, a conflict that has killed over 15,000 people and brought at least 7 million to the brink of starvation.

With a public relations crisis erupting over Saudi Arabia’s alleged role in Khashoggi’s disappearance, these Gulf-linked outlets are kicking into overdrive to both deny any Saudi involvement and disparage Khashoggi.

In a Thursday column for the Saudi daily newspaper Okaz, Mohamed El Saad argued that Khashoggi has advanced the interests of Qatar. He then falsely claimed that Qatar has a “50 percent ownership of the Post and has influence over its editorial direction.” Qatar, notably, has no ownership stake in the Washington Post, a paper that is privately owned by American billionaire Jeff Bezos.

Another Okaz columnist, Ahmed Ajab Al-Jahrani, claimed in a column titled, “Who Liberated Khashoggi?” that the government critic was a terrorist sympathizer whose sectarian goals were designed to destabilize the Saudi government. Al-Jahrani suggests that Khashoggi’s disappearance from Turkey represented liberation, since he had been “kidnapped” by “extremist groups” while living abroad in self-imposed exile.

Other columnists echoed these frequent refrains. Jameel Altheyabi, who write for the Saudi Gazette, an English-language affiliate of Okaz, wrote that any fears about Khashoggi’s disappearance should be blamed on Qatar, not Saudi Arabia. Altheyabi also suggested that Khashoggi’s fiancée may serve the interests of foreign spies and that much of the media coverage of Khashoggi appeared orchestrated by foreign enemies. “Those involved in the drama of Jamal’s disappearance after leaving the Saudi Consulate will face severe penalties,” he warned.

Meanwhile, evidence of Saudi involvement in Khashoggi’s disappearance has been steadily mounting. On Wednesday, the New York Times and other outlets published photographs of 15 men who arrived in Istanbul aboard two private planes on the day of Khashoggi’s disappearance. The men included several Saudi military officials, among them Salah Muhammad al-Tubaigy, the chief of forensic evidence and an autopsy expert with the Saudi Interior Ministry. The group arrived in Turkey the day of Khashoggi’s scheduled meeting at the Saudi consulate and also visited the same consular building. All 15 of the men boarded private planes to quickly leave the country and return to Saudi Arabia later that day.

Saudi-affiliated outlets reacted by defending the rights of the accused hit squad. Al Yaum, a pro-government newspaper published in Saudi Arabia, reported the disclosure of the 15 men as a violation the “rights of tourists.” The photographs, the paper claimed, were defamatory. In the news section of the paper, the men were urged to seek an attorney to file a lawsuit against those who had published their photographs. Al-Riyadh Daily, in an editorial on Friday, sharply criticized foreign media for attempting “to incite international public opinion against the kingdom,” claiming that the New York Times has an “an anti-Saudi policy.”

News outlets affiliated with Saudi Arabia also toe the government’s line abroad, to an international news audience. Asharq Al-Awsat, an Arabic-language newspaper headquartered in London and owned by Faisal bin Salman, a member of the Saudi royal family, has published several columns this week claiming that foreign agents tied to the Muslim Brotherhood and Qatar were behind reports claiming that the Saudi government had a role in Khashoggi’s disappearance.

This isn’t the first time the Saudi-backed outlets have sprang to the defense of the government amid a public relations fiasco over the regime’s human rights record.

After the Saudi government executed peaceful political dissident Nimr al-Nimr, a Saudi citizen from the minority Shiite sect of Islam, in January 2016, Saudi media outlets were quick to spin the execution as a decisive move to curb Iranian influence. Similarly, after the 28 pages of the 9/11 Commission Report were declassified, revealing that Saudi government agents had provided financial support and recommendations for flight schools to some of the Al Qaeda hijackers, Saudi Arabian media outlets attempted to deflect blame on Iran.

Top photo: Protestors hold pictures of Jamal Khashoggi during a demonstration in front of the Saudi Arabian consulate on Oct. 8, 2018 in Istanbul.

The post Saudi Media Casts Khashoggi Disappearance as a Conspiracy, Claims Qatar Owns Washington Post appeared first on The Intercept.

Jamal Khashoggi Wasn’t the First — Saudi Arabia Has Been Going After Dissidents Abroad for Decades

The story of Jamal Khashoggi’s disappearance and possible murder has riveted the world’s attention with its macabre, and mysterious, details. The soft-spoken but sharply critical Saudi journalist vanished after entering the Saudi consulate in Istanbul, Turkey, on October 2. Theories about his fate include the horrifying possibility that Khashoggi was murdered — and perhaps even tortured and dismembered — at the hands of the Saudi state. (The Saudi government continues to vehemently deny these charges.) Should these allegations prove true, Khashoggi’s fate could have vast ramifications for the reputation of Saudi’s Crown Prince Mohammad bin Salman, known as MBS, who has until now sought to establish himself as a figure of modernization and reform. Already, Khashoggi’s case has elicited an unusually strong response from Western media and parts of the American government alike, casting Saudi Arabia’s geopolitical future in doubt.

“The case of Jamal Khashoggi, unfortunately, is only the tip of the iceberg.”

For some, the prospect that the Saudi government would order the assassination of one of its own citizens abroad seems unthinkable. Yet Khashoggi’s case would not be without precedent. Saudi Arabia’s government has long sought to exert control of its people beyond the kingdom’s borders — a practice that has only intensified in recent years. “The case of Jamal Khashoggi, unfortunately, is only the tip of the iceberg,” said Rami Khouri, a senior public policy fellow and professor of journalism at the American University of Beirut. “If it’s proven that the Saudi government is behind his disappearance, it would only be the most dramatic example of a trend that has been ongoing for at least 30 to 40 years, but which has escalated under MBS.”

The crackdown has become so intense that many Saudis living abroad — even those who are not exiled activists — fear they could be targeted. Khashoggi’s story, and others like it, have left Saudi nationals questioning whether there is any distance sufficient to protect them from their government. “We constantly fear that we’re being watched,” one Saudi national living in self-imposed exile told The Intercept in June. “Even though many of us are not activists, we still worry that maybe something we say or do or post online will somehow endanger our families back home.”

In recent years, Saudi Arabia has employed a wide spectrum of tactics in dealing with dissidents abroad. Often, the Saudi government will begin with an attempt to persuade dissidents to cease their criticism or request that they return to the kingdom to sort out the issue on Saudi soil. Should these efforts fail, the government may move into a more coercive mode. Saudi activists abroad report receiving phone calls from their local embassies and consulates, urging them to come in for undefined reasons. “None of us would ever actually go to these meetings,” one Saudi activist, currently living in the United States, told The Intercept several weeks before Khashoggi’s disappearance. “We know inside there, anything could happen.”

Saudi Arabia’s attempts to silence exiled activists and others abroad goes back decades. One such early example is the still-unresolved case of Naser al-Sa’id, an activist who became one of the earliest opposition figures against the crown in the 1950s. In 1979, he praised a fringe Muslim group that stormed and took over the grand mosque in Mecca. Later that year, Sa’id disappeared while in Lebanon — and the Saudi state is widely believed to be behind it.

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Loujain al-Hathloul, left, and Fahad al-Butairi, right.

Photos: Wikimedia Commons

Since then, the government has continued to exert its control on dissenting voices beyond its borders — including those from within the ranks of the royal family. Since 2015, three princes have vanished while abroad after publicizing views critical of the Saudi government. In March 2017, prominent human rights activist Loujan al-Hathloul was arrested in the United Arab Emirates, where she was studying for her master’s degree. She was forced onto a private plane, flown back to Saudi Arabia, and jailed briefly, then placed under a travel ban. (Her husband, Fahad al-Butairi, was also removed from Jordan and flown back to the kingdom.) Later, in May 2018, Saudi security again arrested al-Hathloul at her home amid a wider crackdown on activists. She has not been heard from since.

The audacious, and outsized, nature of Saudi’s more recent crackdowns on its citizens abroad reflect MBS’s intense desire to control the narrative — in any and every form — about his rule. The crown prince has spent millions to project an image of himself as a reformer and visionary for a burgeoning Saudi renaissance, but his rule has been marked by increasingly autocratic tactics both domestically and abroad. This shift has lead to an uptick in Saudi asylum-seekers in Western countries, as well as thousands more who, like Khashoggi, have sought homes abroad through other means.

Khouri said bin Salman’s brutal tactics, now underscored by Khashoggi’s mysterious case, have sent chills through the Saudi diaspora, which could have grave ramifications for the region. “It’s gotten to the point that many ordinary people — non-activists, non-journalists — feel afraid to use their minds, to speak about opinions of any kind. There’s a sense that the government will not tolerate anything but outright pro-government propaganda,” he said.

The disappeared journalist at the center of today’s furor said as much earlier this summer. Khashoggi, then living in the Washington, D.C. area (he left Saudi Arabia in 2017 in response to the government’s escalating repression of the press), spoke to me for a separate Intercept story about the kingdom’s crackdown on activists and dissidents. “With MBS,” he said, “there is a growing authoritarianism, and it’s only going to get worse. He is seeking to crush opposition before it can even begin, just silencing and jailing people, good, respectable people, that he thinks might one day oppose him. We’ve seen everything become a question of loyalty to Mohammed bin Salman. I couldn’t take it.”

Khashoggi went on, “The government was sending a message that if you’re not with us, you’re against us. MBS wants to lead alone.”

Top photo: The shadow of a security guard is seen on the entrance door of the Saudi Arabia’s consulate in Istanbul, on Oct. 12, 2018.

The post Jamal Khashoggi Wasn’t the First — Saudi Arabia Has Been Going After Dissidents Abroad for Decades appeared first on The Intercept.

“Something Out of a Horror Movie”: Egyptian Security Forces Tortured and Raped American-Citizen Detainee, Rights Group Says

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Khaled Hassan.

Photo: Courtesy of Human Rights Watch

Egypt’s security forces raped and tortured a U.S. citizen, detaining him in secret for four months, according to a detailed Human Rights Watch report published on October 11.

In interviews with Human Rights Watch researchers from prison, Khaled Hassan, an Egyptian-American limousine driver, said Egyptian officials from the country’s feared National Security Agency beat him, stripped him naked, hung him by his arms, and shocked him on his testicles. He also said Egyptian security forces anally raped him with a wooden stick and, on a separate occasion, ordered another security agent to anally rape him again. The human rights group published photos of what it said were Hassan’s wounds from the torture.

“It’s something out of a horror movie.”

“It’s something out of a horror movie,” said Mohamed Soltan, a former political prisoner in Egypt and the head of the group Freedom Initiative, which advocates for Egyptian prisoners. “This is definitely an escalation. It’s sad to say, but had Khaled not had his American citizenship, this would have been just another case. This has happened to Egyptians in the past. But it’s become normalized.”

The Egyptian embassy in Washington did not return requests for comment. Egyptian authorities denied that they tortured Hassan in statements sent to Human Rights Watch.

The shocking allegations underscore how security forces under Egyptian strongman President Abdel Fattah el-Sisi have waged a scorched-earth campaign of torture and enforced disappearances targeting their own citizens. The alleged torture of Hassan is yet another instance of U.S.-backed allies in the Middle East running roughshod over human rights — even when the victims are linked to the U.S.

Over the past several weeks, news reports have sketched out the details of the disappearance of Jamal Khashoggi, a Saudi Arabian dissident journalist. Khashoggi, a U.S. resident and Washington Post columnist, visited the Saudi consulate in Istanbul, Turkey, and never emerged, according to media reports. Unnamed Turkish security sources have said that Khashoggi was killed by Saudi security officials in the consulate — a charge that Saudi Arabia denies. While the disappearance raised some outrage in Congress, the administration of President Donald Trump, which has grown particularly close to a handful of U.S.-allied Arab dictatorships, has done little to address the events.

“We are deeply concerned by these reports,” a State Department spokesperson told The Intercept when contacted about Hassan’s case. “We are providing all appropriate Consular services. Consular officers from U.S. Embassy Cairo have visited him several times since learning of his incarceration.”

Hassan’s case is the most brazen example of Egypt abusing a U.S. citizen. But he’s not alone. There at least 16 other American citizens being held in Egyptian jail, according to Soltan.

While Egypt has released a handful of Americans in the past, they have also doubled down on the detention of others. Last month, an Egyptian court sentenced Moustafa Kassem, another Egyptian-American dual citizen, to 15 years in jail, despite Vice President Mike Pence urging Sisi to let him go. Kassem, a diabetic, is currently on a hunger strike and as a result, has been placed in solitary confinement. On September 26, seven members of Congress sent a letter to Pence, asking him to pressure Sisi to release Kassem.

Khaled Hassan’s case has not gotten much public attention from the U.S. government, but Soltan, the Egyptian prisoner advocate, told The Intercept that Pence aware of it. “They’re following it,” he said. “They’re glad there’s media attention on this.”

Hassan’s brother, Magdy, said he wants the Trump administration to do more to help.

“I voted for Trump. I believe he was very clear about national security and all that stuff. But this is also part of national security — a U.S. citizen being kidnapped abroad,” he said. “My message to the president or the vice president is, do something please, inquire about him. A phone call from the vice president or the president himself to the president of Egypt inquiring about a U.S. citizen about why he’s been kidnapped would make a big difference.”

Hassan was arrested on January 8 in the coastal city of Alexandria as he was trying to meet his brother. His family had no idea where he was until May 3, when Hassan appeared before an Egyptian military prosecutor.

Eleven days after his arrest, Egyptian security forces raided his Alexandria home, where his wife and three children were staying. The security officials pointed guns at the children and told Hassan’s wife, Liuba Skateeff, to leave the country, which she did later that week. The security forces also hit Skateeff.

“We’ve been going through tough times. The kids have to suffer watching the Egyptian authorities breaking into their apartment, invading their bedrooms, breaking their house, searching their belongings and clothes, and pushing their mom in front of them, slapping her around,” Magdy Hassan, Khaled’s brother, told The Intercept. “They were in shock.”

Egypt accused Hassan of being a member of an affiliate of the Islamic State in Iraq and Syria, known as ISIS. Under torture, Hassan confessed to spying on Egypt’s military for ISIS’s offshoot in the Sinai province, recruiting foreigners for the group and financing them.

Hassan now denies the charges. He is on trial alongside hundreds of others. Egyptian authorities have not presented any specific evidence against Hassan, according to Human Rights Watch.

The post “Something Out of a Horror Movie”: Egyptian Security Forces Tortured and Raped American-Citizen Detainee, Rights Group Says appeared first on The Intercept.

Let’s Use Social Media to Put Pressure on Saudi Arabia Over Jamal Khashoggi’s Disappearance

Holding pictures of missing Saudi writer Jamal Khashoggi, people gather in his support, near the Saudi Arabia consulate in Istanbul, Friday, Oct. 5, 2018. Khashoggi, a 59-year-old veteran journalist who has lived in self-imposed exile in the U.S. since Prince Mohammed's rise to power, disappeared Oct. 2 while on a visit to the consulate to get paperwork done to be married to his Turkish fiancee. The Saudi Consulate insists Khashoggi left its building, contradicting Turkish officials who say they believe he is still there. (AP Photo/Emrah Gurel)

Holding pictures of missing Saudi writer Jamal Khashoggi, people gather in his support near the Saudi Arabia consulate in Istanbul on Oct. 5, 2018.

Photo: Emrah Gurel/AP

Many of my greatest heroes were assassinated.

I am thinking about Patrice Lumumba, the first prime minister of post-colonial Congo. Orchestrated by American and Belgian governments, his murder is sometimes called “the most important assassination of the 20th century.” He was just 35 years old.

I am thinking about South African intellectual Steve Biko, who was the 46th political prisoner killed while in police custody during Apartheid — which allowed imprisonment without trial or any type of due process. He was just 30 years old and died of a traumatic brain injury.

I am thinking of the fierce South African resistance leader, Chris Hani, who was shot and killed in 1993. Hani was the second most popular leader in the country and was murdered by a white supremacist with the support a longtime bigoted member of parliament.

I am thinking of Tom Mboya of Kenya. I am thinking of Amílcar Cabral of Guinea-Bissau. I am thinking of the brilliant scholar and activist Walter Rodney of Guyana.

Of course, I am thinking of Martin, Malcolm, and Medgar.

I am thinking of Goodman, Chaney, and Schwerner — the three young Freedom Riders who traveled to Mississippi to register Black folk to vote. This summer, I spoke for the Andrew Goodman Foundation and was so touched to meet his family. Fifty years later, they are still grieving the loss.

And I am thinking of the brave Brazilian activist Marielle Franco, gunned down in a drive-by assassination this by March.

In many of those cases, nobody was ever held responsible. Not legally or even in the court of public opinion. In fact, governments around the world have participated in targeted assassinations with little to no blowback for decades.

I think social media, and the way it democratizes information — and confrontation — has a chance to change all that.

On the afternoon of Tuesday, October 2, Washington Post columnist Jamal Khashoggi walked into the Saudi Arabian consulate in Istanbul, Turkey, to finalize some paperwork for his upcoming marriage. Exterior security camera footage clearly shows him entering the building. But not a single shred of evidence, from eyewitnesses or cameras, shows him leaving. The Saudi consulate now says they don’t have any footage from inside the building and give no explanation for why Khashoggi was never seen leaving.

What we do know is that Khashoggi, while careful to not call himself a dissident, was an informed critic of Saudi Crown Prince Mohammed bin Salman, known as MBS, and the manner in which he manages the country. Now, according to media reports, Turkish investigators believe that the Saudi government assassinated Khashoggi and literally cut his body into bits inside of the consulate. As heinous as this is, it doesn’t quite come as a surprise — for people who follow the exploits of Saudi Arabia — considering how the government arrested and imprisoned activists across the country.

Not a surprise, but a new low nonetheless.

Maybe inside the kingdom’s bubble, the Saudi royal family didn’t really understand that we’d find out and that we’d care. Maybe they listened to President Donald Trump repeatedly ramble on about how the press is the enemy of the people, and they assumed we all thought that. We don’t. And unlike previous generations, outraged strangers around the world are connecting with one another via social media.

In the past 24 hours, I’ve connected with various associates of Khashoggi. They are distraught — “I met with his family to tell them that we were pretty sure Jamal had been murdered by Saudi government — it was devastating,” Khashoggi’s friend told me.

But, even more than that, they are pissed — and they are determined to get to the bottom of this. These aren’t men and women who will soon let go. Several have emphatically said that they will make it their life’s mission to get justice for Jamal Khashoggi.

Every journalist, activist, organizer, and peace-loving person in the world should make that their mission. If we don’t hold them accountable, who will? Trump? It damn sure won’t be the American business community, who seems so pumped to cozy up with MBS that they are willing to look past every repressive action he’s ever taken.

Social media can be an ugly place. I see that ugliness up close every single day. But it’s also what allowed me to identify and track down the bigots who attacked and maimed a young man in Charlottesville, Virginia, during a white supremacist rally. Social media brought people together to take down Bill O’Reilly at Fox News. It forced companies to stop disseminating the callous conspiracies of Alex Jones. When used well, it’s a powerful tool that allows an everyday person to confront powerful brands and leaders face to face.

In Saudi Arabia, you just can’t call out MBS without fear of being arrested or killed, but Twitter is an irreverent medium when addressing that type of power. And that’s a good thing.

The post Let’s Use Social Media to Put Pressure on Saudi Arabia Over Jamal Khashoggi’s Disappearance appeared first on The Intercept.

At Largest ICE Detention Center in the Country, Guards Called Attempted Suicides “Failures”

When Carlos Hidalgo was detained at the ICE processing center, in Adelanto, California, guards would mock the detainees lined up to get their meals by imitating the call of cows. “Moo! Here are the cows, walking through!”

Toiletries and clean clothes were in constant shortage and sick detainees were sometimes left in their soiled clothes, he told The Intercept. Detainees worked in the center’s kitchens for as little as $1 a day — or took cleaning shifts for no money but an extra ration of food. The food itself was so bad that it was sometimes infested with maggots, yet there was always too little of it — so that detainees would be forced to buy more at the center’s commissary. “It’s all about money,” said Hidalgo, who is now free on bond.

Staff at Adelanto ignored all but the most serious medical emergencies. After Hidalgo witnessed a detainee suffer seizures and staff do nothing to help him, he started organizing a detainee-run response team to help those suffering medical and mental health crises, which were frequent. When he asked the center’s staff for help, those working with the GEO Group, the private detention company that runs the center, would refer him to U.S. Immigration and Customs Enforcement. “If I asked ICE, they’d say, it’s GEO’s house, so ask them and go through them,” Hidalgo said. “Back and forth, so you end up getting nothing.”

In two stints at Adelanto — for nine months in 2014 and three in 2016 — Hidalgo learned to navigate the system and became a bit of an organizer among the detainees. He arranged for transgender detainees to stay together for protection and helped fellow detainees file formal grievances — earning himself reprimands and once a month in disciplinary segregation.

A guard once told him, “They don’t pay me enough to give a shit about you.” During his time there, two detainees tried to hang themselves with their bedsheets. “They just don’t give a damn,” said Hidalgo. “You’re just another number, you’re just another detainee.”

This May 1, 2018 photo from the Department of Homeland Security's Office of the Inspector General (OIG) shows a noose fashioned from bedsheets in a cell at the Adelanto Detention Center in Adelanto, Calif., a desert community 70 miles (113 kilometers) northeast of Los Angeles. Federal inspectors found nooses made from bedsheets hanging in more than a dozen cells during an inspection in May, 2018, The OIG issued a scathing report after visiting the privately-run detention facility run by the GEO Group. There were at least seven suicide attempts at the facility between December 2016 and October 2017, and a 32-year-old man killed himself by hanging in March 2017, according to the report. (OIG via AP)

A noose made from bedsheets in a cell at the Adelanto Detention Center in Adelanto, Calif., on May 1, 2018.

Photo: Department of Homeland Security Office of Inspector General via AP

“Suicide Failures”

Last week, the Department of Homeland Security Office of Inspector General, which is tasked with independently monitoring the department’s agencies, published a scathing report confirming some of the problems Adelanto detainees like Hidalgo have long denounced, including widespread indifference to attempted suicide. In one particularly disturbing detail, investigators mentioned finding several nooses, made of bedsheets, hanging in detainees’ cells.

The report was the result of a surprise audit at the facility last May, and it offers an indictment of the Adelanto facility in unusually blunt language for an official document. “These violations pose a significant threat to maintaining detainee rights and ensuring their mental and physical well-being,” the report states. “Although this form of civil custody should be non-punitive, some of the center conditions and detainee treatment we identified during our visit and outlined in this management alert are similar to those one may see in criminal custody.”

But the findings hardly surprised Hidalgo. “There are other things that are worse that have been committed there,” he said. “That’s not the worst.”

For years, detainees and their advocates have denounced inhumane conditions at the center, which can house up to 1,940 detainees, making it, along with the Stewart Detention Center in Georgia, the largest privately run immigration detention facility in the country. The documented abuses include medical neglect, poor hygiene and nutrition, and violations of religious liberties, as well as suicides, deaths in custody, and sexual abuse at the hands of ICE staff and contractors.

According to the OIG report, inspectors visiting Adelanto found braided bedsheets hanging as “nooses” in 15 of the 20 cells they visited — a violation of ICE standards that prohibit detainees from hanging or draping objects from furniture or fixtures. In March 2017, a 32-year-old Adelanto detainee died after being found hanging from his bedsheets in a cell there. There were seven other documented suicide attempts at Adelanto between December 2016 and October 2017, at least two of them by detainees who tried to hang themselves using their bedsheets.

“I’ve seen a few attempted suicides using the braided sheets by the vents and then the guards laugh at them and call them ‘suicide failures’ once they’re back from medical,” one detainee told inspectors. The report says that a senior ICE official told inspectors that “ICE management at Adelanto does not believe it is necessary or a priority to address the braided sheets issue.”

The report also criticizes excessive segregation and severely inadequate medical care. Inspectors found that 14 detainees were held in disciplinary segregation — i.e., solitary confinement — at the time of their visit, before an administrative process found them guilty of infractions and without a written order of segregation. “GEO Group staff indicated it is the center’s practice to place all detainees directly in disciplinary segregation after an alleged incident,” the report notes, a clear violation of ICE standards, as well as detainees’ rights to due process.

The report also found that detainees held in segregation were further penalized by losing contact visits with family or access to the commissary, even when those penalties were not sanctioned by the center’s rules. And inspectors observed staff moving six detainees in handcuffs and shackles, and were told by guards that they place all detainees in disciplinary segregation in restraints when outside their cells — yet another violation of ICE standards, which “gives the appearance of criminal, rather than civil, custody.”

Inspectors also found that a disabled detainee was improperly held in disciplinary segregation for nine days, until they raised the issue with the center’s administration. According to the report, in those nine days, the detainee never left his wheelchair to sleep on a bed or brush his teeth. A bag of beddings and toiletries remained untouched in the detainee’s cell.

Inspectors observed nurses, doctors, and mental health providers conducting “cursory walk-throughs” and stamping their names on detainees’ records hanging outside their cells without entering or speaking to them. Inspectors only observed medical staff talk to four of the 14 detainees they “visited” — and even in those cases, staff merely asked, in English, if the detainee was “OK.” “We confirmed with guards that these four detainees were non-English speakers, and the doctor left without any acknowledgement or response from the detainee,” the report notes.

Between November 2017 and April 2018, detainees at Adelanto filed 80 medical grievances saying that they were denied urgent care, medication, and medical visits for persistent health problems. In 2017 alone, between 60 and 80 clinical appointments were canceled because no guards were available to escort detainees to their visits — despite a long history of medical neglect allegations at the center, including three deaths since 2015 of detainees who had denounced lack of care.

The inspectors also found that detainees are placed on waitlists for months and sometimes years to receive basic dental care, despite the fact that ICE is required to provide dental care to those it holds for longer than six months. Detainees described to inspectors having multiple teeth fall out as they waited more than two years for cavities to be filled, having to wait more than eight months for an extraction, and having the wrong tooth pulled. Interviewed by inspectors, a dentist at the center told them that he “does not have time” for cleanings or fillings, adding that detainees would be fine if they committed to brushing and flossing. When reminded that floss is only available to detainees with a commissary account, the dentist replied that they “could use string from their socks to floss if they were dedicated to dental hygiene.”

Both ICE and the GEO Group said the report lacked appropriate “context,” but pledged to review the center’s practices and address issues. A spokesperson for ICE said in a statement in response to the report that “the safety, rights and health of detainees in ICE’s care are of paramount concern and Adelanto, like all ICE detention facilities, is subject to stringent, regular inspections.”

The spokesperson added that “ICE takes seriously the OIG’s findings and has agreed to conduct a full and immediate review of the center to ensure compliance with detention standards and expedite necessary corrective actions.”

A spokesperson for the GEO Group, which runs Adelanto, as well as dozens of detention centers across the country, said in a statement, “Our commitment is always, first and foremost, to high-quality care. For over thirty years, our employees have taken pride in our ability to provide quality services in safe, secure and humane environments for those entrusted to our care, and these findings of inadequacies are not consistent with our core values.”

Zero Accountability

“Adelanto is one of the worst immigrant prisons in the country,” said Liz Martinez, director of advocacy at Freedom for Immigrants, a southern California-based immigrant rights group that has coordinated volunteer visits to Adelanto since 2012 and runs a national hotline for detainees. “The OIG report confirms what we documented and exposed all along: that ICE and the GEO Group are systematically subjecting immigrants to intolerable conditions.”

“What’s more revealing, I think, is how the report details the unvarnished cruelty with which the staff and guards treat immigrants,” Martinez said. “The way they laugh after suicide attempts, the way they suggested using sock strings as floss. … They take pleasure in subjecting people to further misery.”

Just recently, a detainee at Adelanto told Freedom for Immigrants that in his cell block, guards removed all restroom curtains — the only privacy afforded to detainees. And two detainees told a volunteer that one night in late August the food was so bad that many detainees refused to eat — to which guards responded by pepper spraying them. “We hear stories all the time,” Martinez added. “The problem is when detained individuals report these kinds of incidents, no one believes them. And often they are retaliated against.”

The ICE spokesperson listed a number of measures in place at the agency to monitor facilities, including reviews by a third-party contractor. Facilities receiving a less than acceptable rating must be scheduled for a follow-up inspection within six months, the spokesperson said, and if a facility receives two consecutive final ratings of less than acceptable, ICE must discontinue use of the facility. In 2009, ICE also created the Office of Detention Oversight, a unit tasked with conducting independent reviews of detention conditions. The DHS Office for Civil Rights and Civil Liberties also conducts reviews whose findings are not publicly shared.

But as The Intercept has reported, while detention facilities are periodically inspected for compliance with ICE standards, the agency regularly gives its centers passing marks despite evidence of abuse and neglect. Last spring, the American Civil Liberties Union and nine other organizations wrote a letter to DHS denouncing ICE’s failure to comply with the detention standards set by Congress, criticizing the agency’s “unregulated self-assessment” and adding that “a close look at the inspections themselves reveals alarming evidence that they are sham assessments.”

Last June, a different OIG report concluded that ICE’s monitoring system is simply not working. “The inspections do not fully examine actual conditions or identify all deficiencies,” the OIG noted then. “ICE does not adequately follow up on identified deficiencies or consistently hold facilities accountable for correcting them, which further diminishes the usefulness of inspections.” ICE said in response to that report that the agency would “continue to ensure its detention facilities comply with relevant policies and standards through an aggressive inspections program,” and indicated that it would re-evaluate its inspection scope and conduct follow-up inspections.

“Adelanto has gotten passing inspections every year, even when people have died there in ways that were due to medical neglect,” said Grace Meng, a senior researcher at Human Rights Watch focused on the U.S. immigration system. “The inspection system is practically worthless. … Everyone gets a passing grade.”

The OIG began conducting unannounced inspections in March 2016. But while immigrant advocates welcomed the latest report on Adelanto as confirmation of the abuse and neglect they have long documented, they were skeptical that the report would bring any changes. “This isn’t new, it’s just been swept under the rug by ICE and the GEO Group for as long as they could and for as long as they were allowed to,” said Martinez, of Freedom for Immigrants. “There is zero accountability, which leads to a culture of impunity. … Adelanto is basically a microcosm of the horror that is the U.S. immigration detention system.”

IMG_9131_cropped-1539192344

A sign marking the edge of Adelanto on July 6, 2016 in Adelanto, Calif.

Photo: Alice Speri/The Intercept

Unlimited Possibilities

If the Adelanto detention center is a microcosm of the larger immigration detention system, the city itself is a cautionary tale about the country’s binge on mass incarceration and the privatization of detention.

A dusty, rural settlement in the Mojave desert two hours east of Los Angeles, Adelanto in 2015 had a population of 32,000 people, in addition to the 10,000 incarcerated people distributed between the immigration detention center, a county jail, a state prison, and a nearby federal prison.

Facing bankruptcy, Adelanto, which bills itself “the city with unlimited possibilities,” struck a series of deals with the GEO Group and the state prison. But while the contracts and subsequent expansions brought thousands of detainees to the city and millions in federal dollars to the GEO Group, the deals only briefly plugged the city’s deficit. As documented in a 2015 report by Freedom for Immigrants, then known as CIVIC, the center’s sale brought just a few low-paying jobs to local residents — while more than 100 residents who were already working at the facility lost their jobs — and Adelanto remained on the brink of bankruptcy, with serious unemployment and a dearth of schools and basic services. Meanwhile, the city was contractually obligated to guarantee the GEO Group a minimum of 975 occupants — which at a rate of $111 per day meant the company was guaranteed an annual income of $40 million. While the city would also get a cut, that totaled no more than $100,487.50 annually.

After the deal, the GEO Group nearly tripled the capacity of its facilities in Adelanto — doubling the detention center’s capacity the year after signing its first contract and adding 640 beds for female detainees in 2015. But even before the deal with the GEO Group, Adelanto had a history of poor contracting — including a highly controversial and costly deal to host a minor league baseball team that cost the city $6.5 million in municipal bonds. The team paid a meager rent of $1 a day. According to the CIVIC report, Adelanto’s first high school was prevented from opening for two years because it was over budget by $3 million, while renovations at the local San Bernardino County Jail were completed on time despite being $25 million over budget.

“There’s always just been nothing here except for prisons,” said Mario Novoa, a local resident and activist cited in the report. “And as far as I can tell they haven’t done much to help the city develop anything other than more prisons.”

Adelanto city officials did not respond to The Intercept’s requests for comment.

Last year, California enacted two laws, including the “Dignity Not Detention Act,” that effectively froze the growth of private prisons in the state by putting a moratorium on municipalities entering into new contracts with private prison companies or modifying existing contracts for the purposes of expanding detention. That law also gave the California attorney general the power to investigate and monitor private detention facilities, and the office is currently undertaking its first-ever review of federal immigration detention centers in the state, whose findings are due next March. Currently, nearly 4,000 immigrants are detained in California on any given day — with 70 percent of them held in private, for-profit facilities.

The new legislation also provided for private detention contractors to be subject to local public records laws from which they had previously been exempt. But advocates say that so far, the private companies have refused to comply with that provision of the new law. “That’s been in place since January, and we have tried to obtain information from these private facilities,” said Martinez. “But they keep saying that they’re not subject to the law.” The GEO Group spokesperson told The Intercept that the group takes no position on immigration enforcement policies and added, “We are provider [sic] of services to ICE and under our contracts, all requests for data and records must be made directly to ICE.” ICE declined to comment.

“Like Captain America to Me”

Hidalgo, who is 51, arrived to the United States from El Salvador in 1981, carrying his 3-year-old sister in his arms. At the border, he was detained and filed for asylum. He remembers the officer who detained him spoke to him in Spanish with an American accent, encouraging him and patting his shoulder. “That was like Captain America to me,” said Hidalgo. “We were processed through humane methods that they had, dignified, not jails.”

His next encounter with the U.S. immigration detention system, after a conviction for petty theft in 2014, was another story.

“It’s as if immigrants have no right to dream and have a better life,” he told The Intercept. “I’ve seen guys come in with high spirits, wanting to fight, and months later, they’re defecating on their hands, banging their heads against the wall, talking about suicide.”

“In there, it’s all about breaking you down,” he added. “The process they have is to demoralize you, break you down, and ship you out.”

Top photo: Imprisoned immigrants are seen at the U.S. Immigration and Customs Enforcement Adelanto Detention Facility in Adelanto, Calif., on Sept. 6, 2016.

The post At Largest ICE Detention Center in the Country, Guards Called Attempted Suicides “Failures” appeared first on The Intercept.

The Trump Administration Carried Out Thousands More Family Separations Than Previously Acknowledged

More than a year after the Trump administration quietly began a program of separating migrant children from their families along the U.S.-Mexico border, the full number of people impacted remains unclear. According to a new report, however, the government’s own data indicates that the campaign was far more expansive — and far more destructive — than previously acknowledged.

Figures provided by U.S. Customs and Border Protection detail the separation of 6,022 “family units” from April 19, 2018 to August 15, 2018, according to a report published by Amnesty International on Thursday. Noting that the term “family unit” has varying applications in the U.S. immigration enforcement world — sometimes referring to individuals in a family, and other times referring to family groups containing multiple people — Amnesty observes that even on the low end, the figure reflects the largest total ever disclosed by the border enforcement agency in the context of the family separation crisis.

Using available statistics from the last two years, Amnesty further reports that in 2017 and 2018, the Trump administration appears to have separated approximately 8,000 “family units” along the border. Even if half of the people referred to in that figure were parents, the remaining 4,000 children would dwarf the total number of kids commonly reported to have been impacted by the “zero tolerance” campaign — that total tends to hover between 2,500 to 3,000.

The numbers are admittedly murky, said Brian Griffey, the author of the Amnesty report. But that’s because the agency that provided them — CBP — refused to provide any clarification as to what, exactly, they reflected. Conversations with the border enforcement agency continued into last week, Griffey told The Intercept in an interview on Tuesday. The closest Amnesty could get to a clarification on the “family unit” question, Griffey said, was a claim from CBP that the 6,022 figure “appeared” to refer to individuals. According to the Department of Homeland Security, which includes CBP, “family unit” apprehensions refer to the individual count of each family member.

“They have to come clean,” Griffey said. “It requires a congressional inquiry, that’s our view.”

CBP did not respond to The Intercept’s request for comment. Katie Waldman, a DHS spokesperson, mischaracterized Amnesty’s findings in her emails to The Intercept and, despite repeated follow-ups, did not explain the disparity between the numbers provided by CBP and those previously acknowledged by authorities, including in response to the Ms L v. ICE class-action lawsuit. Instead, Waldman issued the following statement: “This is a deeply flawed, inaccurate report authored by an open-borders activist group. In fact, many of its so-called ‘findings’ contradict data provided in federal court by the government, the ACLU, and Judge [Dana] Sabraw. It is not even remotely credible and should not be treated as such. Individuals looking for an accurate accounting of the Administration’s Zero Tolerance efforts should examine the Ms L court filings which identified 103 children between the ages of 0 and 4 who are potential class members and 2,551 children between the ages of 5 and 17 who are potential class members.” Asked for clarification on what specific parts of the report were inaccurate and misleading, given that Amnesty based much of its findings on data provided by CBP, she simply resent her agency’s original statement with no additional information.

The Office of Refugee Resettlement, which takes custody of minors once they are separated from their families, did not answer The Intercept’s questions besides providing generic links to its website.

As Amnesty’s report makes clear, family separation numbers are but the most well-known piece of a much larger story, one in which the Trump administration has waged a systematic, multi-pronged, and frequently illegal attack on some of the world’s most vulnerable immigrants and the systems designed to protect them. Asylum-seekers, the report finds, have borne the brunt of this assault, being illegally turned away from lawful ports of entry — with the cooperation, in some cases, of Mexican authorities — and held in indefinite detention. The report also details the cases of asylum-seekers who had their children taken from them, experiencing what Amnesty says amounts to torture.

Even as family separations have receded from the headlines after the full-blown scandal of this summer, the Amnesty report underlines what’s still unknown about the true impact and timeline of the policy. As Amnesty documents, the president and his closest advisers have routinely relied on dehumanizing rhetoric in reference to immigrants, particularly asylum-seekers, and devised strategies clearly designed to terrify them away from coming to the United States. At the same time, the administration has provided little guidance to DHS agencies in implementing these orders. The result, frequently, has been chaos. Griffey attributes it to what he calls a “confluence of malice and incompetence.”

“You never know if it’s one or the other or just both,” he said.

UNITED STATES - JULY 31: Carla L. Provost, acting chief of the U.S. Border Patrol, and Matthew T. Albence, right, executive associate director for Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement (ICE), arrive for a Senate Judiciary Committee hearing in Hart Building titled "Oversight of Immigration Enforcement and Family Reunification Efforts," on July 31, 2018. (Photo By Tom Williams/CQ Roll Call) (CQ Roll Call via AP Images)

Carla L. Provost, acting chief of the U.S. Border Patrol, and Matthew T. Albence, right, executive associate director for Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement, arrive for a Senate Judiciary Committee hearing on “Oversight of Immigration Enforcement and Family Reunification Efforts” on July 31, 2018.

Photo: Tom Williams/CQ Roll Call via AP

Manipulated Figures and Deliberate Obscurity

The number of families, children, and adults that U.S. authorities have separated during, as well as before and possibly after, the Trump administration’s so-called zero tolerance policy have remained the subject of confusion, contradicting statements, and differing definitions by the various agencies in charge. But the Amnesty report makes clear that, even with the most conservative interpretation of the data officials have made public, the total number of separations is a lot higher than previously reported.

Last September, after disavowing earlier figures, CBP told Amnesty that it had separated 6,022 “family units” between April 19 and August 15, 2018. CBP did not offer Amnesty further clarification about that data, and it did not specify how many — if any — separations occurred after Donald Trump signed an executive order supposedly putting an end to the practice on June 20. A month later, Griffey says, CBP suggested, though it did not confirm, that the “family unit” figure it had provided to the human rights organization appeared to refer to individuals who had arrived as part of a family. As the Amnesty report notes, the ambiguity appears to be motivated, at least in part, by politics. “The use of ‘family units’ to mean individual people who arrive with families, rather than their whole family groups, conflicts with the definition of the term under DHS policies, and may be intended to inflate the apparent number of families seeking to cross the U.S.-Mexico border, for political purposes,” the report notes. As The Intercept has reported, CBP is known to have manipulated statistics in the past, in order to score political points.

“They didn’t even know what that stats mean that they’re giving us,” said Griffey. “It’s ambiguous. And it’s frustrating.”

After repeatedly asking for clarification, Griffey said that CBP told him that the information would take a few weeks. “I don’t have the luxury of that. No one does. These are human beings we’re talking about,” Griffey told The Intercept. “They should be able to break that down by the month, by the number of kids, by the number of adults, etc., and then by the grounds for which they were separated. They seem very casual about the whole thing.”

The new figure provided to Amnesty conflicts with earlier numbers given by the administration, which were also incomplete and often confusing. With no clarity coming from authorities, and agencies like CBP and ORR — which took custody of separated children — offering different numbers and definitions, reporters and rights groups have been left scrambling to cobble together the total number of children impacted by the policy.

For instance, CBP said in June that 2,342 children had been separated between May 5 and June 9, while other officials said 1,995 children were separated between April and May. Combining administration statements with other figures from the government about children who were separated in the months before “zero tolerance” became official, The Intercept tallied in June that 3,700 children had been separated up to that point. But when Trump signed his executive order in June ending the policy, the official number that circulated was 2,600.

Of the unknown number of total children impacted by the policy, 2,654, including 103 under the age of 5, have qualified for the Ms L lawsuit, one of several around the issue of family separations. Of those children, 136 children, including three under the age of 5, remained in ORR custody as of late September, along with 219 children, including 12 under the age of 5, whose parents do not qualify for that class status.

To complicate the matter further, CBP is now saying that the statistics it has provided do not include what it considers “fraudulent” cases — by which it means not those lying about their status as relatives, but relatives other than parents, like grandparents or parents who do not have documentation to prove their relation to their children or whose documentation CBP was unable to verify. In fact, while the Trump administration has often referred to the trafficking of children across the border to justify its policy, DHS’s own figures suggest that traffickers account for only 0.1 percent of asylum-seekers.

MATAMOROS, MX - JUNE 28: A Honduran man and his 5-year-old son wait on the Mexican side of the Brownsville

A Honduran man and his 5-year-old son wait on the Mexican side of the Brownsville & Matamoros International Bridge after being denied entry into the U.S. on June 28, 2018 near Brownsville, Texas.

Photo: Tamir Kalifa/Getty Images

Pushing the Problem to Mexico

The Amnesty report describes an orchestrated campaign by the administration to seek “the full dismantling of the U.S. asylum system”: discouraging asylum-seekers with the threat of family separation, detaining asylum-seekers while their claims are heard in substandard conditions where they are incentivized to give up and agree to leave – and seeking to rewrite longstanding policy to make it harder for people to request asylum directly at the border.

“These are not isolated aberrations. The U.S. Department of Homeland Security (DHS) has implemented these interrelated policies in unison,” the report says. “The Trump administration is waging a deliberate campaign of human rights violations against asylum-seekers, in order to broadcast globally that the United States no longer welcomes refugees.”

The report also provides new firsthand accounts of how U.S. border officials have prevented asylum-seekers from crossing legally at ports of entry in order to make their claims, forcing them back into dangerous cities in Mexico. Mexican immigration officials described how the U.S. has enlisted Mexican authorities in that effort — encouraging them to check the status, detain, and possibly deport asylum-seekers that the Border Patrol had turned away from U.S. ports of entry.

This practice has been reported since Trump took office, but Amnesty argues that since April 2018, when “zero tolerance” began, “U.S. authorities have more systematically conducted mass illegal pushbacks of asylum-seekers along the entire U.S.-Mexico border.” Their finding comes after a DHS inspector general report last week, which also concluded that U.S. border officials had prevented asylum-seekers from presenting themselves lawfully at ports of entry, and in doing so, had pushed people to cross illegally.

In a practice they call “metering,” border officials block asylum-seekers from physically reaching U.S. soil, saying that border stations are at capacity and that the migrants seeking protection will have to wait in line or come back later. Amnesty, however, points out that overall border crossings by people without status in the U.S. have been consistent over the past five years, and that CBP had previously been able to handle large numbers of asylum-seekers. The agency has refused to provide statistics on the actual number of people supposedly flooding their gates.

The long queues and encampments on the Mexican side of the border leave asylum-seekers from Central America, Africa, and elsewhere vulnerable not just to crime and punishing heat, but also to being deported from Mexico. And according to Mexican immigration authorities quoted in the Amnesty report, CBP has implicitly encouraged them to do just that.

In June, for instance, a senior Mexican immigration official in Sonora said that “U.S. officials had requested INM [Instituto Nacional de Migración, Mexico’s immigration agency] to detain and check the papers of the asylum-seekers whom CBP was pushing back to the Mexican side.” The official said he understood that to mean that Mexico should deport people who did not have status in Mexico. Three INM officials told a lawyer in Texas that they were screening asylum-seekers at the request of CBP, and detaining non-Mexicans without visas. “Yes, it’s a collaborative program that we’re doing with the Americans,” one official said.

An INM delegate in Baja California said that CBP had asked his agency to remove an encampment on the Mexican side of the border. The official saw the request as asking Mexico to do the U.S.’s dirty work and deport the asylum-seekers.

“Everybody knows their [transit visas] are about to expire. If I go out there right now and do an immigration sweep on the plaza,” probably 40 percent of the asylum-seekers would not have legal status, the official said.

The contentious collaboration between Mexico and U.S. immigration authorities points to another goal of the Trump administration’s attempt to remake asylum policy: getting Mexico to take on the responsibility for the Central American and other refugees presenting at the southern border. The administration has announced plans to give $20 million to Mexico to pay for the deportation of some 17,000 people, and has been been pursuing a “safe third-country agreement” that would define Mexico as a safe destination for all asylum-seekers — allowing the U.S. to turn away all but Mexican asylum-seekers and force them to seek refuge in Mexico first. Rights groups are uniformly opposed to the idea, pointing out that Mexico’s asylum system is underfunded and backlogged, wrongful deportations are common, and migrants in Mexico are at risk of discrimination, exploitation by criminal groups and corrupt government officials, sexual assault, and other abuses. Nonetheless, the U.S. has pushed to negotiate the agreement, though Mexico’s newly elected president, Andrés Manuel López Obrador, appears little inclined to support it.

“The U.S. government’s abrogation of its obligations under human rights and refugee law is undermining the international framework for refugee protection,” the report concludes, “grossly violating the right to seek asylum, and is inviting a race to the bottom by other countries.”

As it has embarked on the policies and practices detailed by Amnesty, the administration has continued to publicly maintain that asylum-seekers who present themselves legally at ports of entry will not be prosecuted and will not have their families separated. As DHS Secretary Kirstjen Nielsen said in June, “They have not committed a crime by coming to the port of entry.” But at the same time, Nielsen has also said that the right to ask for asylum at ports of entry amounts to “a huge gaping loophole that we need to fix because it is so abused.” Today’s report adds to a growing mound of evidence that the administration has undertaken to fix that alleged loophole by illegal means.

Top photo: Family members embrace Leo Jeancarlo de Leon, 6, after he returned home from the U.S. on Aug. 8, 2018 near San Marcos, Guatemala. He had been separated from his mother, Lourdes de Leon, for nearly three months after they were taken into custody by the U.S. Border Patrol. Lourdes was deported and Leo was held at the Cayuga Centers in New York City until he was flown back to Guatemala with eight other children on June 7.

The post The Trump Administration Carried Out Thousands More Family Separations Than Previously Acknowledged appeared first on The Intercept.

Notre Dame Struck a Secret Deal With the Trump Administration to Deny Birth Control Coverage. Now Students Are Fighting Back.

Chissa Rivaldi never expected to be in a fight with her university over birth control. Four years ago, when she was deciding where to pursue a doctoral degree in biology, she had two key things in mind: a supportive adviser and an institution with a robust research program. She found what she was looking for in the University of Notre Dame. “This program was the best thing for me in terms of the research I wanted to do and the pace and how it incorporated the work I’d done previously,” she said.

That the university is a Catholic institution didn’t really enter the equation. Rivaldi is not Catholic, but she didn’t see that as a reason not to pursue her education there — even though she was aware of the church hierarchy’s positions on various issues, including reproductive rights and access to birth control. After all, the university actively champions its diversity and “spirit of inclusion.” And where her access to health care was concerned, there was the Affordable Care Act’s mandate that a host of core women’s health services be provided without cost sharing, including contraceptives — a coverage requirement that would apply to the insurance benefits the university offered to students.

To Rivaldi, it all seemed pretty straightforward. But that’s not how it turned out.

Instead, Notre Dame has balked at the birth control mandate, waging a protracted legal battle in an effort to exempt itself from having to provide insurance for services that it says violate its religious beliefs. The university’s efforts so far have been unsuccessful in court.

But according to a recent lawsuit, the Trump administration did an end run around the judicial system to negotiate a settlement with Notre Dame and 73 other institutions that allows them to deny birth control coverage. The suit, filed on behalf of the student-led activist group Irish 4 Reproductive Health, of which Rivaldi is a member, argues that the settlement is illegal and demonstrates flagrant disregard for due process and equal protection. The Trump administration is expected to file its answer to the lawsuit on October 11.

Rivaldi is frustrated by the university’s backdoor dealings and unrelenting quest to deny her full health coverage. “Notre Dame has this whole persona and relationship with its students,” she said. “They’re all about doing the right thing and making sure that everybody has a place … and feels comfortable. And then they’re like, ‘Well, except for this.’”

The Fight to Opt Out Without Notice

Before the ACA, women often paid higher insurance premiums while still paying out of pocket for things like contraceptives. The ACA created parity, prohibiting sex discrimination in health care and requiring that a suite of preventive services for women be covered without cost-sharing, including guaranteed access to all 18 Food and Drug Administration-approved forms of birth control.

Early on, churches were exempted from having to provide the coverage and affiliated institutions wanted the same treatment. The Obama administration refused and instead devised a workaround: A religious affiliate could opt out of providing coverage by submitting a form to its insurance company or to the federal government voicing its objection, which would then allow the insurance company or a third-party administrator to work with the government to provide birth control coverage directly.

The accommodation did not satisfy Notre Dame, which along with a number of other organizations filed a series of lawsuits claiming that having to notify anyone of its objection to birth control coverage put it in a position of serving as a conduit for the coverage it objected to, impinging on its religious freedom. Federal appellate courts roundly rejected that argument — including the 7th U.S. Circuit Court of Appeals, which considered Notre Dame’s case.

The “record contains no evidence to support the conduit theory,” the court wrote. “Although Notre Dame is the final arbiter of its religious beliefs, it is for the courts to determine whether the law actually forces Notre Dame to act in a way that would violate those beliefs. As far as we can determine … the only ‘conduit’ is between the [insurance] companies and Notre Dame students and staff; the university has stepped aside.”

The U.S. Supreme Court considered the cases in 2016 before sending them back to the lower courts. The government and the organizations should work together to find an equitable solution, the court wrote — one that accommodates the religious organizations while “at the same time ensuring” that women covered by their health plans “receive full and equal health coverage, including contraceptive coverage.”

Meanwhile, as Notre Dame was fighting in court for its chance to deny contraceptive coverage, it had already signed the accommodation form, so coverage was still being provided to those insured by Notre Dame — in all, more than 17,000 students, faculty, and staff. Graduate students like Rivaldi were still largely unaffected by the controversy.

The Supreme Court’s direction that an acceptable accommodation be found went unmet. After negotiations and a period of public comment, the Obama administration concluded that there was “no feasible” way to devise an alternate accommodation that would also ensure coverage.

The Obama-era workaround remained in place until early October 2017, when the Trump administration announced new rules that extended the ability to object to providing coverage to almost any employer based on religious belief or “moral conviction,” and made the accommodation optional — meaning that employers could simply refuse to cover contraceptives without providing any notice.

In South Bend, Indiana, the news was well received by Notre Dame’s president, Rev. John Jenkins, who said in a statement that he welcomed “this reversal” and applauded the government’s discernment that “except in the narrowest circumstances, no one should be forced to choose between living out his or her faith and complying with the law.” Before long, Jenkins would announce that the university was formally opting out of coverage.

Protests and U-Turns

Not everyone was as pleased, and on a sunny Tuesday afternoon the same month, doctoral candidate Kate Bermingham and some three dozen other members of the university community gathered outside its golden-domed main building, which houses the administration offices, for a peaceful protest. They carried signs and Bermingham held a megaphone as the group chanted its support for contraceptive coverage.

As long as Bermingham had been at Notre Dame, her birth control had been covered. Like Rivaldi, she is not Catholic, and she understood the church’s stance on contraceptives, but given the ACA’s protections, she didn’t consider that attending Notre Dame would put her access to health care in jeopardy. When she began her graduate studies six years ago, she was just 24 and still covered by her parents’ insurance (another benefit conferred by the ACA). When she aged out, she moved over to Notre Dame’s carrier.

Under the accommodation, Bermingham had two insurance cards — one for her main health insurance coverage and a second for her birth control benefits. Navigating the layers of insurance bureaucracy was a challenge (at least in part because “Notre Dame’s HR people weren’t really empowered to help us,” she said), but certainly it was better than having to figure out how to access coverage if the school opted out altogether.

“Notre Dame does not have a just claim to saddle me or other individuals it employs with the expenses of its conscience,” Bermingham told the student newspaper after the protest. “It is impossible to overlook the gendered implications of Notre Dame’s claims to be exercising religious freedom in this instance.”

But then, just days after the university announced that it would opt out of coverage, Jenkins pivoted, saying that Notre Dame would continue to provide care under the accommodation. Addressing the faculty in early November 2017, Jenkins said that the university’s interest had “never been in preventing access to those who make conscientious decisions to use contraceptives.” The university had been confused, thinking that the Trump administration rules meant the Obama-era accommodation was no longer available.

The following month, two courts blocked the Trump rules from taking effect.

Bermingham was relieved. “It was heartening to think that the administration had listened to the current community members, rather than some of its more ideological donors,” she wrote to The Intercept.

It would be a short-lived victory.

Notre Dame President Rev. John I. Jenkins speaks during the opening ceremony event for the Jimmy & Rosalynn Carter Work Project on Sunday, Aug. 26, 2018, inside the University of Notre Dame's Purcell Pavilion in South Bend, Ind. (Robert Franklin/South Bend Tribune via AP)

Notre Dame President Rev. John Jenkins speaks during the opening ceremony for the Jimmy and Rosalynn Carter Work Project at the University of Notre Dame in South Bend, Ind., on Aug. 26, 2018.

Photo: Robert Franklin/South Bend Tribune/AP

Behind Closed Doors

On February 8, Jenkins posted online a letter to the university community announcing another turnabout: Notre Dame would not be using the accommodation after all. Jenkins wrote that he had decided that the university would provide birth control coverage directly through its insurance plans — but it would require copays and deductibles for services, bar undergraduates from obtaining birth control, and only cover contraceptives deemed appropriate, what Jenkins called “simple contraceptives.”

Most of the individuals covered by Notre Dame’s insurance “have no financially feasible alternative but to rely on the university for such coverage,” Jenkins wrote. “The use of artificial contraceptives to prevent conception is contrary to Catholic teaching, though many conscientiously disagree.”

Jenkins determined that it was important and in line with the university’s values to provide health insurance, but wrote that continuing to use the accommodation meant that women would have access to contraceptives that the church vehemently dislikes — those it has determined act as “abortion-inducing drugs, which are far more gravely objectionable in Catholic teaching.”

The decision caused a considerable amount of confusion for many covered by Notre Dame’s insurance — largely because the new plan directly contravened the ACA’s no-cost, full-access birth control provision, which had been upheld by the courts despite attempts by the university and the Trump administration to dismantle it.

Moreover, the notion that certain contraceptives induce abortion, while popular among the Catholic hierarchy, doesn’t comport with science. Notre Dame has said that it will not cover the copper intrauterine device — a small, T-shaped piece of plastic wrapped in copper wire, which is toxic to sperm. While it can also be used as emergency contraception, it is among the most effective forms of birth control and is nonhormonal, which is the best solution for some women. (A spokesperson wrote in an email to The Intercept that faculty with Health Savings Accounts would also be barred from using funds to obtain a copper IUD or other reproductive services the university objects to.)

And then there was the question of what exactly constituted a “simple contraceptive” — a description without a definition. “Many of us at this point were very concerned,” Bermingham said. “There was … this very vague and nonscientific language … and we weren’t really sure what that meant, of course. What is simple for one person might cause a whole slew of hormonal, emotional, or physical problems for another.”

Rivaldi, Bermingham, and other students who officially formed Irish 4 Reproductive Health in the wake of Jenkins’s February announcement said their attempts to get clarification were frustrated by the administration. “They just weren’t telling us anything,” Rivaldi said.

Michelle Banker, a lawyer with the National Women’s Law Center, said a clue was found in Jenkins’s February statement. In announcing the change, Jenkins mentioned in passing that the university’s long-standing legal challenge to the mandate had been “settled favorably.” Considering that the Trump rules had been blocked and negotiations over a new workaround had broken down, Banker wanted to know exactly what that meant. The NWLC filed a Freedom of Information Act request and received a copy of a 10-page settlement between several federal agencies and 74 religiously affiliated institutions, negotiated by the Department of Justice and signed on October 13, 2017.

The settlement adopted language from the Trump rules — claiming that the contraceptive mandate impinged on the organizations’ religious freedoms and promising that they would never have to comply with it, at present or in the future. “We were really surprised,” Banker said. “And we were frustrated.”

Not only did the settlement violate current court orders blocking Trump’s rules, but it also thumbed its nose at the U.S. Supreme Court’s 2016 order that a solution be found that included full contraceptive coverage. “And that’s not what has happened,” Banker said. “The Affordable Care Act’s birth control benefit was designed to ensure that women could use the birth control method that works best for them, and that is a personal decision, and no university boss should be able to make that decision for anyone.”

In June, the NWLC, Americans United for the Separation of Church and State, and the Center for Reproductive Rights filed suit, arguing that the Trump administration’s secret settlement was illegal. “By their actions,” it reads, the government has “embarked on a two-tiered effort to do by fiat what the courts had refused to allow: give employers and universities a veto over the legal rights of countless women to obtain coverage of necessary health care.”

The lawsuit is currently pending before a federal district court in Indiana.

The Legacy of “Humanae Vitae”

Although Catholic doctrine bans the use of contraceptives, in the U.S. at least, that teaching is almost universally rejected.

According to Catholics for Choice, which advocates for the moral and legal right to reproductive autonomy, 99 percent of U.S. Catholics have used birth control at some point in their lives. Moreover, polling by the group reveals that 79 percent agree that health insurance policies should be required to cover birth control, while 54 percent believe that insurers should be required to offer abortion coverage. The bottom line, says the group’s vice president, Sara Hutchinson Ratcliffe, is that the hierarchy is completely out of touch with the laity.

Nonetheless, the church has tied its authority to a 50-year-old papal letter that has been deeply controversial both inside and outside the Catholic church. Known as “Humanae Vitae” (“Of Human Life”), the encyclical released in the summer of 1968 doubled down on the church’s ban on contraceptives during a time of profound social change. Three years earlier, the U.S. Supreme Court had overturned a Connecticut law that criminalized the use of birth control by married couples, concluding that it violated “marital privacy.” Just four years later, the court extended access to birth control for single people. And the delivery of “Humanae Vitae” was actually counter to what the pope’s commission on birth control had recommended; the vast majority of the bishops, theologians, and laypeople tapped to sit on the commission had voted in favor of modernizing the church’s teaching.

The decision to extend the ban has had significant consequences — and not just in the U.S., says Ratcliffe. It has negatively impacted efforts around the world to curb the spread of HIV and AIDS and to stem maternal mortality, among other things, particularly in African countries where Catholicism has been growing, according to a new report on the legacy of “Humanae Vitae.”

In the U.S, the encyclical precipitated a marked reduction in church attendance. And ultimately, Ratcliffe argues, it led the hierarchy to flex its political muscle to advocate for church policies to be recognized by the government in various ways — such as an exemption from providing birth control under the ACA, or the expansion of conscience, or refusal, clauses — as an alternate means of enforcing an unpopular policy the flock had rejected. “Time and time again, the … conservative aspects inside the Catholic hierarchy have pushed this policy beyond the ‘We think you should as a Catholic follow this,’ to ‘No, no, no; we want to impose our teaching that nobody follows anyway onto the entire world,’” she said. (In his February letter, Jenkins embraced the encyclical, recognizing it as controversial but also calling it a “thoughtful challenge to tendencies in our culture.”)

And that’s exactly what is happening at Notre Dame, Ratcliffe says. Catholic teaching leans heavily on the concept of conscience and the ability to defy church teachings if your moral compass believes they are wrong. That’s why the general concept of a conscience clause may “sound good,” Ratcliffe said. But having an institution like Notre Dame hide behind conscience in order to deny full access to health care is itself wrong. “When you put a refusal clause into place that only protects the conscience of those who want to refuse things, and especially when it comes to coverage, you have essentially violated our social justice tradition, because it means if you have the means, you can get the service.” Polling reveals that two-thirds of Catholics reject the idea that an employer should be allowed to deny access to health care based on religious beliefs.

And in negotiating the settlement agreement with Notre Dame, the Trump administration illegally signed away the rights of the thousands of people covered by the university’s policies without even consulting them, says the NWLC’s Banker. Moreover, Notre Dame students had won the right to intervene in the lawsuit the school originally filed against the Obama administration, she said, and therefore should have been part of any settlement negotiations. “They should have been told that this was happening,” she said. (Banker said the NWLC has reason to believe that the Trump administration has engaged in other, similar backroom settlements.)

Dani Green chose Notre Dame for her doctoral studies because of its academics, just like fellow Irish 4 Reproductive Health members Rivaldi and Bermingham — and with the expectation that her rights would be protected. The ongoing tumult over the school’s health insurance plans has been frustrating, confusing, and distracting, she said.

Green was raised Catholic, though she doesn’t identify that way, and she understands that the concept of conscience is an important one. “I want to advocate for the rights of all humans to make conscious, moral choices about their bodies, which includes deciding what medical services and what health care they would like to access,” she said. “Providing the best possible options for the welfare and well-being of the Notre Dame community should be in keeping, in my eyes, with Catholic teachings.”

Top photo: The main administration building and golden dome are seen on the campus of the University of Notre Dame in South Bend, Ind., on Sept. 29, 2018.

The post Notre Dame Struck a Secret Deal With the Trump Administration to Deny Birth Control Coverage. Now Students Are Fighting Back. appeared first on The Intercept.

Donald Trump, Brett Kavanaugh, and the Rule of Pampered Princelings

“Boring.” That was Donald Trump’s instant verdict on the New York Times’s blockbuster investigation into the rampant tax fraud and nepotism that undergirds his fortune. Sarah Huckabee Sanders heartily concurred, informing the White House press corps that she refused to “go through every line of a very boring, 14,000-word story.”

Welcome to a new political PR strategy premised on the shredding of the American mind — you don’t want to even try to read that interminable article; check out my Twitter feed instead, and this viral video of me saying rabid things.

The Times investigation, published as a standalone supplement on Sunday, is about as boring as a car accident. It shows in lavish detail that Trump’s creation myth is and always has been a work of fiction. No, he did not take a “very, very small” million-dollar loan from his father and use his deal-making acumen to parlay it into a $10-billion global empire, while paying the original loan back with interest.

NEW YORK CITY - DECEMBER 12:  Donald Trump and Fred Trump attend "The Art of the Deal" Book Party on December 12, 1987 at Trump Tower in New York City. (Photo by Ron Galella/WireImage)

Donald Trump and Fred Trump attend “The Art of the Deal” book party on Dec. 12, 1987 at Trump Tower in New York City.

Photo: Ron Galella/WireImage/Getty Images

Trump has been sucking on a spigot of his father’s cash nonstop since he was in diapers, becoming a millionaire by middle school. According to the Times, when all was said and done, “Mr. Trump received the equivalent today of at least $413 million from his father’s real estate empire, starting when he was a toddler and continuing to this day.” Moreover, “much of it was never repaid.” As for the rest of the mythology, not only was he spending his father’s money, he blew much of it on disastrous deal after disastrous deal. Only to be bailed out by his father’s millions time and time again.

Rather than bothering to deny any of this, Trump and his surrogates have simply spun a new creation myth. No longer the scrappy, self-made man, Trump is being reincarnated in real time as the chosen son, with he and his father acting as partners in wealth creation. “One thing the article did get right,” Sanders said, clearly reading from notes, “is it showed that the president’s father actually had a great deal of confidence in him. In fact, the president brought his father into a lot of deals and made a lot of money together. So much so that his father went on to say that ‘everything [Trump] touched turned to gold.’”

This shift is more significant than it first appears. After a couple of years of hobnobbing with Saudi monarchs and Queen Elizabeth II, the president appears ready to embrace his true identity as a scion of a dynasty who did not build his fortune by himself, but who is, instead, the product of an especially blessed family that passes a magic touch through the generations.

What makes the Times revelations more important is that they are a rare window into an even larger story about the growing political and economic role of inherited money in the United States — the culmination of decades in which a handful sons and daughters of bequeathed wealth waged a fierce and relentless battle of ideas against the very concept of equality and majority rule, all based on the same corrupting belief in their own inherent superiority.

Trump may be the highest profile of such heirs to wield political power, but he never would have gotten where he is without the ideological scaffolding carefully put in place by other scions of dynastic families — from the late John M. Olin and Richard Mellon Scaife in the ’80s and ’90s to Charles and David Koch and Rebekah Mercer today. These are the key figures who bankrolled the think tanks, financed the extreme free-market university programs, and funded the tea party shock troops that moved the Republican Party so far to the right that Trump could stomp in and grab it.

It was their project that created a fake consensus about the need for the radical deregulating of markets and dismantling of environmental protections, for lowering corporate taxes and eliminating the “death tax” — and paying for it all by dismantling so-called entitlements. It was an effort that always required harnessing the emotional power of racism (think “welfare queens”), as well as the parallel construction of a highly racialized system of mass incarceration to warehouse the poor (and profit from them, of course). The Trump presidency — never mind the economic populism he bellowed on the election trail— is the near-perfect embodiment of this agenda.

A great deal of excellent investigative journalism has gone into tracking the money behind this sprawling class war, most notably by Jane Mayer in her indispensable “Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right.” Mayer showed that though figures like the Kochs are highly ideological, the policies pushed by these wealthy families also happen to directly benefit their bottom lines. Laxer regulations, lower taxes, weaker unions, and unfettered access to international markets tend to do that.

Much less attention, however, has been paid to the implications of so much of this financing coming not just from unfathomably rich people, but people born that way. And yet it is striking that the figures at the dead center of this campaign were not Chicago school economists, nor were most of them self-made business leaders who had pulled themselves up by their bootstraps. They were, like Trump, pampered princelings whose fortunes had been handed to them by their parents.

The Koch brothers were raised in luxury and inherited Koch Industries from their father (who built his fortune constructing refineries under Stalin and Hitler). Scaife was an heir to the Gulf Oil, Alcoa Aluminum, and Mellon Banks fortunes and grew up in an estate so lavish it was populated with pet penguins. Olin took over his father’s weapons and chemicals company.

And so it goes, right down to Betsy DeVos, whose was raised by billionaire Edgar Prince and married into the Amway fortune — and who has devoted her life to dismantling public education, now from inside the Trump administration. And let’s not forget Rupert Murdoch, who inherited a chain of newspapers from his father and is in the process of handing over his media empire to his sons. Or relative newcomer Rebekah Mercer, who has chipped off a chunk of her father Robert’s hedge fund fortune to bankroll Breitbart News, among other pet projects. In short, these people are Downton Abbey lords and masters, playacting as Ayn Rand heroes.

Of course, there are some self-made billionaires, like Sheldon Adelson, who have helped bankroll the revolution on the right. But when it comes to the battle of ideas — the careful investments in pro-business academic programs at elite universities, the extreme right-wing think tanks, the strident media outlets, and now the harnessing of big data and “machine learning” in Republican political campaigns — the role of inherited wealth cannot be overstated.

UNITED STATES - NOVEMBER 06:  Donald Trump and father Fred Trump at opening of Wollman Rink.  (Photo by Dennis Caruso/NY Daily News Archive via Getty Images)

Donald Trump and his father, Fred Trump, at the opening of Wollman Rink in New York on Nov. 6, 1987.

Photo: Dennis Caruso/NY Daily News Archive via Getty Images

Self-Made Scions

It is worth pausing over this fact, because in a country with as powerful a meritocratic mythology as the United States, the heirs to great wealth often have a rather complicated relationship with their fortunes. Some blow it on yachts and vanity projects. Some become determined to show their fathers up by expanding their empires. Some give almost all of their wealth to charity. Some hide it from everyone they know. An all-too-rare few try to use their wealth to build a fairer economy and less toxic ecology.

But what must it take to pour large parts of a fortune that came to you by accident of birth into a relentless campaign of further affirmative action for the rich?

How exactly do you rationalize being lifted up by an intricate latticework of familial and social supports (tutors, prep schools, connections at the best universities, entry-level executive jobs, capital to play with), and then setting about shredding the meager safety net available to those without your good luck? How do you convince yourself that, despite having been handed so much, you are not just right but righteous in attacking the “handouts” received by single mothers working two jobs? How, when you know your own family fortune has benefited from enormous government subsidies (cheap housing loans for the Trumps, oil subsidies for the Kochs and Scaifes, direct weapons contracts for the Olins) do you begrudge paying the same tax rate as your employees?

What is the theory, the worldview, that makes all this OK? And how has it shaped the broader “free market” revolution paid for by these men — a crusade that has just achieved a new level of impunity with the ascent of Brett Kavanaugh, a product of this same world of unchecked privilege, to the Supreme Court?

You can claim to be a wealth-creator, sure. But because you didn’t actually create the wealth yourself — you inherited it — other rationales are required for why you deserve still more, while others should get far less. That’s where uglier ideas come in, about one’s inherent superiority, about a greater deservedness that apparently flows from being a member of a particularly good family, with better values, better breeding, a better religion, or as Trump so often claims, “good genes.”

And of course the even darker side is the often unspoken conviction that the people who do not share in this kind of good fortune must possess the opposite traits — they must be defective in both body and mind. This is where the Republican Party’s increasingly savage racial and gender politics merge seamlessly with its radical wealth-stratifying economic project. Convinced that people belong where they are on the economic and social ladder, the party can keep redistributing wealth upward to the dynastic families that fund their movement, while kicking the ladder out of the way for those reaching for the lower rungs.

In this context, the “losers” (Trump’s favorite insult, aimed disproportionately at the nonwhite and non-male), can not only be stripped of food stamps and health care and left for more than a year without roofs in Puerto Rico, but are also acceptable targets for all kinds of degradations, whether having their children caged in desert internment camps, or having their experiences of sexual assault mocked in open arenas.

The latter part of this equation is what Trump is offering to his base: Their birth will never reward them with anything like the hundreds of millions showered on the Trumps. But they are being invited to share in their own, albeit more modest, birthright entitlements as white, middle-class Americans. They are being invited to be on the winning team, “taking our country back” from any and all invaders and threats, from immigrants taking “our” jobs to women bearing damaging stories against “our” sons.

That is the grand bargain: Trump gets to fully claim his inheritance as a scion of wealth and his base gets to claim their inheritance as white citizens of a Christian, patriarchal nation. Oh, and like the royal families with whom he is so enamored, Trump will reward his loyal subjects by putting on an endless stream of entertaining shows and performances. He hasn’t gotten his military parade yet, but think of Trump’s ritualistic rallies and never-off reality show as crasser versions of royal pomp and palace intrigues. The divine right of kings has been replaced by the divine right of wealth — and it looks almost exactly the same.

None of this should be surprising. Any system marked by sharp inequality and injustice requires a narrative of justification. Colonial savagery and land theft required the doctrine of discovery, manifest destiny, terra nullius, and other expressions of Christian and European supremacy. The transatlantic slave trade, similarly, demanded an intellectual and legal system built on white supremacy and “scientific” racism. Patriarchy and the subjugation of women required an architecture of yet more pseudoscientific theories about female intellectual inferiority and emotionality.

Without these theories — and the lawyers, scientists, and other experts who stepped forward to give them credence — the injustices of all these systems would have been untenable. Our current system of ever more grotesque inequalities is no different. The mythology of the self-made elite once did the trick of justifying the United States’ wealth gap and threadbare safety net.

The ultrarich in the United States have long insisted that they built their empires with sweat and smarts, unlike their aristocratic brethren in Britain and France, and therefore deserve them more. Central to this story was the idea that anyone with smarts and drive could do the same, since there was no entrenched class system stopping them. (In the Trumpian version of this story, you could be just like him if you paid up for his how-to-get-rich books and fraudulent “university” while studying back episodes of “The Apprentice”).

“We like to pretend that no such thing as a ruling class has ever darkened an American shore or danced by the light of an American moon,” former Harper’s editor Lewis Lapham once remarked.

This was never true. The American political system began as a protection racket for propertied white men, granting inalienable rights to a minority at the direct expense of enslaved Africans and women. Serious proposals to level the playing field — from a truly integrated public school system to fair wages for domestic work — were squashed again and again.

Meanwhile, like Trump himself, many of the hypersuccessful men who proudly wear the mantle of being “self-made” are in profound denial about how much help they received from their family and social networks. Kavanaugh, a member of the American elite, if not the ultrarich, is a case in point. During the Senate hearings, he snarled that he got into Yale Law School by “busting my tail,” insisting “I had no connections there.” No connections except that his grandfather went to Yale, which means that Kavanaugh very likely didn’t get in only because he managed to do his homework with a piercing hangover, but also because he was a prime candidate for a “legacy” admittance.

Brett_Kavanaugh_Yale_Yearbook-WHITEHOUSE-RELEASE-1539185663

An excerpt from Brett Kavanaugh’s Yale yearbook. Some personal information has been redacted for privacy.

Image: White House released

The truth is that many children of elite families enjoy all kinds of unacknowledged protections that make failure a herculean effort. In childhood, bad grades are fixed with expensive tutoring (and, if necessarily, remedial boarding or military schools.) At top Ivy League universities, rampant grade inflation is a poorly kept secret, with wealthy students frequently lodging successful grievances against professors and graduate students who dare give them anything less than an “A,” no matter how mediocre their work. In adulthood, bad business bets are backstopped with family money and connections. On Wall Street, it’s the government that steps in to bail out reckless bets since chances are that your workplace is too big to fail.

None of this is to say that the very wealthy are lazy or lead lives free of pain. Many work nonstop (as do the working poor, under unimaginably harder conditions). Moreover, elite institutions — prep schools, fraternities, secret societies — tend to build in their own brutal hazing rituals. Top corporate law firms and investment banks put new recruits through grueling hours and ruthlessly pit them against one another for bonuses and promotions.

Inside families with great fortunes at stake, siblings are similarly pitted against each other for control of the greatest prizes. So Trump fashioned himself as a “killer” to beat out his older brother Fred for his father’s favor. And, as Mayer reported, the three younger Koch brothers staged a mock trial accusing their oldest brother (also named Fred) of being gay so that he would relinquish his claim to the family fortune.

All of this is part of a time-tested process of training and indoctrination designed to toughen up the soft sons of privilege so they are ready to be as cutthroat as their fathers. But surviving such elite trials often convinces people like Donald Trump, Charles Koch, and Brett Kavanaugh that they are where they are solely because they worked their respective tails off.

Citadel Investment Group President and Chief Executive Officer Kenneth Griffin testifies on Capitol Hill in Washington, Thursday, Nov. 13, 2008, before the House Oversight and Government Reform hearing on "Hedge Funds and the Financial Market". (AP Photo/Kevin Wolf)

Citadel Investment Group President and CEO Kenneth Griffin testifies on Capitol Hill in Washington, D.C., on Nov. 13, 2008, before the House Oversight and Government Reform hearing on “Hedge Funds and the Financial Market.”

Photo: Kevin Wolf/AP

Failure Is for Other People

It reminds me of a talk I once heard by Kenneth Griffin, a billionaire hedge fund manager in Chicago, who at the time was in a state of distress about an Obama plan to increase taxes. Speaking to a group of elite college students about his rise to enormous wealth, he told a story about how his family had given him some capital to start a hedge fund in his Harvard dorm room (where so many rags-to-riches stories seem to begin), complete with a satellite hook-up to receive real-time market data. He confessed to the students that this first foray into trading had not gone well, that he had in fact lost a lot of other people’s money. Fortunately, however, he was entrusted with still more start-up capital, was able to start again, and that’s where he began his rise to being what he is today: the richest man in Illinois.

Asked by a student how he got through the tough times, this “self-made” billionaire replied: “America is incredibly forgiving of failure.”

What struck me most at the time was that Griffin seemed to genuinely believe what he was saying — that a country in which millions are one illness away from homelessness, and which at that time imprisoned 2.3 million people, “is incredibly forgiving of failure.” He was convinced that his personal experience of being repeatedly caught by his own personal family safety net was a universal American experience — and that let him fight to lower his tax bill and further shred the safety net with what appeared to be a clear conscience.

Chuck Collins, an heir to a family fortune who gave it up in order to fight entrenched inequality, recently wrote about the moral risks that accrue when so many powerful people, from Trump to Kavanaugh, deceive themselves about how much they were helped. “If I believe that success is based entirely on personal grit,” he wrote for CNN, “then why should I pay taxes so that someone else can have a comparable head start to mine — with early childhood education, access to quality health care and mental health services, and low-cost higher education?”

Why indeed? And why support any form of affirmative action when you are in denial about all the extra support that landed you where you are today?

There are other moral hazards that result from this denial as well — perils that put whole societies at risk when these overconfident men assume power. Because if your experience is that every time you stumble, you recover as if by magic, then you will be much more prone to upping the ante next time, convinced that you and yours will surely be alright in the end, as you have always been.

So why not refuse to regulate derivatives? The market will self-correct. Why not pour that toxic waste into a river? The solution to pollution is dilution, right? And why not invade Iraq? It will surely be a “cakewalk.” And while we’re at it, why not ignore decade after decade of warnings from climate scientists telling us that if we didn’t get emissions under control, we will run out of time? Come on, don’t be so negative, surely technology will save us, it certainly has been great for Uber.

I gave a TED talk about this mentality a decade age called “Addicted to Risk,” and if you want to know where it all leads, have a glance at the harrowing new U.N. Intergovernmental Panel on Climate Change report, released earlier this week.

Because now the whole thing is unraveling. The reckless bets are coming due — economically and ecologically. And the self-made mythology is unraveling too. That’s why Trump isn’t bothering to defend himself — it’s all gotten too obvious to deny. Too much money is pooling at the highest economic echelons. Single families — like the Waltons and the Cargills — are hogging too many spots on the Forbes 400 list.

Back in 2012, United for a Fair Economy published a report on the role of inherited wealth on that list. It found that “40 percent of the Forbes 400 list inherited a sizable asset from a family member or spouse, and over 20 percent inherited sufficient wealth to make the list. In addition, 17 percent of the Forbes 400 have family members on the list.”

There are signs that the role of inherited wealth has only increased since then. That’s because the assets held by the already rich — in real estate, the stock market, and in direct corporate profits — are growing at a significantly higher rate than the overall economy and the salaries of working people, which are stagnating.

This was one of the key insights of Thomas Piketty’s “Capital in the Twenty-First Century”:

Whenever the rate of return on capital is significantly and durably higher than the growth rate of the economy, it is all but inevitable that inheritance (of fortunes accumulated in the past) predominates over saving (wealth accumulated in the present). … Wealth originating in the past automatically grows more rapidly, even without labour, than wealth stemming from work, which can be saved.

This is compounded by the successful crusade by the scions of the ultrarich to lower corporate and income taxes and chip away at the “death tax,” which once significantly shrunk the fortunes passed from one generation to the next. And then, as Collins points out, there is the complicity and creativity of tax lawyers and accounting firms who have grown ever more adept at hiding trillions in wealth from a scandalously complicit IRS. (Collins calls it the “dynasty protection racket.”)

Under Trump, who has profited so handsomely from all of these rackets, the pots of wealth being passed down within families are set to overflow even further. Among the many handouts in Trump’s tax law, the first $22.4 million gifted from parents to children is exempt from the estate tax. (“Final Tax Bill Includes Huge Estate Tax Win for the Rich,” announced a euphoric Forbes headline last December.)

Is it any surprise that, as the economy changes — with the very idea of meritocracy under sustained assault both by the new tech monopolies that quash competition and the increasing power of dynastic wealth — those uglier stories that rationalize untenable levels of inequality are roaring to the surface?

NEW YORK - NOVEMBER 11: 60 MINUTES Correspondent  Lesley Stahl interviews President-elect Donald J. Trump and his family shown here from left: Tiffany Trump, Donald Trump, Jr., Donald Trump, Eric Trump, Melania Trump, Ivanka Trump at his Manhattan home Friday afternoon (November 11, 2016).  The sit-down was his first post-election interview for television and will be broadcast on 60 MINUTES Sunday, Nov. 13 (7;00-8:00PM, ET/PT) on the CBS Television  Network. Image is a screen grab. (Photo by CBS via Getty Images)

“60 Minutes” correspondent Lesley Stahl interviews President-elect Donald J. Trump and his family at his Manhattan home on Nov. 11, 2016.

Photo: CBS via Getty Images

Wealth and Destiny

These are the theories that hold that the wealthy and powerful deserve their lopsided share not primarily because of their hard work but because of their identity — the family they were born into, their (imagined) superior genetics, their supposedly elevated values, and of course, their race, religion, and gender. Inside the logic of this story, success does not come because you were showered with privileges. You were showered with privileges because you are better.

A few years back, Jamie Johnson, one of the heirs to the Johnson & Johnson fortune, interviewed other members of his wealthy cohort for the film “Born Rich” and its sequel, “The One Percent.” He observed that while he was struggling to understand why he deserved to be handed so much money just because he had managed to turn 21, “For some people I talked to, inequality is easy to understand. It’s preordained.”

People like Roy O. Martin III, president and CEO of the Louisiana-based Roy O. Martin Lumber Company, which was previously headed by his father and grandfather. Martin told Johnson, “If you inherit money, you feel ‘why did I get all this and somebody else is poor?’ Well, God has a reason for it. God’s never going to give you something you can’t handle.” Being rich, he went on, means that “God has given you a lot of assets to be stewards of.”

Collins told me that he has encountered these supremacist theories frequently in the moneyed circles he grew up in and in conversations around the estate tax — “and it’s happening more as we become more unequal.” In some cases, people are still genuinely convinced that they worked for all the money they have. But where this is obviously not the case, different justifications are emerging. “They responded that ‘our family is deserving. We have better values that we have passed on or a different work ethic.’” And sometimes, Collins told me, this self-justification slips into more dangerous territory. “You hear that this is all genetics. Or that ‘our health is better’ or ‘we have more energy.’”

Only ideas like these can help justify a passion to avoid taxes on a pile of wealth that has been passed through four generations. You have to believe there is something inherently superior about your family. And even if it is left unsaid, you also have to believe the corollary — that there is something inherently inferior about the people who would benefit from those taxes. Just as you deserve your unearned place at the top, so others must deserve theirs at the bottom — they are “bad hombres,” come from “shit-hole countries,” and so on.  All the easier to abuse, deport, even torture.

Indeed, if you have been raised on a narrative of your own specialness and exceptionality, you may well be prone to believe that all kind of things are your divine right. You might believe that you have a right to a lifetime appointment on the Supreme Court despite never having tried a case. You might believe you have a right to become president despite having a closet full of skeletons and no history of public service.

And, in some cases, you may well feel entitled to do things to people against their will who are not in your rarefied club — whether forcing a woman to carry a pregnancy she does not choose, or grabbing women’s bodies without their consent. Or to do whatever it takes to shut her up — be it a hand over her mouth or a “catch and kill” story in the National Inquirer.

Trump’s sense of entitlement to massive amounts of inherited wealth and political power is not something his mostly middle- and working-class followers have the privilege of sharing. But that misses an important point: In boiling times like ours, supremacist thinking is contagious. When elites indulge their ugliest beliefs about their divine right to keep winning, it trickles down, giving their supporters license to assume their own imagined superior status — over anyone who seems sufficiently undefended.

This is an intensely hierarchical worldview that is completely comfortable with a minority making decisions for a majority in a rigged electoral system, just as it feels no need to reconcile two totally different visions of justice — “innocent until proven guilty” when it comes to Brett Kavanaugh’s job application and, as Trump told a gathering of police chiefs on Monday, “stop and frisk” for anyone seen as a possible criminal in Chicago (obvious code for a black person walking down the street). This is not seen as a contradiction: There are simply two classes of people — us and them, winners and losers, people deserving of rights and everyone else.

By abandoning his Horatio Alger schtick and embracing his new identity as a chosen son, the one with the golden touch, Trump is signaling that he thinks his base is ready to abandon the whole idea not just of meritocracy, but equality itself — and we should definitely pay attention.

You can see the effects of this moral degeneration at work in the president’s own family: Trump at least felt some shame about his silver spoon, which is why he built his identity, however laughably, on being a self-made man. He knew his wealth would be less impressive if he admitted how much he had inherited.

But his children feel no such compunction to lie and, much like the crown princes of oil emirates and the “princeling” spawns of top Chinese party officials, they seem to revel in their status as heirs to a throne. All came to notoriety as bit players on “The Apprentice,” and all have built their reputations solely around being “a Trump,” as if the name alone bestowed some magical powers, and they were part of their father’s capacity to turn everything he touches into gold.

So Ivanka and Jared blithely take control over large parts of the U.S. government, despite having no relevant experience and never having been elected to anything. And when Eric and Don Jr. announced last year that they would be opening a chain of boutique hotels, the name they selected was telling indeed. It would be called “Scion,” a defiant celebration of the idle heirs to dynastic families if ever there was one. It seems that the trust fund set is tired of pretending that they have earned their good fortune and are instead ready to claim it openly for what it is: a birthright.

As more and more inherited wealth is passed, tax-free, from one generation to the next, we can expect to see much more of such shamelessness.

All of this was foretold. Almost two years ago, Trump held his first television interview after the 2016 elections. It was for “60 Minutes,” and he lined up the entire family on golden, throne-like chairs. That should have been our first clue that American capitalism was entering a new stage: the Age of the Pampered Princeling.

The post Donald Trump, Brett Kavanaugh, and the Rule of Pampered Princelings appeared first on The Intercept.

Obama’s Resistance to Investigating the Bush Administration Allowed Brett Kavanaugh to Skate Onto the Supreme Court

One of Barack Obama’s first decisions after being elected president continued to haunt the country over the weekend, as Brett Kavanaugh was sworn in as the fifth hard-line conservative on the Supreme Court.

In January 2009, George W. Bush left office with an abysmal 22 percent approval rating, the lowest ever recorded. Almost everyone with anything to do with his administration was considered politically toxic.

With full Democratic control of the federal government, calls came for an investigation into the scandals of the Bush administration, including torture, mass surveillance, and war profiteering. While some called for criminal prosecutions, others wanted hearings or an independent investigation that would — at minimum — put into the public record the details of who did what and when. At the least, the argument went, Democrats could ensure that the GOP had to wear the Bush administration for years; that the officials involved in wrongdoing would be written out of polite society; and that future administrations would not revert to those practices.

Obama refused. “We need to look forward as opposed to looking backwards,” he said famously on January 11, 2009, days before he took office.

Had he looked forward far enough, he would have seen one of the chief boosters of the torture program elevated to CIA director, and a Bush administration attorney with complicity in a wide array of its most controversial programs lifted up to the U.S. Supreme Court.

Kavanaugh’s rise to the Supreme Court is the result of elite institutional failure. The judge was sworn in by Chief Justice John Roberts on Saturday evening, even as demonstrators banged on the doors of the court. “The road that led us here has been bitter, angry, and partisan,” said Minority Leader Sen. Chuck Schumer on the Senate floor after the vote, “steeped in hypocrisy and hyperbole and resentment and outrage.”

Three allegations of sexual assault — the first was broken by The Intercept — and and FBI investigation weren’t enough to sink Kavanaugh. Nor were indications of perjurious testimony — in part because a trove of documents relating to Kavanaugh’s time with the Bush administration that is currently being analyzed by the National Archives, including emails and memos about surveillance, torture, and Kavanaugh’s involvement with a hacking scandal, won’t be released until the end of October.

At least 100,000 documents relating to Kavanaugh’s involvement in developing policy during his time as associate counsel to the president from 2001 to 2003, and his time as staff secretary from 2003 to 2006, have been withheld by the Trump administration, citing executive privilege. But the National Archives revealed, in response to a lawsuit from the Electronic Privacy Information Center, that there are hundreds of emails in the separate, 300,000 document cache that the agency is reviewing for publication. “The communication to EPIC revealed that Kavanaugh sent 11 e-mails to John Yoo, the architect of warrantless wiretapping; 227 e-mails about ‘surveillance’ programs and the ‘Patriot Act;’ and 119 e-mails concerning ‘CAPPS II’ (passenger profiling), ‘Fusion Centers’ (government surveillance centers), and the Privacy Act,” EPIC said in a statement announcing the revelation.

With proper public understanding of Kavanaugh’s role in the unpopular policies of of the Bush White House, that role may have been disqualifying by itself.

Bush first proposed Kavanaugh for a seat on the D.C. Circuit in 2003. His nomination was part of the same game being played today, and that has been played for decades: The right wing in America has steadily eroded any liberal power on the bench since Ronald Reagan, and the Democrats have been powerless to do much about it. After a lengthy three-year process, punctuated by a number of harsh statements on the nomination from Democratic senators, Kavanaugh was confirmed to the bench. Sen. Patrick Leahy referred to the right-wing history of court-packing a month later, while discussing the nominations of four other judges, including Neil Gorsuch. “In the important D.C. Circuit,” Leahy said on the Senate floor, “the confirmation of Brett Kavanaugh was the culmination the Republicans’ decade-long attempt to pack the D.C. Circuit that began with the stalling of Merrick Garland’s nomination in 1996.”

Both Kavanaugh’s time with the Bush administration and his involvement with the administration’s controversial policies have been a constant undercurrent to the Senate hearings on his nomination, but he largely escaped serious scrutiny on that record — even though Kavanaugh continued to advocate for the worst of the security state from the bench. Senate Democrats expressed their skepticism over Kavanaugh’s dissembling about the policies; Kavanaugh told members of the Judiciary Committee in September that he was “not read into that program, not involved in crafting that program nor crafting the legal justifications for that program.” In a written response to a question posed by Sen. Dianne Feinstein on his involvement in the program, Kavanaugh dispensed with the vague answers and made his position clear. “I became aware of the program and the memos when they were publicly disclosed in news reports in 2004,” wrote Kavanaugh.

Just by looking at the National Arhives description of the records, it appears clear that Kavanaugh was involved in the planning of the Bush-era surveillance rules which led to warrantless wiretapping being codified into the American national security state. Further, Kavanaugh’s alleged involvement in Bush-era judicial subterfuge by Republican hatchet man Manuel Miranda is still an open question, though Kavanaugh has repeatedly denied having any involvement in funneling the stolen information Miranda hacked from Senate Democrats in 2003 to the Bush administration. The Bush Justice Department declined to prosecute Miranda, and questions about Kavanaugh’s level of cooperation will remain until at least the end of October.

Over the past decade, the political world has done everything possible to minimize and forget the crimes of the early to mid-2000s. The effect has been felt ever since. Members of the Bush administration and their hangers-on have spent their time working diligently to return to good standing in the social and professional worlds they once dominated in Washington and New York. Allowing them to reintegrate into elite society has had almost as catastrophic an effect on American politics as Donald Trump.

It’s not just Kavanaugh. The confirmation of Gina Haspel, an admitted proponent of torture who ran a Thailand black site in 2002 — a fact that became a minor issue before the Senate sent her back to Langley to run the CIA — was a perfect example of the insufficiency of the American political system to properly deal with the Bush regime toppling established norms around war and detainees.

Complaints from the left about the image rehabilitation of the Bushes have largely been met with derision. Esquire writer Charlie Pierce, who referred to John McCain’s funeral as a “council of war” for the resistance — fired off a riposte to his critics which sums up the liberal view of the need for a more genteel version of corporate dominance, regressive Christianity, and endless war.

“Am a touch sick of the lefty hot takes by which those of us who were moved to a kind of optimism by the funeral Saturday have forgotten the crimes of the Bush administration and the crime that was Vietnam,” tweeted Pierce. “House is on fire. Don’t care who brings a hose.”

Bush’s hose, it turns out, has gasoline in it. The former president spent the weeks leading to the confirmation vote publicly defending Kavanaugh from charges of sexual assault and misconduct, and urging GOP senators who were wavering to support the nominee. He called his friend Sen. Susan Collins three times, the senator from Maine has said.

Kavanaugh’s career should have ended at the D.C. District Court of Appeals. His new role as Supreme Court justice is what happens when democratic societies don’t hold criminals in the government accountable for their actions. At a bare minimum, everyone involved with the Bush administration’s war in Iraq and post-9/11 torture and detainee programs should have been thoroughly discredited and rejected from polite society. That they weren’t may end up being one of the defining moments in the 21st century.

Top photo: President-elect Barack Obama, left, walks with President George W. Bush during a welcome ceremony at the White House in Washington, D.C., Nov. 11, 2008.

The post Obama’s Resistance to Investigating the Bush Administration Allowed Brett Kavanaugh to Skate Onto the Supreme Court appeared first on The Intercept.

Yale Legacy Admission Brett Kavanaugh Is Now the Swing Vote on Affirmative Action at Universities

During his Senate Judiciary Committee testimony, new Supreme Court Justice Brett Kavanaugh took obvious pride in getting into Yale, citing it as evidence that he didn’t have a drinking problem. “I got into Yale Law School. That’s the No. 1 law school in the country. I had no connections there. I got there by busting my tail in college.”

But, as with much of his testimony, this wasn’t exactly true: Kavanaugh’s grandfather had gone to Yale for undergrad, just as Kavanaugh later did, making him a legacy student. And admission to an undergraduate institution can more than double your chance of getting into that institution’s graduate schools. Getting into college, especially Ivy League schools, is traditionally as much a matter of who you know as it is what you know.

For this and other long-recognized structural reasons, it has historically been more difficult for minority applicants to get accepted into institutions of higher learning. The remedy for this society-wide disadvantage became known as affirmative action — the idea that admissions officers would affirmatively work to consider the relative advantages of wealthier, whiter candidates against less affluent, browner candidates, in order to level the playing field.

The practice of considering race in admissions processes now faces a new legal challenge, and with Kavanaugh on the bench, the Supreme Court could be poised to strike it down. The Wall Street Journal editorial page on Monday anticipated just that outcome, if Chief Justice John Roberts decides to go for it:

With the politics surrounding the Court so polarized, [Roberts] might be more cautious than warranted on issues where the Court needs to clear up its own indecision. One of those issues is the constitutionality of racial preferences, about which former Justice Anthony Kennedy continued the legal hair-splitting of Sandra Day O’Connor. Justice Kavanaugh is likely to join the other four conservatives.

That the blow would be dealt by a legacy Yale admission from Georgetown Preparatory School is perhaps as fitting as it is ironic.

The elite hold over the American college admission process has slightly lessened in past decades, provoking a backlash from conservatives who claim that considering race in the admissions review process is a form of discrimination. One of the leading voices in that fight is Edward Blum, a conservative political activist who is most famous for his 2016 attempt to dismantle affirmative action in Fisher v. University of Texas. That effort flopped, losing 7-1, in part because the plaintiff objectively and demonstrably did not meet the admission standards of the school she claimed she was entitled to attend.

On October 15, Blum will be back, this time with a potential Supreme Court majority. A group called Students for Fair Admissions, which Blum founded, go to trial in Massachusetts District Court claiming that Harvard University is discriminating against Asian-American applicants to the school.

In late September, Jeff Sessions’s Justice Department brought its own suit against Yale, claiming the university’s admissions policies unfairly disadvantage whites.

There’s a lot of money behind Blum’s efforts. The SFFA is funded primarily by right wing dark money filtered through groups like Donors Trust, a 501(c)3 organization that benefits right wing charities by bundling donations from the Koch brothers and the Mercer family, among other. Lawson Bader, the president of Donors Trust, told The Intercept in an email that SFFA is just one of the many organizations his group funds. “We have made over $1 billion in grants to nearly 2,000 such organizations focused on social welfare, religion, health, medicine, education, public policy, the environment, economics, governance, foreign relations, and arts and culture,” said Bader.

According to filings reviewed by The Intercept, at its founding in 2015, SFFA received $500,000 from the Project on Fair Representation, or POFR, another Blum foundation. In 2015 and 2014, SFFA received a total of $699,350 from the POFR; in 2016, Donor’s Trust gave to SFFA directly, pouring some $250,000 into the organization.

SFFA cites the low “personal rating” scores Harvard gives to Asian-American applicants to demonstrate that Harvard’s admissions process discriminates against them. The ratings, which range from 1 to 6 in descending order (1 is “outstanding,” while 6 is “worrisome”), consider “humor, sensitivity, grit, leadership, integrity, helpfulness, courage, kindness and many other qualities.” Asian-American students have consistently scored on the lower end, the suit claims.

More broadly, the case challenges the constitutionality of using race as a factor in admissions altogether. Although racial quotas have long been deemed unconstitutional, the limited use of race in the admissions process alongside race-neutral factors has been upheld by a number of Supreme Court cases — most recently, Fisher v. University of Texas. In the Fisher case, the court held that the University of Texas had a “compelling interest” in considering race, satisfying the standard of scrutiny required to establish whether the government’s raced-based interventions are constitutional.

It’s important to separate those two prongs of the complaint in order to parse out the question of motive, explained Nicole Gon Ochi, an attorney with Asian Americans Advancing Justice, or AAAJ, a group which filed an amicus brief with Harvard in the lawsuit. If Harvard is giving an advantage to white applicants over Asian American applicants, that’s unrelated to the Constitutionality of affirmative action — though Blum has tried to muddy the waters. “These two distinct issues have been intentionally conflated by Edward Blum to drive a wedge between Asian Americans and other communities of color in a play that will ultimately benefit the white majority if it is successful,” Ochi told The Intercept.

Kavanaugh provided legal counsel to President George W. Bush during the 2000 Florida recount litigation, and was in the White House when the administration pushed against the University Michigan’s use of race as a factor in admissions. He declined to comment on affirmative action at his hearing. “As a lawyer in the White House, any views I expressed would have been in keeping with trying to advance President Bush’s legal and policy agenda. As a judge and a nominee, your question implicates issues that remain in dispute and that may come before me as a judge. As I discussed at the hearing, and in keeping with nominee precedent, it would be improper for me as a sitting judge and a nominee to comment on cases or issues that might come before me,” he said.

He was later asked why it was okay for him to take pride in his ability to hire diverse clerks, but universities ought to be barred from doing the same thing.

“I am proud of my record of hiring the best to serve as my law clerks — including women and minorities — and of my efforts to promote diversity. The extent to which public universities may consider certain factors as admissions criteria is the subject of precedent and ongoing litigation,” he said.

Kavanaugh, in his follow-up hearing sparked by sexual assault allegations, was much less reticent to express opinions, blasting Senate Democrats on the committee and decrying what he called a conspiracy against him to exact “revenge on behalf of the Clintons.” He noted that “what goes around comes around,” denouncing the “special interests” who he said were engaged in the conspiracy. The policy of affirmative action is most closely associated with Democrats — or “you people,” as Kavanaugh referred to them at his hearing — which suggests he is unlikely to look dispassionately at the case.

“If you have Kavanaugh on the Supreme Court replacing Kennedy, then yeah, I do think” Harvard will lose the case, said Penn Law professor Kermit Roosevelt. “Not because Harvard was doing anything wrong under current law, but because the Supreme Court is going to change its interpretation.”

Kavanaugh was pressed by Sen. Cory Booker, D-N.J., during the confirmation process on a number of comments he made that suggest he opposes affirmative action in admissions, but he deflected those questions.

CAMBRIDGE, MA - AUGUST 30: Pedestrians walk past a Harvard University building on August 30, 2018 in Cambridge, Massachusetts. The U.S. Justice Department sided with Asian-Americans suing Harvard over admissions policy.  (Photo by Scott Eisen/Getty Images)

Pedestrians walk past a Harvard University building on Aug. 30, 2018 in Cambridge, Mass.

Photo: Scott Eisen/Getty Images

Jennifer Holmes is a member of the NAACP’s Legal Defense Fund team working on the case on behalf of a coalition of Harvard alumni and students. In an interview with The Intercept, she pointed out that SFFA and Blum have no history of supporting or advocating for Asian American students. Blum’s history of fighting anti-discrimination laws, on the other hand, provides more of a window into the reasons for SFFA bringing the suit, said Holmes. “They want to undermine affirmative action,” Holmes said. “And it’s important that those motivations are laid bare.”

The lawsuit is expected to go to trial on October 15, and the Justice Department has joined SFFA’s side in the litigation. That’s in contrast to the Obama administration, which backed the University of Texas in the Fisher case. “No American should be denied admission to school because of their race,” said Attorney General Jeff Sessions in a statement that was highly critical of Harvard’s admission process.

In an email, general counsel for the American Council on Education, Pete McDonough, said Blum’s strategy would force universities and colleges across the country to completely revamp their admissions processes. According to McDonough, if SFFA wins out in the lawsuit, schools would be forced to use a uniform set of requirements for admission which won’t allow for considerations of race. “SFFA, in substance, asks the Court to require fundamental changes to university admissions processes, and to mandate a more mechanical process in which educators’ ability to choose which academic and other criteria they wish to use, weigh, and apply play next to no role,” said McDonough.

Peter Wood is president of the National Association of Scholars, a right-wing advocacy group that concentrates on education, and which filed an amicus brief in the Harvard case on SFFA’s behalf. He told The Intercept that his organization provided support to Blum’s case because of NAS’s 30-year-long commitment to resisting racial considerations in student admissions. “From our founding, we’ve opposed racial preferences in higher education,” said Wood.

“Supporting the suit by Asian students against Harvard was an easy decision for us,” Wood told The Intercept. “We believe the law should be color blind — students should be assessed on their abilities.”

Blum agrees. The SFFA’s case, in his mind, is part of a history of American activism. “The lawsuit’s goal is to reclaim the cornerstone of the civil rights movement,” said Blum, “which is the proposition that your race and ethnicity should not be used to help you or harm you in your life’s endeavors.”

But affirmative action is not aimed at disadvantaging white students and benefiting minorities. Rather, the intent is to create an equal playing field for groups that have been hindered both historically and currently. And beyond that historical course correction, there’s an argument to be made for affirmative action and any laws that provide ways to diversify the student body: it’s good for everyone. Indeed, one criticism of affirmative action from the left is that its main purpose, from a university’s perspective, is not to benefit the minority applicants themselves but to provide the white students with a rich and diverse experience, while they remain sheltered in an elite environment. Learning in a diverse environment has been shown to provide students with better educational outcomes and better outcomes in the workforce. Those outcomes are part of the reason, Holmes said, that her clients are supporting Harvard in the case. “Harvard is an important place to learn alongside people of different backgrounds,” said the NAACP’s Holmes.

Blum is perhaps best known for his involvement in the Fisher case, where plaintiff Abigail Fisher — backed by Blum’s non-profit organization the Project on Fair Representation, or POFR — contended that her race was the determining factor preventing her admission to the school. However, it was Fisher’s subpar grades and test scores that proved the deciding factor in her rejection, not her race.  A Supreme Court ruling in 2016 rejected Fisher’s argument, upholding the university’s right to use race as one of the considerations for admission.

Blum’s litigation has a pattern of aiming for decisions that would result in negative consequences for minorities, particularly blacks and Hispanics. He brought Shelby County v. Holder to the Supreme Court in 2013, where a ruling in Blum’s favor vacated a major piece of the Voting Rights Act. The main beneficiaries of overturning Harvard’s application process will be white applicants, according to experts consulted by Harvard, who found that their numbers in the student body would increase the most were the rules changed. “The laws he’s attacked are ones that were conceived of to remedy former negative outcomes for blacks and, in some places, Hispanics,” said Holmes.

Maybe that’s why Blum doesn’t want to testify — taking the focus off of the plaintiffs and placing it onto the conservative activist might imperil the case. Blum’s attorneys filed a motion to keep him from being called to testify in the case, claiming that “Mr. Blum has nothing to add.” Blum’s name was not on the witness list provided by Harvard on Monday.

Describing his past, his opinions, and his involvement with the organization as irrelevant to the lawsuit, Blum dismissed the possibility of testifying in the lawsuit in an email to The Intercept. “My role in this case has no bearing on the evidence SFFA has assembled in the last 3 1/2 years,” said Blum.

That makes sense, said Oren Nimni, an attorney with the Lawyers’ Committee for Civil Rights and Economic Justice and the legal editor for Current Affairs Magazine, if only from a political point of view. It’s well documented that Blum has founded groups that focus on attacking affirmative action; exposing that connection in open court could be damaging. “It’s not to his advantage if he’s seen as the architect of the case,” said Nimni, arguing that Blum learned from his loss in the Texas case. “He probably, and rightly, assumes this is harder to call foul on.”

 

Top photo: Students attend the Harvard University’s 367th Commencement exercises at Harvard University on May 24, 2018 in Cambridge, Mass.

The post Yale Legacy Admission Brett Kavanaugh Is Now the Swing Vote on Affirmative Action at Universities appeared first on The Intercept.

Immigrant Detainee Called ICE Help Line Before Killing Himself in Isolation Cell

The young Panamanian man used to tell his fellow immigration detainees that he was the reincarnation of Julius Caesar. Sometimes he hallucinated voices instructing him to kill himself. Things got so bad that Jeancarlo Alfonso Jimenez-Joseph, a 27-year-old ICE detainee, called a federal hotline on April 4, 2017, asking for help.

Documents reviewed by The Intercept show that Jimenez-Joseph repeatedly brought his suicidal thoughts to the attention of officials at the rural Stewart Detention Center in Georgia, a private Immigration and Customs Enforcement detention center run by CoreCivic.

Just six weeks after his call to ICE’s help line, Jimenez-Joseph killed himself in a tiny solitary confinement cell where he had been held for 19 days.

A description of Jimenez-Joseph’s complaint to the ICE hotline, which has not been previously reported on, was obtained by The Intercept through a Freedom of Information Act request. The record appeared in a brief accounting of important moments in the timeline leading up to Jimenez-Joseph’s suicide compiled by the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, which looks into complaints regarding ICE’s activities. The record of Jimenez-Joseph’s call adds yet another key point in the grim chronology of his last months alive.

For critics of ICE’s treatment of detainees, Jimenez-Joseph’s path to suicide in a tiny isolation cell has become one of the highest profile examples of the negligence and cruelty they say pervades the agency’s heavily privatized detention network. They allege that CoreCivic subjects detainees at its Georgia facility to an array of indignities, including forced work, a violent atmosphere, and highly restricted access to lawyers. Advocates say Jimenez-Joseph’s case also highlights the facility’s excessive use of solitary confinement, widely known to be a form of torture.

In 2013, ICE adopted a policy that put new restrictions on placing detainees with a history of mental illness in solitary confinement. The policy requires that such detainees be removed from isolation if their mental state appears to be deteriorating.

Critics say that CoreCivic’s Stewart facility has flouted ICE’s own internal standards. And, earlier this year, another detainee killed himself at the Stewart Detention Center, under conditions that parallel Jimenez-Joseph’s death. Efraín Romero de la Rosa, a Mexican national, was set to be deported. He had previously been diagnosed with schizophrenia, according to health documents seen by The Intercept, and killed himself after spending 21 days in solitary confinement.

“As we have documented over the years, Stewart has used solitary in an abusive and retributive manner and as a first resort in response to individuals in a fragile mental health state,” Azadeh Shahshahani, legal and advocacy director at Project South, told The Intercept in April. “It is time for a congressional investigation of solitary at Stewart, in addition to the deplorable conditions at the facility as a whole.”

Beautiful-Smile-1539007514

Jeancarlo Alfonso Jimenez-Joseph.

Photo: Karina Jimenez

A Cry for Help

Shortly before his 11th birthday, Jimenez-Joseph’s mother brought him from Panama to the United States, and the family settled for a time in Kansas. After receiving legal status under the Deferred Action for Childhood Arrivals program, or DACA, Jimenez-Joseph studied architecture at a community college with ambitions to one day manage his own business.

In October 2016, Jimenez-Joseph suffered a traumatic head injury while skateboarding, which appeared to trigger months of psychological distress, according to ICE heath records. Shortly after the accident, authorities in Wake County, North Carolina, sought to involuntarily commit Jimenez-Joseph for schizophrenia and severe anxiety.

A few months later, Jimenez-Joseph was stripped of his DACA status after being charged with stealing a car in Charlotte, North Carolina. Prior to that, Jimenez-Joseph had been convicted of several misdemeanors. Local authorities subsequently transferred Jimenez-Joseph into the custody of ICE, which sent him to its privately operated Stewart Detention Center in Georgia. Upon his arrival, Jimenez-Joseph told a nurse that he had attempted suicide in the past and continued to think about harming himself. When the nurse asked by what method he would do this, Jimenez-Joseph provided a one-word answer: hanging.

It is unclear exactly what he conveyed in his complaint to the help line a few weeks later, on April 4. But the existence of the call shows that ICE officials far beyond Stewart Detention Center, or even the agency’s broader region, had also been warned of Jimenez-Joseph’s deteriorating psychological condition. Additionally, the log suggests that Jimenez-Joseph felt his situation had become serious enough to elevate his concerns above management at the CoreCivic-run facility.

“This was a cry for help,” said Andrew Free, a Nashville-based immigration attorney who represents Jimenez-Joseph’s family.

ICE’s central office took at least some note of the call: It prompted ICE authorities to contact the ICE regional headquarters in Atlanta to check on how Jimenez-Joseph was being treated, according to the call log. Within 24 hours, ICE’s central office received a response from Atlanta: The privately run facility said it knew of Jimenez-Joseph’s condition, and officials insisted that he was “being treated with medication and therapy.”

Apparently satisfied with this answer, the ICE office left no record of any additional follow-up on the complaint. But the situation of Jimenez-Joseph’s mental health was not under control.

By the time of his call, Jimenez-Joseph had gained a new nickname at the detention facility: Julius Caesar. He was not only called this name by fellow inmates, but also by the facility’s guards. During an interview with state investigators later that year, one guard said he primarily knew Jimenez-Joseph by the Roman emperor’s name.

The DHS document obtained by The Intercept also refers to an encounter Jimenez-Joseph had with another detainee that led to his first placement in solitary confinement. After Jimenez-Joseph’s death, ICE publicly described this altercation as a “fight,” giving the impression that Jimenez-Joseph had a history of violence against other detainees at the facility. Jimenez-Joseph was placed in solitary confinement for seven days for the incident.

Security video obtained by The Intercept demonstrates what happened during the so-called fight. The video shows Jimenez-Joseph standing next to his drawings, which were sprawled out on a table, and engaged in what appears to be a heated discussion with another detainee. The video, which has no audio, shows the other detainee delivering a single blow to Jimenez-Joseph’s face, knocking his glasses to the ground. Jimenez-Joseph does not retreat but does not fight back. Rather, he jumps and moves around the area, dodging additional blows and looking at the other detainee. At that point, an officer enters the room, and both Jimenez-Joseph and the other inmate stand still and listen to the officer.

According to the DHS document, this assault led to a cut on Jimenez-Joseph’s nose but “no outside medical attention was needed,” so he was cleared for solitary confinement. Seven days later, he returned to general population, with persistent hallucinations.

The Highest Standards

If his altered perceptions didn’t raise serious red flags, Jimenez-Joseph’s more direct attestations of interest in suicide should have. Three weeks after his call to ICE’s help line, he again told an ICE health services official of suicidal thoughts. He said that voices in his head were telling him to kill himself even though he didn’t want to, according to the nurse’s notes from the conversation.

Just two days after that, on April 27, Jimenez-Joseph jumped off a second-floor platform at the detention center. He survived unscathed but told officials that it was an attempt to hurt himself, insisting again that he was a Roman emperor. That day, despite being repeatedly warned of his suicidal tendencies, ICE signed off on placing Jimenez-Joseph in solitary confinement as punishment for the jump, according to internal documents.

ICE placed Jimenez-Joseph in a tiny isolation cell for the second time, with a bed spanning between two of the bare concrete walls, two shelves, a toilet, and a mirror. “Whatever they call it, this cell can only be used for solitary confinement,” said Juan Méndez, a professor of human rights law in residence at American University, who previously served as the United Nations special rapporteur on torture. “It is clearly unsuitable for more than a few hours,” Méndez said of the cell. “Even for a single day, it is banned when applied to inmates with psycho-social disabilities,” he said, referring to international law.

Meanwhile, Jimenez-Joseph had discussed his suicidal thoughts during phone calls with family members, who were becoming increasingly alarmed about his mental state. Believing that he needed someone to talk to, Jimenez-Joseph’s mother asked an immigrant advocate living in Georgia named Marilyn McGinnis to visit Jimenez-Joseph in solitary confinement.

In an interview with The Intercept, McGinnis said she arrived at Stewart to see Jimenez-Joseph early on the morning of May 14, 2017, but due to Jimenez-Joseph being in isolation, her visit did not go as planned. McGinnis recalled ICE telling her, “‘No, he was in disciplinary segregation so he could only have a visit once a month,’” and Jimenez-Joseph already had a visitor that month. McGinnis left the facility without meeting the distressed detainee.

That night, shortly after midnight, Jimenez-Joseph was found in his solitary confinement cell hanging from a bedsheet fashioned into noose. Paramedics attempted to revive him in the small cell and then sped him to the nearest hospital, some 30 miles away. By sunrise, he was declared dead.

In addition to sparking outcry from immigration advocates, Jimenez-Joseph’s death has triggered a federal investigation headed by the Department of Homeland Security’s Office of Inspector General, ICE said in response to a request for comment from The Intercept. An ICE spokesperson indicated that the federal investigation was ongoing, noting that at “whatever point the investigative findings from DHS OIG are publicly available, we’ll address those findings at that time.”

CoreCivic declined to respond to a list of questions from The Intercept regarding Jimenez-Joseph’s call to the ICE help line, and cited “deference to our government partner” in referring all questions to ICE.

“ICE holds its personnel, including contractors, to the highest standards of professional and ethical behavior, and the agency takes all allegations of misconduct seriously,” an ICE spokesperson said in response to questions about Jimenez-Joseph’s call to the ICE help line. “ICE will continue to monitor the situation and respond appropriately based on the outcome of investigative findings.”

Top photo: An employee waits at the front gate of the Stewart Detention Center in Lumpkin, Ga., on April 13, 2009.

The post Immigrant Detainee Called ICE Help Line Before Killing Himself in Isolation Cell appeared first on The Intercept.

How an Algorithm Kicks Small Businesses Out of the Food Stamps Program on Dubious Fraud Charges

In Washington Heights, a hilly neighborhood at the northern tip of Manhattan, 128 P&L Deli Grocery is the busiest hub on the block. Outside, neighbors lounge in lawn chairs and pass around a hookah hose. Inside, customers watch baseball on an iPhone mounted behind the counter and sip tamarind juice through straws. Yucca, plantains, and bagged heads of lettuce loiter by the entrance.

Porfirio Mejia, the Dominican-born New Yorker who has owned this grocery for six years, seems to know everyone. He pats a few kids on the head and nods when a woman tells him she’ll pay him tomorrow. He pauses to inspect the peppers and tomatoes, remarking that a fresh produce delivery is due the next day. He works with the anti-hunger advocacy organization City Harvest to promote fruit and vegetable purchases, and he says that more than half of his customers buy their groceries with SNAP, the government assistance program formerly known as food stamps.

Well, they used to. The SNAP transactions at P&L tripped the wires of an algorithm that the U.S. Department of Agriculture uses to screen for fraud. Mejia’s decision to issue IOU’s to his regular customers — a policy that allowed him to deliver food to elderly neighbors and settle up after they received their benefits — triggered a suspicious activity flag in the system. By allowing customers to rack up a few weeks’ worth of grocery bills before paying with their benefit cards, Mejia violated the agency’s rules, which prohibit retailers from establishing informal credit systems with their customers.

About a year ago, a USDA letter informed Mejia that he was suspected of defrauding the government, so he rushed to enlist more than 30 of his neighbors to write letters explaining that his credit system did not constitute fraud — trading cash for food stamps. When I visited P&L in May, a stack of handwritten letters still sat on Mejia’s desk, with receipts attached.

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Porfirio Mejia’s store still bears old painted lettering indicating that he accepts food stamps, though indoor signage says “no EBT.”

Photo: Derek Saffe

His efforts weren’t enough. The agency wanted itemized receipts for the purchases that had been flagged, but Mejia’s cash registers at the time printed only total sales figures; he couldn’t provide an accounting of the individual products that his clients had bought on credit. He was permanently banned from accepting food stamps. When he lost his SNAP customers, 35 to 40 percent of his income went with them. When we spoke in May, he said he’s had to cut down on employees’ hours, and started working 14- and 15-hour days. He’s thought about selling the store.

Mejia is hardly alone. Last year, the USDA disqualified more than 1,600 retailers across the country from receiving SNAP payments. Over 90 percent of those businesses are convenience stores or small groceries. And while some of them almost certainly engaged in the cash-for-food-stamps fraud that the system is designed to detect, many of them, like P&L, were probably unjustly caught in the crosshairs.

It’s impossible to pin down exactly how many retailers were banned from accepting SNAP dollars due to fraud charges that the government can’t actually prove. But court testimony by a USDA official indicates that, just last year, hundreds of retailers were permanently disqualified from the program based primarily on an algorithmic assessment of their transaction patterns — the same circumstantial evidence that ensnared Mejia. “It’s a jerry-rigged system against small retailers unlike anything I’ve ever seen before,” said Stewart Fried, an attorney who has represented store owners flagged by the algorithm.

“It’s a jerry-rigged system against small retailers unlike anything I’ve ever seen.”

The USDA does not bother to justify or even explain the precise sales figures or thresholds that cause retailers to be flagged for investigation. In fact, officials appear not to know how they were developed in the first place. Douglas Edward Wilson, a USDA program analyst who has worked with the ALERT system for more than a decade, testified in a 2017 deposition that he had no idea who originally set the parameters for flagging fraudulent transactions.

Mejia seems to have been disqualified from the SNAP program based almost entirely on the atypical transaction patterns identified by the algorithm. He said he was never asked to explain these patterns before he was charged with fraud, nor did the agency present him with any evidence that he had traded cash for food stamps. Once accused, he was expected to prove his own innocence and the odds were stacked against him.

His situation is not uncommon: Retailers are regularly issued letters alleging “unusual, irregular, and inexplicable SNAP activity” based on their transaction history. According to a deposition given by Gilda Torres, a USDA section chief who oversees disqualifications, algorithm-flagged stores referred to her office for investigation are issued charge letters more than 95 percent of the time. And once they’re charged, their chances of reversing the decision are close to zero.

After the charge letter is received, retailers have 10 days to submit evidence to prove their innocence, a process that rarely results in decision reversals. Torres oversees SNAP disqualifications in New England, Maryland, New Jersey, Delaware, and Washington, D.C. In her district, 100 percent of cases that landed on her desk resulted in permanent disqualification in 2015, 2016, and 2017.

Businesses that do not successfully challenge the charge letter then have the option to seek administrative review of agency decisions, but that process is just as unforgiving. Of the 1,283 administrative reviews requested nationwide in 2017, only 20 disqualifications were reversed.

It’s a justice system that puts the burden of proof on the accused — and one in which most cases are decided long before they reach a courtroom. In the blink of an eye, the owners of small, neighborhood grocery stores can lose half their income.

When the Trump administration announced its half-baked proposal to replace some SNAP payments with pre-packaged “Harvest Boxes” in February, it justified the change in policy by claiming that it would help reduce food stamp fraud. But fraud plays a much larger role in the popular imagination than it does in the program itself. The USDA estimated that fraud accounted for 1.5 percent of the roughly $70 billion in benefits the program administered, or about $1 billion, in 2014. By contrast, that same year the government misallocated 2.27 percent of total benefits simply by overpaying beneficiaries, according to the Center for Budget and Policy Priorities. Regardless, for each of the last three years, the agency appropriated more than $17 million to fight retailer fraud in the more than quarter million retail establishments that accept food stamps. (The USDA administers SNAP at the federal level.)

Before the agency fully transitioned to debit-style Electronic Benefit Transfer cards about 20 years ago, food stamp fraud was policed primarily using undercover agents. These agents watch for less serious program violations — like the sale of non-food items — and fraud, the exchange of cash for food stamps. A 2018 USDA request for information from potential government contractors provides a glimpse into how these investigations operate: Agents try to pass as a typical customer, then attempt to use EBT cards to purchase SNAP-ineligible items like sponges or cigarettes.

While the agency still uses these undercover agents — in 2017, it conducted 5,557 such investigations — they rarely find evidence of fraud. Last year, less than 6 percent of retail investigations found retailers engaging in actual fraud. (Less than half identified any program violations at all, even minor ones.)

The introduction of EBT cards provided a new way for the USDA to detect potentially fraudulent behavior: It could digitally monitor all transactions in real time and screen for patterns suggesting irregularities. The agency commissioned the development of an algorithm, dubbed the ALERT system, that is used in many SNAP fraud cases today.

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A customer makes a purchase at Porfirio Mejia’s store.

Photo: Derek Saffe

The ALERT system analyzes millions of SNAP transactions and assigns ratings to businesses based on the number of unusual transactions they process. Unusual transactions can include sales volumes that are much higher than those at neighboring stores, multiple withdrawals from the same card over a short period of time, multiple purchases that end in the same number of cents, or very frequent or large purchases.

It was the last of these that ensnared Mejia. His practice of letting customers purchase food on credit — which resulted in one-time payments of hundreds of dollars when they cleared their accounts — showed up in the system as an atypical pattern and initiated his disqualification from the program.

The USDA argues that the ALERT system is one tool among many in a thorough disqualification process. “When [the USDA] suspects a store may be committing SNAP violations, staff will carefully review the store information including SNAP redemptions, any history of complaints, the owner’s history in the program, and store visit records which include photos and details of the store and inventory,” a USDA spokesperson wrote in an email statement. “If, after review of all the information gathered, [agency] staff believe further investigation is warranted, they (not the ALERT system) will initiate a compliance review — which may include further investigative analysis or an undercover investigation — and if warranted, charge the store with violations.”

Torres’s 2017 deposition tells a different story. The USDA section chief testified that the “investigative analysis” referenced in the agency’s emailed statement is based primarily on ALERT data. And there’s little leeway if a grocer is deemed to have violated the rules: According to decisions posted to the agency’s own website, retailers can be disqualified with no prior violations and decades of successful participation in the program.

Raul Barrios, a senior healthy retail specialist at the anti-hunger advocacy group City Harvest, spends most of his time visiting small New York City groceries to encourage proprietors to stock fruits and vegetables. He said he regularly encounters retailers who have been permanently disqualified from SNAP and appear to have inadvertently tripped the ALERT system’s wires through normal business activities that stop short of fraud. He cited stores like Mejia’s, which allowed customers to buy food on credit, and said that the multiple withdrawals flag could be triggered by neighbors who drop in for a gallon of milk in the morning and a bottle of water later in the day.

“In family-owned businesses that are pillars of the community, people go numerous times,” he said, adding that convenience store owners’ tendency to round prices to the nearest 50 cents likely triggers the same-cents flag. “A lot of them are not aware of the laws, of the do’s and the don’t’s.”

Barrios said he thinks up to half of retailers disqualified based on algorithmic evidence did not actually commit fraud. After all, credit systems like Mejia’s look the same on paper as the kind of cash-for-benefits scenario the government wants to stamp out.

Once a retailer receives a charge letter, they have 10 days to appeal the ruling by submitting proof that their transactions are all legitimate. (According to a USDA spokesperson, retailers can request extensions.) Last year, only 4 percent of retailers nationwide succeeded in reversing the decision during this stage.

Then, retailers have another opportunity to appeal during a process called “administrative review.” Reversal rates at this stage are even lower. For people like Mejia, who had no way of knowing that he needed to be saving itemized receipts, it’s an uphill battle. According to documents posted to the USDA’s website, retailers send a wide variety of paperwork to prove their innocence: medical records that show transactions flagged as fraudulent happened while owners were taking care of a sick family member, proof that employees had been trained in SNAP policy, credit logs, and in some cases hundreds of pages of receipts and letters from customers. Torres, the USDA section chief, testified that her region did not overturn any of its decisions in the last three years based on retailer-provided evidence during the administrative review period.

“[Retailers] lose almost 100 percent of the time because they don’t know what they’re doing, don’t know what [the USDA] is looking for,” said Fried, the lawyer.

According to Mejia, no one from the USDA ever called him to explain the appeals process. He does remember someone from the agency coming to his store before he received his charge letter, but that person only took pictures and didn’t initiate a conversation.

In Torres’s 2017 testimony for a separate SNAP case in Maryland, she said stores are initially inspected by agency contractors — sometimes months before a charge is issued — to measure square footage and look at inventory. These visits generate a sort of in-store snapshot for USDA staff members to cross-reference with ALERT system findings, and contractors aren’t tasked with finding hard evidence of fraudulent behavior. Torres said agency staff don’t typically visit retailers at any point in the disqualification process.

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Porfirio Mejia helps a customer at the register.

Photo: Derek Saffe

Mejia thought about retaining a lawyer but decided it would be too expensive. Had he sought legal advice, he might have discovered that there is one avenue for redress beyond the initial appeal and administrative review: judicial review of the decision, which means a trip to federal court. “At that point, the playing field gets leveled remarkably,” Fried said, adding that this process gives retailers access to the USDA’s full records and allows their lawyers to take depositions.

But legal representation can be expensive, and Barrios said small retailers are often skeptical that lawyers are worth the cost. The USDA doesn’t provide data on how many cases go to judicial review, but according to Fried, the number is almost certainly very small.

In other words, once retailers are accused, their chances of successfully proving their innocence are vanishingly slim. “That’s a big problem, when 100 percent of the retailers in all of New England, Jersey, Maryland, and D.C. are convicted based on a case that’s largely circumstantial,” Fried said, referring to Torres’s decision record since 2015. “The only hard evidence is a snapshot 30-minute visit [a USDA] contractor does, going out to the property one time to look around it.”

For now, Mejia’s moving on. He says he knows he broke the rules by allowing customers to buy on credit, and he accepts the agency’s decision to permanently disqualify him from SNAP. Still, he doesn’t think accepting credit is the same thing as trading cash for food stamps. And he thinks others have found themselves in the same boat, denied badly needed revenue simply for providing a service they see as neighborly. “It’s a system small business owners don’t understand,” he says in Spanish.

Top photo: Porfirio Mejia, the owner of a New York City bodega recently banned from accepting SNAP, poses for a photo in May 2018.

The post How an Algorithm Kicks Small Businesses Out of the Food Stamps Program on Dubious Fraud Charges appeared first on The Intercept.

Gruesome Footage of Dairy Calves Exposes a Gaping Loophole in California’s Landmark Animal Welfare Law

This article includes graphic images that some readers may find disturbing.

On a chilly night in December 2016, Julianne Perry led a group of volunteers over the shoulder of the highway and into the darkness of California’s Central Valley, toward the sound of lowing cattle. Their headlamps lit the way across dirt fields, their nostrils and throats filling with the choking smell of ammonia and feces floating in the humid air. They walked toward the sound, as one volunteer described it later, of thousands of cattle screaming. After a mile, they came to their target: a complex of low, wooden buildings that seemed to go on forever in all directions.

Before embarking on their nighttime mission, Perry and the other animal rights volunteers had looked at the area on Google Maps and been staggered by the scale of operations. Google’s satellite imagery showed a vast complex with beef-feeding and calf-raising; a dairy sprawled next door. A count based on the satellite images revealed roughly 4,000 hutches, each with three individual stalls of about 6 1/2 feet by 2 feet, a little larger than a bathtub. That would be space for over 10,000 animals in the vast spread of hutches an eighth of a mile across, beside a lake of feces.

That night, on a portion of the property, they found thousands of black-and-white Holsteins and Jersey calves – breeds commonly used for dairy production – crammed into stalls so small that, as shown by the video they shot, a calf had to turn itself nearly double as it strained to turn around in its stall. Other videos show calves covered in their own filth; the hutches have slats in the floor to let manure fall through into a gutter that was regularly hosed out, but invariably some gets trapped on the floor. “Every time they had to lie down, they had to lie in their own waste,” Perry recalled. “They pee, poop, eat, sleep in one small space.” Aside from clinging to the fur of the cattle, the feces caked on the floor, where it was kicked into aerosol by the nervous shuffling of thousands of calves. “You can’t compare the smell to anything,” Perry said. “It fills your senses in a way that you can’t think of anything but how sick you feel, your brain telling you that you can’t survive here.”

Perry and her fellow volunteers were investigators with Direct Action Everywhere, or DxE, a decentralized group of activists that seeks to publicize the day-to-day doings of industrial agriculture. They had come to this property — 100 miles east of San Francisco — as part of a mission to figure out whether major legal reforms that California had passed in 2008 had made any difference in the lives of calves raised in the state. They found a gaping hole.

A calf turning around in a hutch at the farm. Video: Direct Action Everywhere

In 2008, Californians passed one of the country’s farthest-reaching initiatives to improve farm animal welfare: the Standards for Confining Farm Animals, pushed by a coalition of groups including the Humane Society of the United States. Proposition 2, as it was known, was backed by a number of other animal rights organizations and sought to end what advocates see as one of the worst practices of industrial agriculture: the extreme confinement of some farm animals for their entire lives. Certain classes of animals are packed into excruciatingly tight quarters from birth to slaughter, unable to perform “natural behaviors” like stretching their limbs, kicking their legs, or even turning around in their enclosures.

The statute, billed at the time as one of the most sweeping pieces of animal welfare legislation in American history, targeted what advocates saw as the worst categories: egg-laying hens, crammed together in battery cages; mother sows, confined with their piglets in tiny stalls; and veal calves, traditionally taken at birth (so their mothers can begin immediately producing milk) and raised in tiny crates before being killed. “We knew no law could tackle every issue, and that there’s unbearable pain in other parts of the industry,” said Josh Balk, vice president for farm animal protection at the Humane Society. “But these were the most emblematic confined animals.” The measure passed with 63 percent of the vote.

But Perry, an intelligence analyst at Intel who moonlighted with DxE, was skeptical. In investigations from California to the Carolinas, DxE has probed the space between industry promise and industry practice, with often grotesque results. By sneaking onto factory farms with cameras, DxE investigators had revealed mass cannibalism in cage-free chicken houses that supplied Costco. They found turkeys packed together with open sores, in six inches of feces, in a California farm that Whole Foods had marked as the best of the best. And when Smithfield, the Chinese-owned, Virginia-based corporation that is one of the world’s largest pig farmers, announced that they had phased out farrowing crates for sows, a DxE investigation alleged that crates continue to be used. Wayne Hsiung, DxE founder, faces 60 years in prison for the Smithfield investigation.

What DxE found in Oakdale points to a problem with Prop 2 – a relevant fact for California voters, who will go to the polls next month to vote on Prop 12, a referendum intended to close some of the loopholes in Prop 2.

Although the on-the-ground investigation was conducted nearly two years ago, and DxE has not returned to the spot since, their findings point to a way in which the law still allows dairy calves — the vast majority of calves in California — to be held in tight confinement. That remains true whether or not Prop 12 passes.

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Newborn calves at the farm are fed from bottles (in silver-colored brackets) that are removed at night. Aside from the threat of contagion, one reason dairy calves are kept separately is that they can injure themselves or their neighbors with desperate suckling.

Still: Direct Action Everywhere

Perry was driving through the Central Valley, checking out farms for an investigation into the dairy industry, when she made the inadvertent discovery. The California dairy industry — by far the nation’s largest, with 1.7 million dairy cows, each of which produces nearly a ton of milk a year — was, thanks to its political power, not included in the confinement ban of Proposition 2, unlike the state’s tiny veal industry.

This was, to Perry, a triumph of semantics over common sense: “If the reason for [Prop 2] was to protect the welfare of baby boy cows, then why does it matter if it was for one product or another?”

Though the Holstein and Jersey calves that make up most California cattle are not primarily bred for beef or veal production — unlike, say, Angus cattle — they are still fed into a vast state beef industry. Since cows, like all mammals, must bear offspring in order to start lactating, dairy operations must repeatedly impregnate their cows, producing hundreds of thousands of calves a year. Female dairy calves become “replacements” for the dairy herd, but male calves have been a problem for dairy operations for as long as they have existed — a problem solved by turning them into veal, which entails slaughtering the low-value male dairy calves before much effort has to be spent feeding them. Veal calves are traditionally kept tightly confined to keep the meat tender, and it was this confinement that animal welfare groups celebrated ending in 2008. But veal has a minuscule market share in California, and has dropped to insignificance nationwide. Since 2008, national veal production has fallen by half, to just 0.43 percent of beef production. Meanwhile, despite a rise in genetically engineered brands of bespoke semen that lets dairies impregnate their cattle with only female calves, the dairy industry still produces over 1 million calves a year.

So what was happening to those calves? “When the average person hears the word ‘veal,’ they think of baby calves confined in crates so small they can barely move,” Perry told The Intercept. “And when they hear that veal [confinement] has been banned due to concern for animal welfare, they’ll assume calves are no longer being forced to live in those conditions.” So she was therefore surprised to come upon the operation outside Oakdale in December 2016, and find what looked like thousands upon thousands of veal hutches stretching into the distance. Those kinds of hutches had been all but outlawed for veal calves by Prop 2, and voluntarily rejected by the main veal industry groups soon after. And yet here they were.

In April of this year, DxE flew drones over the property. The footage reveals the same tiny hutches in rows a dozen deep, spread out beside the sewage lagoon.

Determining who was responsible for the calves they saw, and what they were raised for, turned out to be complicated — not least because the California calf supply chain, winding as it does across thousands of family operations and rural land holdings, is hard to untangle.

The address that DxE visited in Oakdale, California, is listed on the website for RayMar Ranches. According to the website, the company was started by Ray Alger to breed Angus cattle for other ranches; Alger’s son, Jeff Alger, and his son-in-law run a calf-raising operation called A&A Cattle Company. The two businesses share a phone number in public listings. Satellite imagery of the address, retrieved from Google Maps, shows a sprawling farm operation surrounding the family mansion.

Despite repeated tries, The Intercept was unable to get comment from RayMar about the calves discovered by DxE and the conditions in which they were raised. The first time, a woman picked up and said, “The Intercept? Never heard of it,” and hung up; the second, a man told me, “I don’t have any dairy cows. I’m an old man. I’m retired.” (The calves in the hutches on the property were, uniformly, Holsteins and Jersey cattle – that is, breeds raised almost exclusively for dairy production.) The Intercept made repeated efforts, by phone and email, to get in touch with Jeff Alger, but he did not respond.

A representative for the dairy next door, Hilltop Holsteins, said in an email that the calves in DxE’s video did not belong to Hilltop; he maintained that there were no calves kept at Hilltop and declined to say where they were sent to, out of the fear of “some folks steal[ing] our future generation.” The representative, Kevin Abernathy, who is a lobbyist for the dairy industry, also denied that Hilltop had any relationship with the Algers’ businesses.

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About one calf in 20, on average, dies before leaving feedlots, generally of diarrhea or pneumonia. Beside the calf hutches at Hilltop Holsteins, investigators with DxE found a pile of calf corpses that had been there for some time.

Still: Direct Action Everywhere

The conditions DxE filmed showed the costs of confinement.

One cost, the calf-raising industry has long known, is a higher rate of sickness and death — 1 in 5 calves suffers from diarrhea severe enough to require antibiotics, according to a dairy industry study, and when calves die — as about 7 percent do, on average — diarrhea is the cause of death half the time. In a grim note of that death rate, Perry and the other DxE investigators found a pile of calf corpses, many of them covered in maggots.

Perry was shocked. She crawled into one of the stalls and sat as a calf licked the top of her biohazard suit. It reminded her of a dog, only 300 pounds and shoved into a space approximately the size of a bathtub, exposed to the elements, with no blankets or bedding, utterly without company or touch. “I’m just 5-foot-2, and I couldn’t raise my arms without hitting that enclosure,” she said. If the owner of the calves is not selling veal, said Dena Jones, who runs the farm animal program at Animal Welfare Institute, a Washington, D.C.-based advocacy and policy group, there was no obvious need to keep them in such tight confinement. The industry has long claimed that “individual housing” is necessary as a preventative measure for the endemic disease in feedlots. But more recent research has shown that calves in properly managed “group housing,” where a few calves live together in one stall, are no more likely to contract disease, and display a range of benefits: They play more and are better socialized, and — more relevant to an industry dedicated to managing them — are less afraid of new foods and new experiences.

“There would be very little difference between the welfare of the animals DxE observed and the welfare of veal calves in traditional crates or stalls,” Jones wrote to The Intercept. “The welfare of these animals is poor — very restricted movement, no bedding, no enrichment of any kind, no social interaction with other calves, etc.”

A standard practice during DxE investigations, as both a propaganda and morale-boosting measure, is to rescue — or from the industry perspective, steal — an animal in distress. “It’s a way to walk out of there not just feeling like the world is awful,” said Hsiung, the DxE founder. The volunteers brought out a male Holstein calf, who, at 300 pounds, seemed to have spent months in his crate; he struggled to walk, and the activists speculated that he had perhaps never walked before.

DxE investigators say they brought the calf, who they named Nick, to a veterinarian office, where he was diagnosed with pneumonia — the other major killer of calves — and given little chance of survival. DxE says the vets also found that he had a severely weakened immune system, a result of never having received colostrum, which calves usually get from their first feeding from their mothers. “That meant he had been taken away the day he was born,” Hsiung said.

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Volunteers for DxE rescue a calf.

Still: Direct Action Everywhere

Was the confinement captured on video a violation of Proposition 2? The law, which defined “cruelty” as being unable to perform “natural behaviors,” only banned extreme confinement for veal — defined, somewhat circularly, as “the food product described as veal.” That means that under current law, if a dairy farm raises a calf in tight confinement, butchers it, and sells the meat as veal — that’s illegal. But raise the same calf in the same conditions, butcher it the same way, and sell it as beef: That’s legal. And if the farm similarly confines that calf’s sister, who will join the dairy herd — that’s legal too.

Hsiung believes the upshot was clear: Putting in thousands of all-new enclosures would be expensive — and, as long as the cattle weren’t sold as veal, legally unnecessary. But Jones, the analyst from Animal Welfare Institute, suggested the distinction was without difference. “While this situation may not be a violation of the law passed as Prop 2 in 2008, it certainly violates the spirit of that law. If Californians were made aware of this form of animal treatment, I believe most would strongly disapprove.”

November’s referendum, Proposition 12, is meant to address some of the areas that Proposition 2 left ambiguous: for instance, which state agency regulated confinement standards, leading to what Hsiung called “a game of regulatory hot potato.” Proposition 12 charges the California Department of Food and Agriculture. The previous referendum’s behavior standard — animals have to have enough space be able to perform natural behaviors, which led to gridlock over what constituted natural behaviors, and how much space was required — would be replaced with a concrete engineering standard, requiring veal calves to have 43 square feet by 2020. And borrowing a provision passed in Massachusetts in 2016, the farthest-reaching measure would ban any products from confined egg hens, sows, or veal calves to be sold in California after 2020 — no matter where in the country they had been produced.

Many animal welfare and rights groups — including Animal Welfare Institute, Animal Legal Defense, and DxE — are for the measure, however tepidly, because they see it as at least an improvement over the current practice. But there have been a few noted exceptions. PETA has pointed out, for example, that though the law outlaws cages for egg-laying chickens, it only gives them each a square foot of space. They fear that if Prop 12 passes, it will lock in a low standard of animal protection while persuading voters that the moral and technical problems with confinement have been solved.

Note, too, that Proposition 12 only applies to veal calves. There is still no provision for other calves, which make up the vast majority of the calves in California and around the country. And even if there were more veal calves to be concerned about, DxE volunteers note, the standard for veal is still only about 6 by 7 feet — enough room to turn around, but not much else.

Today Nick, the calf that DxE rescued, lives on a sanctuary with another calf taken during an investigation of a Land O’Lakes dairy facility. “It’s very powerful to see these animals run for the first time,” said Cassie King, a DxE volunteer, because for most of their lives, “they’ve been in a crate, never had the chance to run.” That deprivation, said Hsiung, is mirrored in other things they do. “You see them staring at the sky, stare at something colorful, and you realize they’ve never seen it before. What is a flower, an apple, a pig, a human being? The first time you give an apple, they just stare at it. What is this?”

This, he said, is “what we could give all these animals: Let them walk on grass, see the sky, explore their world, look up and see blue. They could sleep on bedding, not their own feces.” But even at its best, Proposition 12 won’t do this, for veal calves or any others. For all the talk of natural behaviors, 43 square feet is not nearly enough space to run.

The post Gruesome Footage of Dairy Calves Exposes a Gaping Loophole in California’s Landmark Animal Welfare Law appeared first on The Intercept.

Every Right to Be Angry: Two New Books on Women’s Rage Are Timed Perfectly for the Brett Kavanaugh Debacle

Last week, the country watched as Christine Blasey Ford sat in front of a panel of white male senators and relived the trauma of sexual assault from her teenage years — without anger. She was poised, open, and, in her own words, both “terrified” and “collegial” toward Republican lawmakers who have accused her of lying and said that her decision to come forward was a cynical piece of political calculus, timed conspiratorially to undermine their pick for the Supreme Court, Judge Brett Kavanaugh. For his part, Kavanaugh put on a sputtering display of anger that was petulant and self-pitying. As Sen. Dianne Feinstein, D-Calif., put it, he was “aggressive and belligerent.”

Ford has not spoken at all of anger. She has spoken, however, of all the other ways, familiar to many who have been through sexual assault, that she tried to minimize and bury the experience, to move on. She has spoken of shame, trauma, and anxiety caused by the event itself, of fear and resignation at Kavanaugh’s nomination — but not anger. She has stood up for herself: In her prepared remarks before the Senate Judiciary Committee, she said that people who suggested she was acting out of “partisan political motives … do not know me. I am a fiercely independent person, and I am nobody’s pawn.” But, during the hearing, Ford did not get angry. One can only imagine the reaction if she had. The oldest, most familiar tropes would surely have been unleashed; she would’ve been called vengeful, shrill, hysterical, deranged.

While Ford herself stayed collected, the rage felt by many women on her behalf has been palpable — from the text messages checking in on one other; to the rape whistles blown by protesters in the Senate; to the women who called into C-SPAN during a break in the hearings to tell their own stories of sexual assault. The anger is aimed not just at Kavanaugh, but at what he stands for: puerile masculinity, elite entitlement, and, especially, the power of men to make decisions over women’s bodies. After a year of #MeToo and two years of President Donald Trump, we’re having none of it.

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Photo: Courtesy of Simon and Schuster

Two new books, Rebecca Traister’s “Good and Mad: The Revolutionary Power of Women’s Anger” and Soraya Chemaly’s “Rage Becomes Her: The Power of Women’s Anger,” make apt primers for the Kavanaugh debacle. They discuss the ways in which women’s anger has historically been suppressed, sublimated, or used against them. Anger in men is to be expected, at its worst an uncontrollable and thus forgivable impulse. It is more often celebrated as a sign of strength and authority. Anger in women, by contrast, is seen as unnatural, unattractive, and dangerous; as Chemaly documents, we’re socialized from a young age “to go out of our way to look ‘rational,’ and ‘calm.’ We minimize our anger, calling it frustration, impatience, exasperation, or irritation.” We learn to “put aside anger in order to de-escalate tension or conflict” and to try to put others at ease. When we do show anger, the viciousness and revulsion with which men often react — and the very lengths that men will go to in order to ignore, delegitimize, or punish women’s anger — are acknowledgement of its destabilizing force and the threat it poses to the status quo.

Both Traister and Chemaly learned to embrace their own anger at the world’s injustices and to channel it into feminist advocacy and writing.

Deeper and less U.S.-centric books on the politics of women’s anger certainly exist — two recent ones include Sara Ahmed’s “Living a Feminist Life” (with its “Killjoy Manifesto”) and Jacqueline Rose’s “Mothers: An Essay on Love and Cruelty,” which handles the particularly fraught topic of mothers’ anger. Both Traister and Chemaly, however, focus largely on the last few years in the United States, taking the 2016 election, the Women’s March, and #MeToo as their central examples, while also spending time on other activism, from the women of Black Lives Matter to the teens of Marjory Stoneman Douglas High School. Both Traister and Chemaly learned to embrace their own anger at the world’s injustices and to channel it into feminist advocacy and writing. They believe they are seeing something similar emerge in the large number of American women who’ve joined these and other movements.

Both books are very much about the discourse, and for any woman who has been very online the last two years, it will feel familiar to rehash the tweets, the think pieces, the cable news clips, the memes, and the sound bites. (Motion to end the practice of writers citing their own tweets, and especially the number of retweets or faves they received.)

As a lightning-fast analysis of the present moment, absorbing all the takes, Traister’s book makes for engaging reading, especially the firsthand accounts from organizers she reports on and the sprinkling of American women’s history throughout. Chemaly’s entry is more of a landslide of statistics and surveys about misogyny and discrimination, unresolved biases, and gendered expectations — all convincing evidence for things we ought to be very angry about, but piled on in such a heap that they start to feel numbing rather than enraging. My heart sunk a bit at each sentence that began “studies show.” She’s most interesting when analyzing the effects of suppression of anger, especially intergenerationally.

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Photo: Courtesy of Simon and Schuster

Chemaly’s great-grandmother was essentially kidnapped by her husband at 14 and gave birth to seven children by age 26; her grandmother was a hard-edged woman with a temper. Chemaly, in contrast, also returns several times to the image of her own mother, a model of domestic tranquility — though she once found her hurling china plates to the ground in the garden. Even as a very young girl, Chemaly found herself asking what it took these women to “survive, intact … living in countries rent with violence and in a family, like most in the world, dedicated to men’s rule.” She recognized that “their anger was not the problem. A lack of understanding about their anger was.”

Traister and Chemaly promote anger as salubrious, a primal source of solidarity and change. I agree that we should push back against the wellness industry’s mantra that anger will always eat you up inside. And we should dispense with the op-ed handwringing that, at a movement level, it will cause things to burn so hot as to turn destructive. (Traister addresses how divisions within the women’s movement have often been exaggerated or manipulated by its opponents, without dismissing real class- and race-based splits.) In the wake of Trump’s inauguration, I remember a spate of self-care articles that caused me to worry that the teeth-gnashing, headline-gulping first months of the presidency would give way to a new literature of coping and complacency, instead of teaching people how to channel their anger toward effective organizing.

Both books applaud a resurgent feminism that embraces anger and is at once unapologetic and uncivil. Be loud; be humorless when things are not funny; refuse to smile when a man tells you to.

Both books applaud a resurgent feminism that embraces anger and is at once unapologetic and uncivil. Be loud; be humorless when things are not funny; refuse to smile when a man tells you to. And be uncompromising, even — especially when the institutions targeted by the movement are ones to which you have gained entrance as an individual.

It is the #MeToo section, focused mainly on the news industry, where Traister seems most honest about the limits of counting on women’s anger as an inherently progressive force. She writes about the difficulty so many women in media, herself included, had in confronting the fact that men they liked — men they wanted to be like, men who had mentored and supported them — might also have been abusive to other women. She writes that it felt “too much, too risky, too intense” and “not fun” to “stare at the ugly scaffolding on which so many of our professional lives had been built.” Some women, for instance, condemned the “Shitty Media Men” list, a spreadsheet of rumored misconduct that circulated last fall; or they sprang to the defense of accused men (like Tom Brokaw) in open letters; or they said #MeToo merely expressed a generational gap between oversensitive younger women and a tougher, older cohort. (The latter is a rehashing of an argument about coddling in academia beloved of conservatives and, increasingly, of a certain type of liberal man.)

Traister seems much less cynical toward power when it comes to the political arena, as indicated by her analysis of Hillary Clinton as a candidate and of the surge in women candidates running for office this year. She acknowledges the critiques of Clinton’s policy positions from left feminists, but seems to blame the lack of enthusiasm for Clinton on women voters rather than on the candidate who failed to inspire them with an unapologetic and robust feminist agenda. Few women on the left would deny the viciously gendered attacks on Clinton and the way she was hamstrung by the double standards facing female politicians in her reactions to Trump’s cruel and oafish candidacy. But the tepid support was not because, as Traister argues, we were “goaded into inaction by the assurance that sexism and racism were things of the past, and that to work themselves up about either would look silly, would be unnecessary exertions on behalf of an imperfect candidate.” Even while defending Clinton against her critics, Traister quotes Black Lives Matter co-founder Alicia Garza, noting that when Clinton expressed rage at losing, it “wasn’t just at the men who kept her down,” but also “very much at the people who challenged her around things she absolutely should have been challenged around.”

It should go without saying that not all female politicians have radical feminist politics; nor should we assume that every woman running as a #resistance candidate this fall will carry out an unflinching progressive agenda, as the narrative arc of “Good and Mad” seems to suggest. Traister notes a common sentiment among longtime organizers who are overwhelmed by the influx of pussy-hatted, newly activated white women in their meetings: They want to follow rules, and they want permits for actions. In office, they may also want incremental change.

It’s true that studies around the world show that certain gains for women on child care, health care, even less bellicose foreign policy could be achieved almost automatically through more equal representation in government and industry. But public office and boardroom seats will always come with compromise. The value of women’s anger might be best expressed in the places where it is anonymous and hardest to measure: in its amorphous online manifestations, in whisper networks, in street protest, or in the brave shouts, for instance, of the immigrant mothers who yelled for Homeland Security Secretary Kirstjen Nielsen as she toured a detention center holding families who’d been separated at the border this summer. (Rose notes in her “Mothers” book that the U.S. and the U.K. are particularly unwilling to see migrant mothers as agents, not even in the classic form of “suffering motherhood, a mother bereft of her child.” Instead, these women “are either overlooked completely or are the target of blame, with migration and its miseries the true story behind both.”)

Hundreds of thousands of activists from across the United States and abroad took to the streets of Washington, D.C., participating in the "Women's March" on the day following the inauguration of President Donald Trump, on January 21, 2017. (Photo by Albin Lohr-Jones) *** Please Use Credit from Credit Field ***(Sipa via AP Images)

Hundreds of thousands of activists from across the United States and abroad took to the streets of Washington, D.C., to participate in the “Women’s March”, on Jan. 21, 2017.

Photo: Albin Lohr-Jones/Sipa USA via AP

The anti-Trump contingent shows a clear split between those who are appalled by Trump’s assault on the norms of American power and those who are appalled by Trump but also by those norms. The norms will push back, as is seen in the fretting over whether Kavanaugh’s messy confirmation hearing is “likely to leave a stain on Washington.”

As the classicist Mary Beard wrote in her short manifesto “Women & Power” last year, changing the structure of power “means decoupling it from public prestige. It means thinking collaboratively, about the power of followers not just of leaders. It means, above all, thinking about power as an attribute or even a verb (‘to power’), not as a possession.” It means, as Moira Donegan wrote this spring, minimizing individualist feminism in favor of social feminism. It means thinking of Kavanaugh’s confirmation not in terms of the challenge to one man by one woman’s testimony, but in terms of the anger of the millions of women behind it.

Top photo: Christine Blasey Ford testifies at a Senate Judiciary Committee hearing in Washington, D.C., on Sept. 27, 2018.

The post Every Right to Be Angry: Two New Books on Women’s Rage Are Timed Perfectly for the Brett Kavanaugh Debacle appeared first on The Intercept.

Nationwide Class-Action Lawsuit Targets DuPont, Chemours, 3M, and other Makers of PFAS Chemicals

A class action lawsuit against 3M, DuPont, and Chemours was filed this week on behalf of everyone in the United States who has been exposed to PFAS chemicals. The suit was brought by Kevin Hardwick, an Ohio firefighter, but “seeks relief on behalf of a nationwide class of everyone in the United States who has a detectable level of PFAS chemicals in their blood.” Hardwick is represented by attorney Robert Bilott, who successfully sued DuPont on behalf of people in West Virginia and Ohio who had been exposed to PFOA from a plant in Parkersburg, West Virginia.

In addition to 3M, DuPont, and its spinoff, Chemours, the suit names eight other companies that produce the toxic chemicals, which are used to make firefighting foam, nonstick cookware, waterproof clothing, and many other products. While much of the litigation around PFAS has focused on PFOA and PFOS, this suit targets the entire class of PFAS chemicals, including “the newer ‘replacement’ chemicals, such as GenX.”

Rather than suing for cash penalties, the suit seeks to force the companies to create an independent panel of scientists “tasked with thoroughly studying and confirming the health effects that can be caused by contamination of human blood with multiple PFAS materials.” Such a panel would parallel the C8 Science Panel, which was created by the earlier class action litigation in West Virginia. That panel, overseen by epidemiologists approved by lawyers from both sides in the suit, found six diseases to be linked with PFOA exposure, including testicular cancer and kidney cancer.

“With multiple PFAS chemicals now contaminating the blood of people all over this country, it should be possible to build upon and expand the C8 Science Panel model to encompass a comprehensive, nationwide investigation of the impact of multiple PFAS chemicals,” Bilott said in a press release.

Critically, the settlement creating the C8 Science Panel stipulated that DuPont was unable to contest the links found by the C8 Science Panel in court, which helped lead to multiple verdicts in which the company was held liable. To date, DuPont has paid more than $1 billion in penalties as a result of the earlier PFOA litigation. The primary goal of the new lawsuit is the creation of a national study that would be similarly binding.

“The hope is it would go a long way to resolving the PFAS crisis by providing scientific answers that everybody involved would commit to,” said Bilott in an interview. “Otherwise there’s the potential for endless litigation and fighting over the meaning of the science.”

In response to an inquiry about the suit, a 3M spokesperson emailed a statement: “We are aware of the lawsuit, but have not yet had an opportunity to review the allegations. Nevertheless, 3M acted responsibly in connection with its manufacture and sale [of] PFAS and will vigorously defend its record of environmental stewardship.”

DuPont and Chemours did not immediately respond to requests for comment.

The Agency for Toxic Substances and Disease Registry recently began a nationwide study of the health impacts of PFAS, which have contaminated drinking water via industrial pollution and the use of toxic firefighting foam, but the results will not be available for years. The new national class action suit would hold the manufacturers themselves responsible for the costs of the research.

“There is tremendous fear, anxiety, and uncertainty across the country as to the serious public health threat posed by PFAS contamination,” Bilott said. “This lawsuit could provide a mechanism for addressing and resolving those concerns through a truly comprehensive and independent, science-based process paid for by those that actually created the problem — and not by the American taxpayers.”

The post Nationwide Class-Action Lawsuit Targets DuPont, Chemours, 3M, and other Makers of PFAS Chemicals appeared first on The Intercept.

Saudi Women Who Fought for the Right to Drive Are Disappearing and Going Into Exile

On the evening of September 26, 2017, 28-year-old Loujain al-Hathloul sat at home in Riyadh, Saudi Arabia, eyeing her smartphone. A stream of notifications cascaded down the screen as her social media feeds erupted with messages of shock, joy, and speculation. Moments before, an ordinary Tuesday had turned historic: King Salman al-Saud took to state-run television to issue a stunning royal decree: Saudi women, at long last, would be granted the right to drive. The abrupt announcement, orchestrated in concert with a simultaneous press event in Washington, D.C., and a warm commendation from U.S. President Donald Trump, had sent millions of Saudis reeling. For decades, the government had remained intractable on the issue of women’s right to drive, siding invariably with conservative clerics who justified the ban on religious grounds. Human rights groups viewed the ban — unique the world over — as an emblem of a broader oppressive stance toward women, and had long called for its repeal. Yet even the most earnest advocates would have thought such a reversal unthinkable mere hours before.

Al-Hathloul, a women’s rights activist with thick, dark hair and penetrating brown eyes, had felt her own flood of emotions on that balmy evening one year go, but surprise was not among them. She’d already had days to process the news, having been tipped off to the coming reform by the Saudi government itself. The phone call from the Royal Court, however, had not been a pleasant one: After informing al-Hathloul of the impending announcement, the government official had instructed her to refrain from making any public comment on the reform, even in praise.

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Loujain al-Hathloul.

Photo: Wikimedia Commons

As one of the country’s foremost activists, boasting a large and active social media presence, al-Hathloul struggled to abide by the order. Reflecting on the king’s decree, her mind cycled through the years she’d spent advocating for the right to drive, among other social and civil rights for women — and the international attention she’d garnered for the cause. She recalled the 73-day detention she’d served just two years prior, after being arrested for attempting to drive a car inside the kingdom, an experience that had shaken her deeply without deterring her. Images of women — her mother, sisters, fellow activists, and friends — flicked through her mind. The ability to drive would significantly impact their daily lives, from expanded work opportunities to the simple, radical joy of mobility. She even dared to imagine that this policy change was a sign that the Saudi regime might be open to further, more fundamental reforms. Even with the Royal Court’s warning echoing in her ear, the dynamic al-Hathloul itched to express her elation and tentative hope.

She was not the only one under a gag order that Tuesday night. The government had made similar calls to several other women’s rights advocates in the preceding days, including two who were abroad at the time, ordering them to remain silent when news of the driving reform broke. “We got the impression that they didn’t want activists claiming credit for the change — the message was, this was a top-down decision made by the king, and not a reward for activism,” said one human rights advocate, who asked for anonymity for fear of reprisals. Most complied with the orders, although al-Hathloul took a gamble with a single, seemingly innocuous tweet: “Al-Hamduililah” — thank God. Shortly after, she was contacted by a government affiliate, admonishing her to heed the court’s instructions.

The ominous phone calls, coming alongside the historic announcement, were emblematic of the strange new moment that activists like al-Hathloul were living. In 2016, under the leadership of Crown Prince Mohammed bin Salman, the Saudi government had embarked on a massive “Vision 2030” campaign for “national transformation,” promising vast social and economic reform, including expanded rights for women. Never before had the government, traditionally yoked to an ultraconservative religious elite, broadcast such a zealous message of reform. Yet at the same time, the government was increasingly censoring civilians of various political and religious persuasions, arresting critical clerics and moderate journalists alike, and placing increasing pressure on state media to publish pro-government stories, sources inside the Saudi press told The Intercept. Hiba Zayadin, Human Rights Watch’s chief researcher on Saudi Arabia, said, “The state was making clear that all the promised reforms were to be accomplished by the state alone, in a top-down manner, on the government’s terms.”

Still, as recently as a year ago, al-Hathloul and those like her held out hope that the state-endorsed push for reform could create conditions for progress on other issues, such as the rights of political prisoners and the kingdom’s male guardianship laws, which subject women to the will of their male “custodians” in various areas of social and civil life. “We weren’t sure how serious the government was about its promises, but we thought, maybe we can work within the system and use their own words to push for change now,” said one woman activist, speaking of last year. “We thought we could present ourselves as allies, to support their work, and maybe they would accept us.”

For al-Hathloul, this hope would be short-lived. Beginning on May 15, 2018, just weeks before the end of the ban on female drivers, the government began a series of arrests targeting prominent activists. Al-Hathloul was among the first to disappear into custody, along with Eman al-Nafjan and Aziza al-Yousef, fellow advocates for human rights and reform. Simultaneously, photographs of the women began to circulate on local media and online, accompanied by state accusations of treason and collusion with foreign governments. A hashtag, #AgentsofEmbassies, went viral, as did speculations that al-Hathloul was a Qatari operative intent on harming the Saudi state.

The arrests were the latest example of a new and expanding tactic in Saudi Arabia of the state using anti-terrorism laws to silence dissent. “In the past few years, there has been an increasing trend of using nationalist rhetoric and accusations of terrorism to squelch anyone who might question the state,” said Zayadin. Such allegations allow for the authorities to hold people for months without trial and prosecute them in the so-called Specialized Criminal Court, where they could face heavy sentences for nonviolent crimes. “We’ve seen it used against conservatives and liberals alike,” Zayadin added, citing a slew of arrests in September 2017 during which the government rounded up a group of clerics, academics, and journalists under similar charges of treason. (The Saudi embassy in Washington did not respond to a request for comment.)

At the end of June, the world applauded as women in the kingdom claimed their right to drive for the first time. Meanwhile, al-Hathloul and her colleagues remained incommunicado. Just three days later, Hatoon al-Fassi, a prominent professor of women’s history and longtime advocate for reform, was taken into custody on unknown charges. The following month, two more well-known female activists, Samar Badawi and Nassima al-Sadah, were arrested, despite having largely halted their organizing and online activities after witnessing the crackdown on their peers.

“There’s a feeling now that, even if you’re not an activist, just having an opinion is dangerous.”

In the meantime, other activists fell silent or, along with a growing number of conservatives, academics, journalists, and businesspeople, quietly left the country. “There’s a feeling now that, even if you’re not an activist, just having an opinion is dangerous,” said one human rights advocate, who left the country to avoid detention. “Right now, I don’t have any hope for activism inside the kingdom.” Like many of the activists in this story, The Intercept is withholding the human rights advocate’s name and identifying details at their request, in order to protect them and their family.

Zayadin said the clampdown has been unlike any seen before in Saudi Arabia. “The scope and severity of these crackdowns is really unprecedented,” she said. “Even people outside the kingdom are scared to speak their mind. All the momentum for a grassroots reform movement that was built over recent years has been halted.”

As a result, less than two years into the government’s 24-year plan to reform the kingdom, positing it as a progressive peer among the world’s liberal democracies, the frontiers of Saudi dissent have shifted almost completely abroad.

Saudi Crown Prince and Defence Minister Mohammed bin Salman (C) poses for a group picture with other defence ministers and officials of the 41-member Saudi-led Muslim counter-terrorism alliance on November 26, 2017 in the capital Riyadh, including Jordan's Chairman of the Joint Chiefs of Staff Lieutenant General Mahmoud Freihat (L) and Afghanistan's acting Defence Minister Major General Tariq Shah Bahrami (R). This is the first official meeting of the 41-member Islamic Military Counter Terrorism Coalition, first formed in 2015 under the auspices of Prince Mohammed -- whose rapid ascent since his appointment as heir to the throne in June has shaken the regional political scene.  / AFP PHOTO / Fayez Nureldine        (Photo credit should read FAYEZ NURELDINE/AFP/Getty Images)

Crown Prince Mohammed bin Salman, center, poses for a portrait with other defense ministers and officials of the 41-member, Saudi-led Muslim counterterrorism alliance on Nov. 26, 2017, in Riyadh.

Photo: Fayez Nureldine/AFP/Getty Images

Saudi Arabia, one of the world’s last remaining absolute monarchies, has never offered much in the way of civic engagement. Even so, the kingdom has seen numerous, if marginal, movements for political reform in the course of its 86-year history. Since at least the 1970s, academics and organizers, many of them women, have quietly nurtured a network of “salons,” using private homes as gathering places for political and intellectual discourse. The first mass demonstration for women’s right to drive came in 1990, when 47 women drove cars in the streets of Riyadh. More recently, smaller collectives, such as the “Jeddah Reformers,” the Saudi Civil and Political Rights Association, the Union for Human Rights, and the Adala Center for Human Rights, emerged to promote civil rights and government accountability.

These activists, and many of their loved ones, have paid heavily for their cause. Women who participated in the 1990 driving demonstration, known ever after as “The Drivers,” faced detention followed by years of social stigma and professional setbacks. Other organizers endured harassment, arrest, incarceration, and even corporal punishment. Groups like the Saudi Civil and Political Rights Association were declared illegal by the state. Meanwhile, periodic uprisings from the country’s Shi’ite minorities repeatedly led to violent showdowns with state security forces.

The state’s severity is made all the more terrifying by its arbitrary enforcement. Saudi Arabia lacks an official constitution, relying instead on a diffuse, and malleable, constellation of religious rulings — “fatwas” — alongside royal decrees. For most of the kingdom’s history, the penal code has been likewise ad hoc, allowing the state to prosecute activists and dissenters as it saw fit. “Until recently, there were no clearcut guidelines about crime and punishment,” said one Saudi journalist, who asked not to be named in order to protect their family. “It was terrifying to get taken in for political reasons. There was a feeling that anything could happen to you.” (In recent years, the government has instituted some piecemeal regulations guiding the adjudication of particular crimes, but these broadly defined laws still leave much to interpretation.)

Yet while the state has always been intent on suppressing political protest, the past several years have seen a severe turn. In 2008, subject to pressure from American anti-extremism efforts in the region, the Saudi government established a Specialized Criminal Court tasked with prosecuting terrorism cases. Soon after, rights groups began raising concerns that the court was being misused to prosecute nonviolent dissidents. These fears grew with the passage of the Penal Law for Crimes of Terrorism and its Financing, in 2014, which leveled harsh punishments for a wide range of expansively defined crimes. Waleed Abu al-Khair, the first activist to be convicted under these expanded laws in 2014, was sentenced to 15 years in prison and a 15-year travel ban after speaking out about human rights and signing a petition critical of the government.

Since the imposition of the 2014 law, the government has expanded its counterterrorism mandate, most recently in a 2017 amendment that transferred much of the special court’s prosecutorial powers from the Ministry of Interior to newly created offices that report directly to the king. The latest version of the law, like its predecessors, encompasses a wide array of vague offenses, such as “disturbing the public order of the state” and “exposing its national unity to danger.” It also criminalizes any portrayal of the king or crown prince which, directly or indirectly, “brings religion or justice into disrepute.” The law also allows for a pretrial detention of up to 12 months with unlimited renewal, while curtailing a detainee’s right to legal counsel. In May 2017, a United Nations report declared Saudi Arabia’s counterterrorism laws to be in violation of international human rights standards for its “criminalization of a wide spectrum of acts of peaceful expression.”

Members of Human rights NGO Amnesty International hold giant portraits of jailed Saudi blogger Raif Badawi and Saudi rights activist and lawyer Waleed Abu Alkhair as they demonstrate in front of the Embassy of Saudi Arabia in Berlin, on January 8, 2016 to ask for their release. Badawi was sentenced to 10 years in prison and 1,000 lashes for insulting Islam.  / AFP / TOBIAS SCHWARZ        (Photo credit should read TOBIAS SCHWARZ/AFP/Getty Images)

Members of human rights group Amnesty International hold giant portraits of jailed Saudi blogger Raif Badawi and Saudi rights activist and lawyer Waleed Abu al-Khair, as they demonstrate in front of the Embassy of Saudi Arabia in Berlin on Jan. 8, 2016.

Photo: Tobias Schwarz/AFP/Getty Images

The government invoked these anti-terrorism laws when it detained al-Hathloul for the first time in 2014. The young woman was arrested one winter day at the Saudi-United Arab Emirates border while attempting to drive a car into Saudi Arabia. Al-Hathloul, then 25, along with her 33-year-old companion Maysaa al-Amoodi, were the first women to be threatened with prosecution under the Specialized Criminal Court and remained in state custody for 73 days. “This was a wake-up call for us,” said one activist who was close to the women. “We expected some backlash for our activism, of course, but we thought it would be interrogation, maybe — not prison. But after that, we started to feel that at any moment, the government could make us disappear.”

Sobered, many activists moved their organizing completely online, often using pseudonyms to screen themselves from the state. A few online campaigns emerged. In 2014, activists on Twitter launched the hashtag #IAmMyOwnGuardian, among others, calling for the end to the kingdom’s repressive male guardianship laws. The petition garnered over 14,000 signatures, which activist Aziza al-Yousef printed and delivered in person to the Royal Court. Arriving with the document in hand, she was sent away and told to mail the petition by post, which she later did. In 2015, women organizers launched another petition, “Baladi,” or “my country,” to push for the right for women to participate in municipal elections. The request was eventually granted, but several prominent women activists, including al-Hathloul, were explicitly banned from running.

Despite the snubs, and although the hyperlocal elections offered little in the way of real-world impact, the victory was still taken as a symbolic win for the movement. “For a while, we were seeing some changes happening, very small, but still happening,” said one female organizer, who now lives overseas. Overall, however, activists report an increasing sense of fear, saying that previous workarounds, such as hedging their critique in the language of moderation, nationalism, and reform no longer ensures their safety. “We used to think if we presented ourselves as allies to the government, wanting to work with them, we would be safe,” said the organizer. “But that changed after the rise of Mohammed bin Salman.”

In some cases, the government targeted the family members of accused dissidents, one longtime activist told The Intercept, including placing them under travel bans. “The travel bans are one less-known form of state suppression,” said Zayadin, of Human Rights Watch. “The government will often block activists or their family members from leaving the country, and some don’t find out about this until they reach the airport.” Others who took part in salons, academic clubs, or other organizing spaces reported being monitored by government operatives, or receiving harassing phone calls warning them to cease their activities.

A protestor holds a picture of missing journalist Jamal Khashoggi during a demonstration in front of the Saudi Arabian consulate, on October 5, 2018 in Istanbul. - Jamal Khashoggi, a veteran Saudi journalist who has been critical towards the Saudi government has gone missing after visiting the kingdom's consulate in Istanbul on October 2, 2018, the Washington Post reported. (Photo by OZAN KOSE / AFP)        (Photo credit should read OZAN KOSE/AFP/Getty Images)

A protestor touches a picture of missing journalist Jamal Khashoggi during a demonstration in front of the Saudi Arabian consulate in Istanbul on Oct. 5, 2018.

Photo: Ozan Kose/AFP/Getty Images

The growing atmosphere of fear prompted some to leave the country, including Jamal Khashoggi, a Saudi journalist and former newspaper editor, who said he began facing scrutiny after publishing articles in favor of the widespread popular uprisings known as the Arab Spring. “The government made clear they weren’t happy with me then,” said Khashoggi, a 59-year-old Jeddah native whose penetrating eyes had grown weary in recent months. We spoke several times during the summer of 2018, his decisive voice edged with remorse. “There was always a gentlemen’s agreement between the state and media — we published certain things or kept other things out of the press — and it went along pretty smoothly,” he said. “But then we started seeing more direct pressure on journalists to only publish pro-government stories. Some people were asked to sign loyalty pledges. Some people were banned from writing or had their columns taken down. Things got worse for the activists, too, or people with critical opinions. The government was sending a message that if you’re not with us, you’re against us.” Khashoggi relocated to the United States in June 2017. Al-Hathloul’s colleague, al-Amoodi, also moved abroad shortly after being released from prison.

“The government was sending a message that if you’re not with us, you’re against us.”

Yet the Saudi state’s efforts to suppress dissent appear to extend far beyond the nation’s borders. Numerous Saudi activists who sought refuge in the United States and Europe have reported receiving phone calls from the Saudi embassies in their host countries. The calls included requests for the activists to report to the embassy for undisclosed reasons. “I would never go,” said one activist who received one such summons. “Who knows what would happen? I’m afraid they would deport me.” (Since 2015, three Saudi princes who had criticized the royal family also disappeared while abroad, and are believed to have been forcibly returned to the kingdom).

Such fears were surely on Khashoggi’s mind on October 2, 2018, when he approached the Saudi consulate in Istanbul. Khashoggi was seeking documents necessary to marry his Turkish fiancee, Hatice, who requested that her last name be withheld. According to Hatice, before entering the consulate at about 1:30 p.m., Khashoggi instructed her to call the Turkish authorities if he did not return. She waited outside the consulate until after midnight, but Khashoggi never appeared. The Saudi government denied detaining the dissident, claiming that he exited the premises on his own accord. Security footage obtained by Turkish authorities show no sign of Khashoggi leaving the consulate, but the New York Times reported that several diplomatic vehicles have been seen entering and exiting the compound. Khashoggi’s whereabouts remain unknown.

JEDDAH, SAUDI ARABIA - JUNE 22:  Young Saudis, including three women wearing the traditional niqab and black abayas, relax on the Corniche waterfront on June 22, 2018 in Jeddah, Saudi Arabia. The Saudi government, under Crown Prince Mohammad Bin Salman, is phasing in an ongoing series of reforms to both diversify the Saudi economy and to liberalize its society. The reforms also seek to empower women by restoring them basic legal rights, allowing them increasing independence and encouraging their participation in the workforce. Saudi Arabia is among the most conservative countries in the world and women have traditionally had much fewer rights than men.  (Photo by Sean Gallup/Getty Images)

Young Saudis relax on the Corniche waterfront on June 22, 2018, in Jeddah, Saudi Arabia.

Photo: Sean Gallup/Getty Images

Today, the Saudi streets are awash with a heady mixture of hope, bewilderment, and, for some, a burgeoning patriotism. Most Saudis agree, with varying levels of excitement or dismay, that their country is living through a moment of profound change — a message the government itself aggressively promotes. State-sponsored billboards, street signs, and social media campaigns tout slogans of national pride and the promise of a Saudi Arabian renaissance embodied by Vision 2030, the government’s vast agenda to reform Saudi’s economic and social life. From malls to hotel lobbies to airports, regal artwork depicts the state’s founder, King Abdulaziz, alongside the current monarch King Salman, who in turn is often flanked by his heir-apparent, 33-year-old Mohammed bin Salman.

Bin Salman, or “MBS,” has presented himself as the architect of the kingdom’s promised renewal since announcing Vision 2030 in April 2016. Since then, the crown prince has rapidly consolidated power, undercutting traditional governing protocol, firing dozens of government-appointed officials, and directing abrupt changes in the economic, labor, and religious sectors. Some of the changes have reversed decadeslong conservative norms, such as the decision to allow women to drive and attend sporting events, or the opening of cinemas and concert halls. Seeking to encourage a more diverse and engaged local workforce, the crown prince has overseen programs to incentivize companies to hire Saudis, alongside new policies to curb the country’s massive migrant workforce. In pursuit of foreign capital, MBS has eased regulations on outside investments, courted tech giants such as Amazon and Apple, and announced plans for a futuristic robotic-driven city, Neom.

One pillar to Vision 2030 is the rehabilitation of Saudi Arabia’s image abroad, which has long suffered from associations with religious extremism and gender-based oppression. In a series of much-celebrated interviews with the Western press in 2017, MBS popularized the idea that he was “restoring” Islam in the kingdom to its real, moderate roots. The crown prince also promised that the change would be swift. “We won’t waste 30 years of our life combating extremist thoughts; we will destroy them now and immediately,” he said. In apparently keeping with this promise, the government has silenced many of the country’s conservative religious figures, most notably in a spree of arrests last September that included several prominent clerics, and the scaling-back of the once-feared religious police.

Many in the West have been eager to embrace MBS’s narrative; New York Times columnist Thomas Friedman lauded the crown prince as embodying “Saudi Arabia’s Arab Spring, at last.” Many Saudis, too, proclaim their delight at MBS’s promise and express their relief at the country’s new, moderate image abroad. Roughly 70 percent of the Saudi population is under 30 years old and tend to be particularly receptive to the promises of Vision 2030. “For the first time in my life, I’m proud to be a Saudi,” said Nadia, a 28-year-old Riyadh native, whose last name is being withheld by The Intercept. “My whole life, I’ve had to bear that burden of 9/11 whenever I travel abroad. That was what we were known for — but now, suddenly, it’s cool to be Saudi.”

Behind the carefully curated optics, however, MBS’s execution of his agenda has upended the kingdom’s traditional distributions of power. “The king has always been the most powerful person in Saudi Arabia, but he’s always ruled through a complex system of mechanisms and councils, and in some kind of consensus with princes, businessmen, and religious leaders who met behind the scenes,” said Rami Khouri, a senior fellow at Harvard’s Kennedy School and professor at the American University of Beirut. “But what MBS has done is centralize power in every major sphere of life into his own two hands. He has control over political affairs, religious, economic, oil, military, social, media affairs. He controls the levers, directly or indirectly, of every major dimension of life. All the rules have been changed unilaterally.”

“Unlike his predecessors, who have consistently jailed activists and dissenters, MBS is now pre-emptively locking up those who might, in the future, oppose him in some way.”

This has allowed the crown prince to institute drastic reforms in what feels like lightning pace, but, Khouri added, “With this kind of top-heavy rule, there is no room for political or civil discourse. MBS doesn’t want any accountability, and he has made clear he wants to be 100 percent in charge of the narrative.” This, Khouri speculated, is the real reason behind the gag orders and arrests. “Unlike his predecessors, who have consistently jailed activists and dissenters,” Khouri said, “MBS is now pre-emptively locking up those who might, in the future, oppose him in some way.”

The diversity of those targeted is striking, encompassing dozens of conservative religious elites, as well as progressively minded figures such as al-Hathloul. Though the state has continued to use anti-terrorism laws to justify the detentions, the lock-up of al-Hathloul and the other May arrestees was among the most aggressive the country has seen yet, said Zayadin. “In this case, you saw an active smear campaign, linking these activists to foreign governments, especially Qatar,” she said. “This seems unprecedented, to be splattering the women’s faces with the word ‘traitor’ across the front pages of the media. It’s dangerous and stigmatizing. It seems like a push to end their careers in activism or keep them in jail a very long time.” In other arrests, however, no reasons are given, with detainees simply vanishing into the penal system’s inscrutable folds. Such cases are on the rise, added Zayadin. Earlier this year, Human Rights Watch reported a rapid increase in arbitrary detentions, with over 2,000 new cases between 2014 to 2018.

This new sense of vulnerability has all but halted any grassroots movement for reform. “People spent years slowly building momentum around causes related to social, civil, and political rights, and for the moment, it appears to be all but squashed,” said one activist, now living abroad. “It’s very disheartening.” She continued, “The cost has become too high for most of us — there’s a sense that anything could happen if the government decides to target you. We see human rights groups pointing the finger at Saudi after each arrest, but nothing happens. Saudi Arabia is even on the Human Rights Council!” — a reference to the kingdom’s seat on the U.N. body. “With no outside pressure, why would the government change?”

JEDDAH, SAUDI ARABIA - JUNE 21:  Guests chat at Medd Cafe and Roastery, a popular hangout where young Saudi men and women mix together freely, on June 21, 2018 in Jeddah, Saudi Arabia. The Saudi government, under Crown Prince Mohammad Bin Salman, is phasing in an ongoing series of reforms to both diversify the Saudi economy and to liberalize its society. The reforms also seek to empower women by restoring them basic legal rights, allowing them increasing independence and encouraging their participation in the workforce. Saudi Arabia is among the most conservative countries in the world and women have traditionally had much fewer rights than men.  (Photo by Sean Gallup/Getty Images)

Guests chat at Medd Cafe and Roastery, a popular hangout where young Saudi men and women mix together freely, on June 21, 2018, in Jeddah.

Photo: Sean Gallup/Getty Images

There are those who defend the government’s heavy-handed approach. Many Saudis, in private conversation, expressed approval of mass arrests of religious conservatives and for the state’s ostensible corruption purge. “I mean, if [MBS] hadn’t gotten rid of those clerics before allowing women to drive, for example, Twitter would have been a mess,” said one 31-year-old male banker, his animated speech weaving between Arabic and English. “These kind of changes have to come top-down. If we waited for society to be ready on its own, we’d never see women driving, we’d never see these changes.” I interviewed him in a Jeddah cafe, where he sat across from me, dressed in a traditional white thobe — the traditional ankle-length Saudi garment — and sporting an Apple Watch. “A few years ago, I could never have sat with a female friend like this in public,” he said, gesturing to the room. Around us, several co-ed clusters of young Saudis leaned over egg-shaped tabletops crowded with iced coffees. “We would have been terrified of the religious police. But now, things are changing almost day to day. And while it’s confusing, it’s also very exciting for us.”

It is undeniable that some Saudis, including many women, now enjoy greater rights and privileges than they have in recent history. It is also true that many are genuinely unaware of the state’s crackdowns on activists, said the Saudi journalist source. “Most of those arrests don’t make it on the public’s radar,” they said. “And when they do, the words ‘traitor’ or the suggestion that they are foreign agents is enough to scare people off the subject.” The state’s newly muscular presence in Saudi life further discourages people from political speech, the source went on. “There’s a paradox now that people are more socially free — they can go to the movies and, in some places, mix with the opposite gender — but they are more afraid than ever to speak their minds about the government,” the source said. “Especially with the war on in Yemen” — where a Saudi-led coalition has fought a brutal and heavily criticized three-year war — “there’s a new pressure to be patriotic. There’s a sense that things are very delicate right now. If you bring up political topics, you’ll see everyone go silent.”

Outside the kingdom, some Saudis are attempting to consolidate a resistance. A constellation of college students, exiled activists, academics, bloggers, and human rights advocates work to keep the issues of political repression in the eye of the international community. “We have to redefine what success means for activists, for now,” said one organizer in self-imposed exile. “The government is waging a PR battle, so we are attempting to do the same. We are trying to get the Western media and world leaders to see what is happening to human rights there, to put some pressure on MBS.” In many ways, these tenacious few represent the last significant counternarrative to MBS’s broadcast image of unfettered forward progress.

Their presence abroad also raises the question of the regime’s missed opportunity. By driving out diverse voices and pre-emptively silencing dissent, Saudi deprives itself of the ingenuity and vitality of many of its own. Domestically, too, the aggressive crackdowns are a risk: To accomplish the national transformation it seeks, Saudi Arabia will need the whole-hearted engagement of its vastly young population — a generation that may be turned off or driven away by government overreach.

Yet the government so far appears unfazed by criticisms and has enjoyed relative immunity in the wake of each crackdown. After a cursory flurry of attention following the arrests of al-Hathloul and others in May 2018, international interest in the cases waned and subsequent arrests attracted little attention. In one exception, the government of Canada very publicly took the Saudi government to task in early August, following the arrests of Badawi and al-Sadah. Since then, the two countries have exchanged a series of increasingly drastic reprisals, but the Saudi government remains unapologetic. “As long as MBS has the support of world powers like the United States, the UAE, and Israel, I don’t think he’s going to change,” Hala Aldosari, a fellow at Harvard’s Radcliffe Institute, said in a phone interview, her voice firm but strained. “Yet the activists and their allies feel they must continue doing what they can.”

Rami Khouri, too, is skeptical of the activists’ chances, but added that the volatility of MBS’s reign leaves many things open to question. “It’s hard to talk about what MBS might do — like Trump, he’s very bold, but inexperienced, and has a lot of power,” Khouri said. “So the question of what kind of opposition could emerge, especially inside the kingdom — that cannot be answered yet. It’s possible that there will be none. Historically, a lot of people get used to authoritarians and can put up with a lot — especially if there’s no mass atrocities and if their basic daily needs are maintained and improved.”

Increasingly, MBS’s future has been pinned on the success or failure of his economic agenda — and this may be the case for the future of political expression in the kingdom, as well. “Right now, there is some hope, some willingness to accept and follow MBS, even if there’s a sense that he’s being heavy-handed,  because people are hopeful that he can improve their financial well-being, their quality of life,” said the Saudi journalist.

The clock, however, is ticking. Some have begun to question the ability of the crown prince to deliver on his many lofty promises. Already, key components of the economic reform plan are in serious doubt — including the much-touted public offering of Saudi’s Aramco oil company. “If, a few years from now, people feel like they are still in the same position, or worse, economically, they might be less willing to put up with MBS,” the journalist added. Khouri agreed: “The social reforms — like concerts, like driving — have excited and distracted people for a time. But in the end, man doesn’t live by bread and concerts alone. Human beings want to be human beings. They want access to the totality of life, to have a voice, to be respected, to have a say in their own lives.”

If, in the meantime, the government continues its crackdowns on all dissent, it may find itself rebuffed by the same Western audiences it hopes to entice. “Going after civil society in such an aggressive way, MBS is shooting himself in the foot,” said Aldosari. “Maybe, when he was just arresting clerics, the Western world didn’t care. But arresting women, elderly people, respected academics, all of them nonviolent — this is a direct contradiction of his rhetoric of modernization and openness. And he can’t stop everyone who wants to criticize him. The world doesn’t work that way anymore. Even if he throws all the activists in jail, they started a work that will continue. It cannot be stopped.”

Sarah Aziza’s reporting from Saudi Arabia was supported by the Pulitzer Center on Crisis Reporting.

Top photo: People watch a projection of a portrait of Saudi Crown Prince Mohammed bin Salman during an event in Riyadh on Sept. 23, 2017, commemorating the anniversary of the founding of the kingdom.

The post Saudi Women Who Fought for the Right to Drive Are Disappearing and Going Into Exile appeared first on The Intercept.

Junk Arson Science Sent Claude Garrett to Prison for Murder 25 Years Ago. Will Tennessee Release Him?

On a Monday morning in late September, I arrived at a house in a gated subdivision in Alabama and asked for James F. Cooper, a retired agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives. A tall, sturdy man in his 70s came to the door a few minutes later. His white hair was in a slightly overgrown crew cut; he wore athletic clothes and navy blue Crocs. “What can I do for you?” he asked, stepping outside.

I wanted to talk about an old arson case he investigated in 1992: a fatal fire at a small, one-story house in Old Hickory, Tennessee, just outside Nashville. A 24-year-old woman named Lorie Lee Lance had died in the blaze. Her boyfriend, Claude Francis Garrett, was arrested for setting the fire. He swore he was innocent. But two separate juries convicted Garrett of murder, first in 1993 and then again in 2003. Cooper was the star witness for the state.

Cooper recalled the case. He also remembered my previous attempts to reach him about it, for a story I published in 2015. The case was fairly unusual, Cooper said. As a federal agent, he did not generally work local arson cases, but he’d been called by the Nashville Metro Police Department about a suspected homicide early in the morning. It was February 24, 1992. Cooper could still describe the scene, along with most of the story told by Garrett: After a night of drinking with Lance and her stepfather at a local bar, he had awoken to the house on fire. Garrett yelled for Lance and ran with her toward the front door, he said, but she turned back toward a room at the other end of the house, where she was later found dead from smoke inhalation.

cfg-lorie

Claude Francis Garrett and Lorie Lee Lance.

Photo: Courtesy of Claude Francis Garrett

The first clue that it was arson came from Fire Marshal investigator Kenneth Porter, who noticed a strong smell of kerosene upon entering the house. Shortly afterward, he found a large kerosene container. Garrett would say the couple used a kerosene heater, a common practice in the working-class neighborhood of Hopewell. But Porter’s suspicion deepened when he found large, irregular-shaped burns on the living room floor — a “pour pattern,” as Cooper would later explain on the stand. It was a telltale sign of the use of a liquid accelerant, he said, and a hallmark of arson scenes. After Cooper took over the investigation, he found additional clues that proved it was a murder. Most damning: The door to the room where Lance was found had reportedly been locked from the outside — “that was key,” Cooper told me.

At trial in 1993, Cooper gave expert testimony to bolster the state’s theory against Garrett: that he was an abusive boyfriend who locked Lance in the back room, poured kerosene throughout the house, lit it on fire, and left her to die. The jury found him guilty and sent him to prison for life. But it would not take long for doubts to emerge. Garrett’s original conviction was overturned when he discovered that the trial prosecutor had concealed a police report in which a key witness said the back-room door had been unlocked.

The investigation into the fire was looking increasingly like a relic from another age.

More significantly, in the decade between the first trial and the retrial, the field of fire investigation had radically transformed. Old assumptions about arson and fire behavior were debunked and new investigative methods were adopted. The so-called pour patterns found at the scene would come to be regarded as junk science. By the time of Garrett’s 2003 retrial, the investigation into the fire was looking increasingly like a relic from another age, resting on techniques that had long been discarded. Nevertheless, Cooper defended his findings on the stand and the jury sent Garrett back to prison.

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The one-story house in Old Hickory, Tenn., after the fire.

Photo: Courtesy of the family

My own understanding of the evolution of fire investigation came partly from Cooper’s division of the ATF. When I visited the Nashville field office in 2014, agents helpfully explained the modern approach to potential arson crimes, based on the scientific method and ongoing research into fire behavior. It seemed clear that the ATF was on the cutting edge of fire investigation. But this only made Garrett’s conviction more vexing — and his cries of innocence more compelling. Given that the investigation into the fire was rooted in old practices and theories, shouldn’t someone be giving his case a second look?

Cooper did not wish to revisit the case when I first sought to interview him in 2014. Neither did the two prosecutors who tried Garrett, although both were at least willing to briefly discuss the case. One of them — Jon Seaborg, who handled the retrial — acknowledged the challenge of outdated forensics. “As the science changes somebody needs to pay attention to it,” he said, adding “I don’t know how you do that.”

Regardless, Cooper was the person I had been most anxious to reach. Although he retired before the 2003 retrial, it was unfathomable that he would have remained unaware of the sea change in fire investigation since 1992. Yet he had repeatedly rebuffed my attempts to speak to him, even rejecting a list of questions sent via a colleague at the ATF. Now, as we spoke on his doorstep in Alabama, I repeatedly offered him an envelope containing a pair of scientific reports on the fire in Old Hickory. Written in 2016 by a group of renowned fire scientists who had reviewed Cooper’s investigation, the reports were firm in their conclusions: There was no evidence to support a determination of arson in Garrett’s case. “The central piece of evidence of the use of an accelerant is now recognized as a myth,” one of the authors explained. “A modern fire investigator would not find that this fire was incendiary.”

Cooper did not want the envelope. “I stand by my report,” he told me. He did not appreciate other experts second-guessing his work — especially people who had not worked the scene themselves. “My rule of thumb is ‘Were you there?’” he said. It echoed Cooper’s testimony during cross-examination in 2003. “If I’m proven wrong, I will admit I am wrong,” he said. “But on this one, no sir. I was there. I saw it with my eyes.”

Convictions Stuck in Time

In the 3 1/2 years since I first wrote about Garrett’s case, several people have been exonerated in old arson cases. Their cases are included in the National Registry of Exonerations, which tracks cases involving false or misleading forensic evidence. William Amor was acquitted in an Illinois retrial earlier this year, more than two decades after being convicted of killing his mother-in-law in a 1995 fire. Adam Gray was exonerated in 2017 for setting a fire that killed his upstairs neighbors in Chicago in 1993. And Herbert Landry was exonerated last year of trying to burn down his apartment complex in 2006; investigators found “pour patterns” like those at the scene in Garrett’s case. Other arson defendants have had their convictions overturned or reduced without being declared innocent. They are not included in the registry, making a tally hard to come by. Among them is Leticia Smallwood, who was finally released in Pennsylvania this year, after more than four decades in prison on dubious arson charges.

Despite the inescapable reality that flawed fire investigation methods once sent innocent people to prison, most states have taken no systematic steps to revisit old arson cases. A more common response has been to sweep wrongful convictions under the rug. In the case of Angela Garcia, which I wrote about in 2017, the Cuyahoga County Prosecutor’s Office spent months delaying an evidentiary hearing that would likely have dismantled their case against her, only to suddenly offer her a deal if she pleaded guilty right then and there. Despite swearing her innocence for the fire that killed her two daughters, Garcia tearfully took the deal. She is slated for release in 2022.

Now Garrett, too, has a shot at release. This year marked his 25th in prison, making him eligible for a parole hearing. On October 8, he will go before the Tennessee Board of Parole at Riverbend Maximum Security Institution in Nashville. In theory, he has a decent chance: Garrett has been what is often described as a “model inmate,” with a clean disciplinary record and a long list of people willing to vouch for his character. But such things can only take Garrett so far. In Tennessee, as in most states, parole hearings are often little more than a referendum on the original offense, no matter how much a person may have changed behind bars. For those who insist upon their innocence, there’s another dilemma: the expectation that there be a display of remorse for their crime.

Garrett has always said he will not apologize for a crime he did not commit. But forcefully invoking his innocence before the board could backfire.

Garrett has always said he will not apologize for a crime he did not commit. But forcefully invoking his innocence before the board could backfire. A safer route would be to rely on the numerous letters sent on his behalf, which argue that Garrett is a worthy candidate for release who has served his minimum sentence and deserves a chance to thrive on the outside. Still, he wants the parole board to understand the injustice of his case. Among the people Garrett has asked to speak at the hearing will be one of his most passionate advocates, Stuart Bayne, a veteran fire investigator based in East Tennessee. Bayne was the defense expert at Garrett’s 2003 retrial. For him, the hearing is a chance to correct an egregious wrong that has plagued him for over 15 years. In his letter to the parole board, Bayne called Garrett’s case “a classic example of injustice.”

“Tremendous advances in the understanding of fire behavior have occurred since 1992,” Bayne explained. Enclosed with his letter were seven flash drives, one for each member on the board. They contained his own reports on the case, a statement from Garrett, and the pair of expert reports I tried to show to Cooper at his house. If anyone is in a position to take them seriously now, it’s the board. “Please, please Mr. Chairman, distribute one to each member,” Bayne wrote. “Please, please, review the files.”

TheIntercept_2018Story-7558-1538700395

Stuart Bayne, a veteran fire investigator, photographed at a home he was inspecting in 2015.

Photo: Tamara Reynolds for The Intercept

“Seeking Justice Through Fire Science”

From the moment I began looking into the Garrett case in 2013, it was impossible to miss the parallels to a more famous case — that of Cameron Todd Willingham, executed in Texas in 2004. The fires in their respective cases had occurred just two months apart — and both men were convicted largely on circumstantial evidence. In both cases, neighbors who initially described panicked behavior at the scene would later come to believe that it was just a larger deception. But most compelling was the fact that the evidence in both cases included “pour patterns” that had been disastrously misinterpreted.

I knew from Willingham’s case that burn marks once associated with arson could actually be the result of a long-misunderstood phenomenon called “flashover” — a transition phase during which a room’s contents simultaneously ignite. The physical evidence left by a “post-flashover fire” includes burn marks and patterns that form depending on factors like oxygen and ventilation, but which were once believed to be evidence of an ignitable liquid. After meeting Bayne in 2013, he gave me repeated lessons in such fire scenarios. At one meeting, he had me watch a clip from a short film by the National Fire Protection Administration called “Countdown to Disaster.” It showed how quickly and dramatically something like a smoldering cigarette dropped on an upholstered chair could lead to a conflagration. It also illustrated his own theory of how the fire in Garrett’s case started — a cigarette left unattended on a loveseat in the living room after a night of drinking.

** ADVANCE FOR SUNDAY SEPT. 27 ** FILE - In this Tuesday, May 2, 2006  file photo, Judy Cavnar, of Ardmore, Okla., a cousin of executed Texas prison inmate Cameron Todd Willingham, displays a picture of him during a news conference in Austin, Texas. Willingham always maintained he was innocent of setting the fire that killed his three small children two days before Christmas in 1991, and even the prosecutor who put him away now admits the arson investigation was "undeniably flawed." Says Innocence Project director Barry Scheck of Willingham: "There can no longer be any doubt that an innocent person has been executed  (AP Photo/Harry Cabluck, file)

Judy Cavnar, a cousin of Cameron Todd Willingham, who was executed in 2004, holds up a picture of him during a news conference in Austin, Texas, on May 2, 2006.

Photo: Harry Cabluck/AP

There was an additional link between Garrett’s case and that of Willingham: a leading fire scientist named Gerald Hurst, renowned in Texas for his work on arson cases — and most famous for trying to intervene before Willingham was executed. Garrett had written to Hurst before his 2003 retrial. Hurst offered to testify on Garrett’s behalf pro bono, but Garrett’s attorney hired Bayne instead. When I interviewed Hurst at his Austin home in 2014, he remembered it well. “It’s a case in which the investigation was a typical piece of crap,” he said.

Like Willingham’s case, the fire in Old Hickory had occurred at a moment when fire investigation was on the cusp of a revolution. In 1992, the National Fire Protection Administration published “NFPA 921,” which set forth a new set of guidelines for fire investigators, applying the scientific method to fire scenes rather than relying on investigators’ observations and experience. At first, “nobody accepted it,” Hurst said. Instead, professional fire investigators spent the next several years looking for ways to get around it. If Garrett’s 1993 trial was too early for the teachings of “NFPA 921” to have been absorbed, by 2003, they were more firmly established. Cooper would have known about them by then — “if he wanted to know,” Hurst said.

“It’s a case in which the investigation was a typical piece of crap.”

Hurst’s own foray into criminal cases came in the mid-1990s, when he testified in the trial of a woman named Sonia Cacy. She had been convicted of murdering her uncle in a fire and was facing a retrial. Like Bayne in Garrett’s case, Hurst was unable to sway the jury, and he was scarred by the outcome. “I had to get her out,” Hurst said. When Cacy went up for parole, Hurst gave a presentation to show that the fire scenario had been impossible. The parole board granted her parole and she was released, although it would take another 20 years for her to be exonerated.

Cacy’s case was highly publicized. But it was the Willingham case that broke into mainstream consciousness, Hurst said. “Every fire investigator in the country knows Willingham didn’t do it. Everyone,” he told me. It helped attract new fire experts to his cause, including chemists and engineers — a rarity among fire investigators, most of whom come from firefighting or law enforcement backgrounds. It also helped shift the perception of defense experts in arson cases, who were generally dismissed as “high-priced defense whores,” according to Hurst. “It was an unsavory sort of profession. How dare you work against the noble police? The noble fire marshals? The noble ATF?”

Hurst passed away just a few weeks after The Intercept published my story about Garrett. By then, the article had reached a group of experts who review old fire cases pro bono. They convened remotely under the banner of the Tetrahedron Committee, a loose consortium of fire scientists and veteran investigators started in 2007. The title is a reference to the four factors that combine to generate fire: fuel, heat, oxygen, and a chemical reaction. The committee’s motto is “Seeking Justice Through Fire Science.”

In April 2016, Craig Beyler, a respected Maryland-based fire engineer — and the author of a famed report on the Willingham case — produced an assessment of Garrett’s case on behalf of the Tetrahedron Committee. It echoed what Bayne had explained to me over and over again beginning in 2013: The investigation had been fatally flawed. The house was filled with furniture, paneling, and materials that were critical to explaining how the fire started and spread. Yet Porter, the fire marshal investigator who was first on the scene, did not bother to note this evidence. “As was common in the day, he simply removed all the contents of the room and hosed out the room to display the floor damage pattern,” Beyler wrote. “He treated the remains of the room contents as an obstruction to viewing the floor, rather than as evidence to be studied. All the contents were simply thrown out into the yard.”

The same month, a renowned fire scientist named John Lentini submitted an affidavit to Garrett’s federal public defender. Lentini drew from the history he lays out in his textbook, “Scientific Protocols for Fire Investigation,” to show how Cooper was emblematic of the initial resistance to “NFPA 921.” Though there had been a marked shift around 2000, “when this case was tried in 2003, some fire investigators, including Agent Cooper, still believed that by looking at the shape and texture of burning on the floor, they could infer the presence of ignitable liquids, even if subsequent laboratory analysis failed to reveal the presence of any such residues,” Lentini explained. Indeed, while “Cooper repeated the phrase ‘pour pattern’ over and over in his testimony,” no kerosene residue had been found in the flooring samples.

Lentini’s affidavit also contained evidence that was a revelation to Garrett — and which he believes should exonerate him once and for all. In 2013, researchers published a study called “Forensic Analysis of Ignitable Liquid Fuel Fires in Buildings,” sponsored by the National Institute of Justice. “What they learned is that ignitable liquids only burn for a very short time in fires, and do not cause the kind of charring found on the floor in the Garrett residence,” Lentini wrote. The photos from the scene showed the charring to be too deep, Lentini explained. In other words, it “could not have been caused by an ignitable liquid. Agent Cooper’s testimony on this point was scientifically unsupportable and erroneous.”

Tunnel Vision

As I listened to Cooper’s recollections of the fire in Garrett’s case, I was struck by his remarks about pour patterns, which sounded far less cavalier than what I recalled from the trial transcripts. On the stand in 1993, Cooper had not only insisted that the marks were proof of a liquid accelerant, he had also claimed to be able to tell the difference between a deliberate pour and a spill. Now Cooper explained the need for caution. He recalled a different fire scene where he discovered what he believed to be pour patterns, only to be told by a forensic chemist that the marks were the result of a varnish that had been applied to the floor. Regardless, Cooper remained confident about the ones in the Garrett case. “I don’t make my determination by one thing, like pour patterns,” he told me. He looked at the totality of the evidence.

Cooper retained a trait that is a trademark of certain old-school fire investigators: a deep belief in his own instincts. “Can you tell from looking at a house where a fire started?” he asked me. No, I said. “See, I can,” he responded. “I have the advantage.” In reality, determining a fire’s point of origin requires far more than visual analysis. But as with any expert witness, the credentials of an ATF agent can impress a jury no matter how flawed their testimony. In the Angela Garcia case, Cleveland prosecutors struggled to win a conviction — her first two trials ended in hung juries — until they bulked up their witness list at her third trial, adding an ATF agent who insisted he could see a pour pattern in a photograph. “I don’t care what the NFPA says.”

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The area just inside the front door of the house in Old Hickory, Tenn.

Photo: Courtesy of the family

Such witnesses supported what Hurst told me about the ATF’s old role investigating local fires: that they were not brought in to provide their independent assessment of a fire scene so much as to make the state’s case. One of Garcia’s defense experts explained why this was so dangerous. Even if an ATF agent was “as honest a human being as exists on the face of the earth,” he said, “you’ve got this huge confirmation bias coming in.” Indeed, while Cooper handled the scene in Garrett’s case firsthand, he was called only after Porter believed that arson had been committed. “They immediately called those burns pour patterns,” Hurst said. “They immediately called the kerosene they found an accelerant. You’ve already prejudiced the case beyond redemption when you do that.”

“Agent Cooper was shockingly uninterested in the fact that the fire left carbon deposits on the sliding bolt showing that the bolt was slid to the right.”

Tunnel vision would certainly help explain Cooper’s sloppy investigation. “I don’t remember if I ever interviewed Garrett,” he said. He didn’t. Nor did he speak to the firefighters at the scene. It was not even clear how he became convinced that the latch to the back door had been locked. Neither the door nor the lock was removed or studied, let alone presented to the jury as evidence. If Cooper had scrutinized this crucial piece of evidence, Lentini wrote in his affidavit, he would almost certainly have found that the latch had been in an unlocked position. “Agent Cooper was shockingly uninterested in the fact that the fire left carbon deposits on the sliding bolt showing that the bolt was slid to the right at the time of the fire,” he wrote.

Cooper offered no explanation for why he did not study the latch or the door. And he flatly denied saying something that had jumped out at Bayne when he first started studying the case: that Garrett likely singed his face from leaning down to light the kerosene in the living room. Cooper had compared it to lighting a gas grill, according to transcripts of his trial testimony — “sometimes it won’t ignite and you stick your head down there to see and you’ve got this open flame that comes back with a POOF!” Such a “flash back” of kerosene vapors was “impossible,” Lentini wrote.

“He’s right,” Cooper told me. He could not imagine having made that claim, he said. I told him it appeared in the transcripts, but he protested that did not remember. “I would be crazy to say that.”

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The entrance to Riverbend Maximum Security Institution, in Nashville, Tenn., in 2015.

Photo: Tamara Reynolds for The Intercept

The Dilemma of Remorse

The last time I saw Garrett was in early August, in the large visitation room at Riverbend. He looked the same as when I’d last seen him, perhaps a bit sunburned — he recently traded his maintenance job for work doing landscaping on the grounds of the prison. Like his last job, it pays 50 cents an hour. In his 60s, Garrett does what he can to stay healthy. He lifts weights and runs a 5K every week, he says, and tries to buy food from the commissary. “I eat a lot of tuna,” he said.

Directly behind us in the visiting area was a conference room where the parole hearing would take place, Garrett told me. I had been told that participating board members would attend via video conference, if a member attends at all. Sometimes it is only a representative who comes on the board’s behalf.

When we met, Garrett was still considering the dilemma of remorse. It’s not that he has no regrets — he has many, he told me. The man he was in 1992 was a different person — and certainly far from perfect. When it came to the night of the fire, “there are so many things I regret,” he said. If they hadn’t been drinking or smoking, he said, maybe Lance would still be alive.

Garrett hoped that Lance’s family might be swayed by the new reports from Lentini and the Tetrahedron Committee. It seemed unlikely. When I spoke to Lance’s sisters in 2014, they remembered Garrett as very abusive and remained convinced that he was guilty, no matter what the science said. So did other relatives, at least one of whom was likely to attend the parole hearing to argue against Garrett.

Should Garrett win his freedom, he has already been offered a place to stay. He is optimistic that he can find work. Decades ago, before he went to prison, he spent time as a trucker hauling drywall. Maybe he could go back to driving a truck, he told me. He may not have a traditional resume, but his inmate file is filled with certificates and letters marking his completion of educational programs. In 2010, he completed a 30-week curriculum on “Developing and Improving Life Skills.” “As a graduate, you have accomplished a great goal that will assist you in your future endeavors,” reads a 2010 letter signed by then-Gov. Phil Bredesen, who is now running for Senate. “The state of Tennessee is proud to call you a Tennessean.”

To those who have gotten to know to Garrett in recent years, the sentiment is more than just a line in a form letter. Jeannie Alexander, the former prison chaplain at Riverbend, describes him as a positive influence. “I’ve seen this often, but I think a lot of people would not expect to find someone [in prison] who is genuinely compassionate and who has just a great deal of concern about the community that they live in,” she said. “He mentored a lot of young guys coming in with life sentences.”

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Garrett, healing from burns he sustained in the fire in 1992.

Photo: Courtesy of the family

The description echoes that of a man who emailed me in 2016, after reading my story. He had done time at West Tennessee Penitentiary in the early 2000s — Garrett had been his cellmate, he said. In fact, he had done one of Garrett’s tattoos, maybe the one of Marvin the Martian, he said. “Claude is a good guy, very direct, and the perfect cellmate for a kid turning 21 in prison,” he wrote. He occasionally searched for Garrett online, hoping to see him on Facebook, “free and happy.” He was dismayed to find that he was still incarcerated.

In late September, Bayne met with two of Garrett’s longtime advocates at a Panera on Nashville’s West Side. The three strategized around the hearing and shared their expectations and concerns. Dozens of letters have been sent to the board on Garrett’s behalf, and the hearing was shaping up to be well-attended. Dwight Scott, Garrett’s old defense attorney, plans to speak, along with Bayne. “I’ve never had a verdict which so undermined my confidence in the jury system, or which so depresses me to this day,” Scott wrote Garrett in a letter earlier this year. Garrett’s mother, who is 83, insisted she would make the nine-hour drive from Hiawatha, Kansas, even putting new tires on her truck. But Garrett asked her to write a letter instead.

On September 28, Bayne sent out two last letters. The first went to the chairman of the parole board. Rather than discuss the fire, he described Garrett as a person, a man with whom he has “exchanged more than 100 personal letters” over the years. “He has earned my trust and respect,” Bayne wrote. He is eager to help Garrett find a home and a job, particularly if he moves to East Tennessee.

The second letter was addressed to Cooper. Bayne had enclosed a flash drive containing the reports from Lentini and the Tetrahedron Committee, along with additional materials. He urged him to look at them. “Were I in your shoes, sir, I would not want to,” he conceded. But he would also realize he had no choice. “I ask you to revisit the event and re-evaluate the evidence while answering the question all we investigators ask ourselves, ‘Did I make the right call?’”

Top photo: Claude Francis Garrett.

The post Junk Arson Science Sent Claude Garrett to Prison for Murder 25 Years Ago. Will Tennessee Release Him? appeared first on The Intercept.

California Border District Reverses Course on a Key Component of Operation Streamline

Just two months after Operation Streamline was contentiously rolled out to the Southern District of California, the court suspended a major aspect of the fast-track prosecution program, which aims to federally prosecute and sentence people who cross the border without authorization in a matter of minutes. Judges are no longer accepting guilty pleas on the same day an individual first appears in court, marking the end of a practice that defense attorneys have characterized as “coercive” for the overwhelming pressure it places on a defendant to plead guilty before they have a chance to consider a possible defense.

The change occurred on the afternoon of September 17 in the special courtroom set aside for illegal entry misdemeanor cases, when Magistrate Judge William V. Gallo suddenly announced that the district court judges, who set policy for the Southern District of California, had decided at a lunchtime meeting that “effective immediately, there will be no same-day pleas.”

Earlier that morning, defense attorneys had met with their clients inside a converted garage in the basement of the federal building in downtown San Diego that attorneys have referred to as the “dungeon.” Many of their clients had spent several nights sleeping on the floor of Border Patrol stations and were still wearing the clothes they were arrested in.

According to defense lawyer Jami Ferrara, the head of San Diego’s Criminal Justice Act Panel, the decision came after Jan Adler, the head of the magistrate judges (who have been tasked with presiding over the illegal entry courtroom), proposed to the district court judges that the court no longer accept same-day pleas.

The magistrate judges have seen their court calendars balloon since the start of Operation Streamline in July, with misdemeanor sentencing stretching well into the evening — often extended by the objections of federal defenders, who have questioned the legality of the arrangement.

“We made a concerted effort to fight this process, and that hasn’t happened in any of the other districts where this process was instituted,” Ferrara told The Intercept.

For years, the Southern District of California had been the sole border district to hold off on the implementation of Operation Streamline, which first originated under the George W. Bush administration. But after the massive rise in prosecutions filed for misdemeanor illegal entry following Attorney General Jeff Sessions’s April announcement of the Justice Department’s new “zero tolerance” policy, the district relented and instituted the program. Problems with the expedited prosecution process quickly began to pile up.

Without much time to track down birth certificates or other official documentation, prosecutors repeatedly filed charges against minors, and in at least one instance, a judge sentenced a young Mexican woman under the age of 18. Ordinarily, minors from Mexico caught crossing the border are returned to their country as soon as possible, and the cases of those charged with more serious crimes, like importing drugs, are handled in state courts, which have greater protections for minors.

Conditions of confinement for those being prosecuted under Operation Streamline have also been an issue, as the federal government has sought to relieve overcrowding in the federal jail system by keeping those charged with misdemeanor illegal entry in the custody of Border Patrol, instead of the U.S. Marshals Service. This has resulted in dozens of people sleeping on the crowded floors of Border Patrol stations, which are poorly equipped to house individuals for long periods of time. This extended confinement has also led to allegations of abuse — in July, a Mexican citizen said a Border Patrol agent forced him to clean the agent’s truck and then shut him inside of it with the air conditioning at full blast.

On September 26, initial appearances for nearly two dozen people charged with illegal entry finished within an hour, a dramatic change from weeks before under the full version of Operation Streamline. While defendants will continue to appear for initial hearings en masse in a special courtroom, defense attorneys now have the opportunity to look into the charges against their clients and determine whether taking a plea deal would be wise. Their clients will also have the opportunity to have their bail posted or remain in the custody of the U.S. marshals.

While many plea deals offered by the U.S. Attorney’s Office have been for time served, a misdemeanor illegal entry conviction can have serious negative impacts on an individual’s future immigration status in the United States, exposing them to a possible felony charge if they attempt to re-enter the country.

According to the latest data obtained by the Transactional Records Access Clearinghouse, prosecutions for misdemeanor illegal entry in the Southern District of California skyrocketed to 928 cases in July, an 889 percent increase over the same month the previous year. Between April, when “zero tolerance” was announced, and June, the last full month before Operation Streamline was implemented, however, the number of monthly prosecutions had already risen from 153 to 882. So while Operation Streamline might now be seriously curtailed, as long as “zero tolerance” remains in full effect, prosecutions will most likely continue to reach record levels.

“The Department of Justice, to my knowledge, has not retreated from prosecuting every single 1325 [misdemeanor illegal entry] case referred to DOJ by DHS. That policy is still in effect,” said David Loy, legal director of the American Civil Liberties Union of San Diego and Imperial Counties, whose organization applauded the decision by the district court. “The federal bench in San Diego made their decision as a good faith exercise and because it was the right thing to do as a court which has the prerogative to decide how to process the charges filed by the executive branch.”

The U.S. Attorney’s Office declined to comment on the court’s decision.

Defense attorneys continue to have serious concerns with the equal protection issues generated by the existence of a separate courtroom that deals solely with misdemeanor illegal entry cases and excludes misdemeanors that involve American citizens. Still, they see the decision to end same-day pleas as a huge step back from the brink for both defendants and the court itself.

“These same-day plea deals just shouldn’t be what the court should value,” Ferrara said.

Top photo: A U.S. Border Patrol agent patrols a section of the U.S.-Mexico border fence in San Diego, Calif., on July 16, 2018.

The post California Border District Reverses Course on a Key Component of Operation Streamline appeared first on The Intercept.

On Russian TV, Brett Kavanaugh Is a Victim of “the Plague of Malignant Feminism”

The Brett Kavanaugh hearings are being watched closely around the world, not least in Russia, where this week the host of a leading news show on state-run television defended the Supreme Court nominee as a victim of “the plague of malignant feminism,” a global pandemic that has previously felled Harvey Weinstein, Cristiano Ronaldo, and Ian Buruma.

In a fact-challenged monologue helpfully subtitled on YouTube by Russia’s state-owned news organization, Vladimir Putin’s favorite pundit, Dmitry Kiselyov, dismissed the sexual assault accusation against Kavanaugh, by “physics professor Christine Blasey Ford,” as “like a joke.”

Kiselyov also warned Russian viewers to beware of what he termed an illness “spreading from America to Europe and toward Russia,” in which “the infected ladies project their sexual fantasies onto men who have a successful life and career, accusing them of attempted rape.”

Kiselyov, whose weekly diatribes on the supposed threats to white male supremacy in Russia posed by foreign plotters and native homosexuals would not look out of place on Fox News, was chosen by Putin in 2013 to lead an official news agency charged with explaining Kremlin policy to the world.

But, unlike the Kremlin-financed Russia Today or RT — a network of channels in English, Spanish, German, French, and Arabic that exist to influence global public opinion — Kiselyov’s weekly, two-hour news review show is aimed squarely at explaining world news events to Russians, on the influential, state-controlled news channel.

Among the other victims of the feminist plot, Kiselyov said, were figures as diverse as the Fox News contributor Kevin Jackson, who was fired for calling Kavanaugh’s accusers “lying skanks,” Les Moonves, the former chair of CBS, and Ian Buruma, the New York Review of Books editor who lost his job after publishing an essay by Jian Ghomeshi, in which the disgraced Canadian radio host dismissed accusations of sexual assault against him.

The post On Russian TV, Brett Kavanaugh Is a Victim of “the Plague of Malignant Feminism” appeared first on The Intercept.

Citing Trump’s Racism, a Federal Judge Restores Program for Immigrants Fleeing Wars and Disasters

A federal court in San Francisco has suspended the Trump administration’s termination of Temporary Protected Status protections for hundreds of thousands of immigrant refugees living in the United States.

On October 3, U.S. District Court Judge Edward Chen issued a preliminary injunction that prohibits the administration from stripping TPS protections from immigrants who fled wars and natural disasters in El Salvador, Nicaragua, Haiti, and Sudan between 1997 and 2010 to seek refuge in the U.S. The injunction will allow these immigrants to remain in the country legally and with work authorization until the lawsuit challenging the administration’s TPS terminations is resolved in the courts.

With the government almost certain to appeal the decision, and with the liberal Ninth Circuit Court of Appeals likely to uphold it, this ultimately leaves the fate of TPS  in the hands of the Supreme Court. The futures of TPS holders and their families thus hang on the outcome of the confirmation battle over Judge Brett Kavanaugh, or a replacement nominee. For the time being, however, this ruling affords them a temporary reprieve.

Congress created the Temporary Protected Status designation in 1990 to extend safe haven to foreign nationals fleeing humanitarian catastrophes. Under the law, the Secretary of Homeland Security periodically reviews the conditions in the countries to which the government has extended TPS designations, and determines whether to temporarily extend or terminate that status. Prior administrations have repeatedly extended the TPS designations for El Salvador, Nicaragua, Haiti, and Sudan, deeming the conditions in those countries unsafe for TPS holders to return to them. The Trump administration, however, has elected to terminate TPS status for all four countries.

The court ruled that there is ample evidence that the administration’s termination decisions were motivated by President Trump’s racism. Trump has famously referred to Mexican immigrants as “rapists,” called for a “shutdown of Muslims entering the United States,” claimed that 15,000 recent Haitian immigrants “all have AIDS,” contended that Nigerian immigrants would never “go back to their huts,” and, in a discussion about TPS, wondered why the U.S. was admitting immigrants from “shithole countries” instead of places like Norway. Judge Chen pointed to these examples as “evidence that President Trump harbors an animus against non-white, non-European aliens.”

Trump’s openly displayed racial prejudices, the court concluded, may have influenced former Acting Secretary of Homeland Security Elaine Duke and current Secretary Kirstjen Nielsen to terminate TPS status for the four poor, non-white countries regardless of whether the conditions in those countries justified it. Following their lead, agency staffers appear to have suppressed, obscured, and cherry-picked data in their reviews of country conditions in order to conform to this “pre-ordained result desired by the White House.”

In the most flagrant example of this dynamic, cited in the judge’s ruling, U.S. Citizenship and Immigration Services submitted a memo in August 2017 to Acting Secretary Duke, based in part on State Department assessments, asserting that country conditions in Sudan — namely, civil war — remained unsafe and that “termination does not appear to be warranted.” It noted that the State Department recommended an 18-month extension.

Then, a week and a half later, USCIS sent a second memo, repeating all of the same points about the dangerous conditions in Sudan, but this time, paradoxically, recommending termination.

The following day, Frank Cissna, who would go on to lead USCIS, remarked in an email, “The memo reads like one person who strongly supports extending TPS for Sudan wrote everything up to the recommendation section, and then someone who opposes extension snuck up behind the first guy, clubbed him over the head, pushed his senseless body out of the way, and finished the memo. Am I missing something?”

Gene Hamilton, a DHS lawyer who has worked in the past for ICE and for Jeff Sessions, asked Kathy Nuebel Kovarik, a USCIS chief who once directed her staff to dig up statistical dirt on Haitian TPS holders, to “repackage” the report. A few days later, a new version of the report was issued, this time recommending a six-month extension.

This was, once again, not good enough. With Hamilton’s further input, yet another version of the report on Sudan was issued, now suddenly noting “emerging progress and improvement in certain areas” of the country. This version again recommended termination, effective in 12 months’ time.

A DHS civil servant noted that this aggressively managed version of the report “could be read as taking another step toward providing an incomplete and lopsided country conditions presentation to support termination.”

Other reports followed the same pattern. On one memo, Kovarik suggested that “disasters” be replaced by “challenges.” In another, an adviser to Kovarik revised a report and informed its author, “I made the document fully support termination and provided comment boxes where additional data should be provided to back up this decision.”

Judge Chen regarded this bad faith process as lending merit to the plaintiffs’ claim that the TPS termination decisions violated TPS holders’ equal protection rights by racially discriminating against them. It also bolstered the plaintiffs’ charge that the government violated the Administrative Procedures Act, which prohibits agencies from arbitrarily changing the criteria by which they interpret and enforce existing laws.

In order to rule out reasons for extending TPS designations, three successive DHS secretaries under President Trump — Kelly, Duke, and Nielsen — interpreted the law as narrowly as possible, repeatedly insisting that the statute that created TPS required them to consider whether conditions pertaining only to the originating event — be it an earthquake, a hurricane, or a civil war — persisted in each country, and no other factor whatsoever. This, however, was a dramatic departure from past administrations, which conducted comprehensive reviews of country conditions, and accounted for a plethora of phenomena — armed conflicts, gang activity, economic malaise, subsequent natural disasters — that occurred in the years since the originating events, as part of their overall assessment of whether a given country was safe enough for its nationals in the U.S. to return to it. This arbitrary break from past practice, Judge Chen concluded, indicates that the administration may have violated statutory as well as constitutional law.

Overall, the ruling paints a picture of an executive branch that has aimed to derail a law meant to protect immigrants from humanitarian catastrophes, and has done so through calculated misapplication rather than through legislation, all in order to abide the President’s disdain for non-white people. In November of 2017, in an email to Chief of Staff John Kelly, Acting Secretary Duke put it plainly, explaining that her decision to terminate TPS for Nicaragua “will send a clear signal that TPS in general is coming to a close.”

“I believe it is consistent with the President’s position on immigration,” she continued.

Top photo: Ariely Murrilo, center, with her sister and grandmother, both U.S. citizens, and her mother, Milly, who is a TPS recipient from El Salvador, at the launch of the ‘TPS Journey for Justice Caravan’ outside City Hall on Aug. 17, 2018, in Los Angeles, Calif.

The post Citing Trump’s Racism, a Federal Judge Restores Program for Immigrants Fleeing Wars and Disasters appeared first on The Intercept.

Presumption of Innocence Is for Privileged Men Like Brett Kavanaugh, Not Laquan McDonald or the Central Park Five

I believe in the presumption of innocence. As an American, a lawyer, and a black woman, I believe it is perhaps the most important principle in our criminal justice system — a last bulwark against the structural momentum that incentivizes convictions over justice and minimizes the value of some lives under the pretext of protecting others.

The presumption of innocence is, in fact, the fundamental project of Black Lives Matter. The controversial movement, born from a controversial hashtag, was intended to elevate black lives not above others, but so that they are considered equally valuable. It’s a movement intended to call attention to the fact that some Americans, disproportionately black and poor, are frequently presumed guilty in extrajudicial contexts — killed by police officers who rarely face consequences; they are denied due process and the presumption of innocence.

The political right in this country has typically aligned itself behind law enforcement as a principle, regardless of how faithful individual officers have been to the duties that come with their shields. As a result, the presumption of innocence and other constitutional protections intended to safeguard the life and liberty of ordinary citizens have been of secondary importance to them, if they register at all.

That is, until Brett Kavanaugh.

A few weeks ago, news broke that a psychology professor named Christine Blasey Ford had come forward with an accusation that the Supreme Court nominee sexually assaulted her at a house party in 1982. Last Thursday, both Ford and Kavanaugh offered testimony to the Senate Judiciary Committee. Kavanaugh denied Ford’s accusations, but to most observers, Ford — measured and sincere where Kavanaugh was evasive and angry — appeared to be the more credible of the two.

Since the hearings, Republicans have rushed to explain and defend Kavanaugh’s furious testimony, framing his rage as the rational response of an innocent man falsely accused. Some conservatives have even abdicated the pretense of Kavanaugh’s innocence, writing articles arguing that “Kavanaugh should be confirmed to the Supreme Court even if he’s guilty.” The standard by which we should judge Kavanaugh, they seem to say, is beyond guilt or innocence. It’s something more. It’s beyond credibility. He’s literally beyond a reasonable doubt.

Tuesday night, at a rally in Mississippi, President Donald Trump expressed concern about what precedent a failure to confirm Kavanaugh would set. He lamented what it would mean if a stranger could cause a person to lose their job by merely making an accusation. “Guilty until proven innocent, that’s very dangerous for our country. That’s very dangerous for our country,” he repeated, emphasizing that in America, due process comes first.

Of course, he used to feel differently.

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Angela Cuffie speaks with reporters after a judge overturned the conviction of her brother, Kevin Richardson, and four other men who had been jailed in the Central Park jogger case. Behind Cuffie, Councilman Bill Perkins holds up an advertisement taken out by Donald Trump after the crime.

Photo: Mike Albans/NY Daily News Archive via Getty Images

On April 19, 1989, Trisha Meili was assaulted, raped, and nearly beaten to death while jogging in Central Park. Subsequently, five boys, then ages 14 to 16, were arrested and jailed for the assault. On May 1, 11 days later, and before the conclusion of any investigation, much less a trial, Trump spent $85,000 on a full-page ad in all four of New York’s major newspapers, including the New York Times, calling on New York to “BRING BACK THE DEATH PENALTY. BRING BACK OUR POLICE!”

Even if you remember the ad from when it ran, it’s worth taking another look at the small print today. “They must serve as examples so that others will think long and hard before committing a crime or an act of violence,” Trump inveighed. “I am not looking to psychoanalyze or understand them, I am looking to punish them. If the punishment is strong, the attacks on innocent people will stop.”

All five convictions were vacated in 2002, after Matias Reyes, a serial rapist and convicted murderer, confessed to raping Meili, and DNA evidence confirmed his guilt. To date, Trump has never apologized for calling for the deaths of these innocent children.

“At what point did we cross the line from the fine and noble pursuit of genuine civil liberties,” asked Trump in his 1989 ad, “to the reckless and dangerously permissive atmosphere which allows criminals of every age to beat and rape a helpless woman and then laugh her family’s anguish. And why do they laugh? They laugh because they know that soon, very soon, they will be returned to the streets to rape and maim and kill once again — and yet face no great personal risk to themselves.” They laugh, in other words, with impunity.

This week, in Mississippi, Trump was the one laughing. With an enthusiastic crowd behind him, Trump joked about Ford’s inability to remember certain details about the night of her alleged assault, 36 years ago: “How did you get home? ‘I don’t remember.’ What neighborhood was it? ‘I don’t know.’ Where’s the house? ‘I don’t know.’ Upstairs, downstairs, where was it? ‘I don’t know. But I had one beer.’” As the crowd behind him jeered, it was difficult not to recall Ford’s fragile testimony, during which she said one thing she could never forget was the laughter of her attackers, “indelible in the hippocampus,” still echoing 36 years later.

At last Tuesday’s rally, Trump seemed to consider, for a moment, that the claims against Kavanaugh might have merit. But it didn’t seem to matter. “People are saying, ‘well maybe it’s true.’ And because of the fact that maybe it’s true, he should not become a United States Supreme Court Justice,” he said. “How horrible is this? How horrible is this?” It wasn’t a denial. It was a rejection of the premise that anything, even a credible assault claim, should stand between Kavanaugh and his destiny.

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Judge Kavanaugh at his Yale commencement with his parents.

Photo: White House

How horrible is it for one extremely powerful man to be barred from ascending to an even higher, more influential position — at least while a credible claim of assault is investigated? Is it more horrible than condemning five minors to death without due process, 11 days after their arrest? A concern for “due process” was no bar against Trump’s public ire then. What does it say about Trump’s interest in deterring sexual predators that he won’t deny Kavanaugh a job promotion — even temporarily? What does it say about his concern for women and young girls who, like Ford, have been pinned to beds — muzzled by a forceful hand while another searches frantically for the borders of their bathing suits?

Kavanaugh is being cast as not just innocent, but chosen. “No. 1 in his class at Yale, perfect human being,” is how Trump described him Tuesday night. He was “destined for the Supreme Court.” “Top in his class at Yale Law School,” he emphasized again. “He’s led, like, a life that’s unbelievable. He’s had no problems.” How dare Democrats accuse him of a “gang rape!” averred Trump.

It was a rejection of the premise that anything, even a credible assault claim, should stand between Kavanaugh and his destiny.

It’s a heavy accusation indeed. But when the targets were Hispanic and black teenagers, Trump didn’t hesitate to declare that “CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS!” Today, the impulse to curb civil liberties in favor of safety is no more. Gone is the goal of disincentivizing bad behavior. There’s no “bad behavior” that merits keeping a good ol’ boy off the bench.

Trump finds it unconscionable that Kavanaugh — raised in a wealthy family, sent to a prestigious prep school, admitted to Yale as a legacy student, plucked to sit on the second most powerful court in the land (without ever having spent a day as a judge), and now nominated to the Supreme Court — might not get exactly what he wants. Who but the most egoistic narcissist would feel entitled to a job that only 113 Americans have ever had? Trump is angry on Kavanaugh’s behalf not because Kavanaugh earned a position on the Supreme Court, but because he sees infinite privilege as their shared birthright. It’s clear that Trump, who was recently exposed by the New York Times as having benefited enormously from his father’s fortune, both legally and illegally, relates personally to Kavanaugh in more ways than one. “I’ve had dozens of accusations like this against my myself,” Trump repeated several times last Tuesday. The conclusion to be drawn from that admission was tacit: I’ve been accused, yet I am president. Why should we start holding anyone responsible for sexual assault now?

Perhaps if the Central Park Five had gone to a prep school Trump would have been more sympathetic. But they spent their high school years, and beyond, in Rikers. Perhaps if Trump saw their lives as valuable, he would have hesitated before accusing children of “gang rape.” Perhaps he would not have casually tossed aside the importance of the presumption of innocence if one of those boys were in a position to help him, the way Kavanaugh is poised to protect Trump from the criminal consequences of the Mueller investigation. Perhaps.

CHICAGO, IL - OCTOBER 03: A police vehicle dash cam video of the moments after Laquan McDonald was fatally shot is displayed for jurors as Chicago police Officer Jason Van Dyke attends his trial for the shooting death of McDonald, at the Leighton Criminal Court Building on October 3, 2018, in Chicago, Illinois. Van Dyke is charged with shooting and killing black 17-year-old Laquan McDonald, who was walking away from police down a street holding a knife four years ago.  (Photo by John J. Kim-Pool/Getty Images)

Police dash cam video of the moments after Laquan McDonald was fatally shot is displayed for jurors as Officer Jason Van Dyke attends his trial for the shooting death of McDonald on Oct. 3, 2018, in Chicago, Ill.

Photo: John J. Kim, Pool/Getty Images

Another tearful testimony occurred Tuesday, this one in a Chicago courtroom. It was from Officer Jason Van Dyke, of the Chicago Police Department, who shot 17-year-old Laquan McDonald to death on October 20, 2014, almost four years ago. McDonald had a knife that night. And he was wielding it. But Van Dyke, standing 10 feet away, had a gun. His proximity to McDonald, was not the result of McDonald’s approach, but Van Dyke’s: Van Dyke testified that he drove up to McDonald in his squad car with the intention of knocking him over with his door. But his plan failed. Instead, he got out of the car and pointed his gun at McDonald.

Police video shows McDonald walking in the middle of the street, parallel perhaps, but not toward the officers who stood, guns drawn, to his left. Suddenly, seemingly out of nowhere, he falls to the ground, spinning from the force of the bullet and collapsing like a rag doll. The video has no audio, so it’s difficult to tell from looking, but an autopsy confirmed that Van Dyke emptied 15 more rounds into McDonald after he was on the ground. He fired until his gun was empty.

Van Dyke said he shot McDonald “in defense of his life.” He said he emptied his gun into McDonald because he thought that the 17-year-old was getting back up. “I could see him starting to push up with his left hand off the ground,” he said. “And I see his left shoulder start to come up, and I still see him holding that knife with his right hand, not letting go of it. And his eyes are still bugged out. His face has got no expression on it.”

The video shows none of this. And when the prosecutor asked Van Dyke to show where, on the tape, McDonald tried to get up, he said “the video doesn’t show my perspective.” When asked to tell the court what he said immediately after the shooting, he said he couldn’t recall. “I was still in shock.” When asked why he didn’t move away from McDonald if he felt threatened, he said he thought he did. He then shifted the blame to McDonald: “He could have made a decisive turn and walked in the opposite direction. He could have thrown that knife away and ended it all right then and there.”

Due process is not a shield behind which the privileged can duck the social consequences of their bad choices. It’s a bedrock principle, not a political playing card.

But the only one who acted with forethought that night was Van Dyke. It was Van Dyke who decided to get close to McDonald. He felt safe doing so because he knew he had a gun, and McDonald didn’t. Van Dyke knew that, if push came to shove, he could always kill McDonald if he got scared. He contemplated as much before he arrived on the scene, saying to his partner, “Oh my God, we are going to have to shoot the guy.”

I ask you to consider in what world does an armed police officer, safe in his car, minutes away from man with a knife, contemplate murder as a necessary recourse? In what world does he exit a car and approach an erratic young man with a knife unless he sees killing a suspect as a reasonable option? How might a person act differently if the murder of a 17-year-old weren’t so casually on the table? Might they keep their distance? Wait for the Taser team, which was en route, before approaching? Might they, at the very least, stop firing bullets into the young man once he lay prostrate on the ground?

What does it say about the value of a life when killing a suspect seems a reasonable path of first resort? And might this be evidence that all lives don’t matter in the eyes of the law?

A memorial to 17-year-old Laquan McDonald and other victims of violence at the Sullivan House Alternative High School in Chicago is seen on April 17, 2015. McDonald was shot 16 times by Chicago police Officer Jason Van Dyke in October 2014. A judge has ordered the video of the shooting to be made public. (Zbigniew Bzdak/Chicago Tribune/TNS via Getty Images)

A memorial to 17-year-old Laquan McDonald and other victims of violence at the Sullivan House Alternative High School in Chicago on April 17, 2015.

Photo: Zbigniew Bzdak/Chicago Tribune/TNS via Getty Images


The presumption of innocence is based on the principle that all human lives have inherent value and are worth protecting equally. It’s intended to protect the weak and the powerful alike from claims that would strip them of life and liberty. Due process is a call to inquire into facts: to hear and vet testimony, to consider memory lapses in context (be they Ford’s or Van Dyke’s), and to weigh the evidence impartially. It’s not meant to be a shield behind which the privileged can duck the social consequences of their bad choices. It’s a bedrock principle, not a political playing card. And it’s a right that should not be extended selectively based on race, class, or pedigree.

Republicans don’t want to see the Kavanaugh hearing as having to do with race, and in some ways I agree. It’s about more than just race. It’s about that fact that Kavanaugh is a member of a particular class in this country, overwhelmingly white, for whom the presumption of innocence is a birthright. This week, for once, Americans are asking that a member of this class be held responsible for his actions and denied a promotion — not that he be sent to jail, like the innocent teenagers of the Central Park Five, and not that he be murdered, like McDonald, who was sentenced to death for the crime of wielding a knife without judge, jury, or sentencing — without due process.

All that is being asked of the Republicans on the Senate Judiciary Committee is to not treat a seat on the Supreme Court like an entitlement.

All that is being asked of the Republicans on the Senate Judiciary Committee is that Kavanaugh be treated the same as ordinary Americans — the same as the middle- and working-class whites who cheered Trump on at Tuesday night’s rally would be treated. All that’s being asked is that Kavanaugh be judged like most Americans who didn’t go to Yale; whose lives aren’t so charmed as his; who aren’t considered “destined” to ascend to a lifetime appointment on the highest court of the land.

All that is being asked of the Republicans on the Senate Judiciary Committee is to not treat a seat on the Supreme Court like an entitlement. Due process is important. But this is not a trial. And a Supreme Court nomination is a privilege to be earned, not bestowed.

If they confirm Kavanaugh, the Republicans in the Senate will be abandoning all pretense that they care about meritocracy or the victims of crimes. They’ll be preserving the impunity of the elite, and they’ll be doing so with the imprimatur of average, everyday Republicans who will never be given the same benefit of the doubt as Kavanaugh, and his “perfect” life. Even more painfully, they’ll be doing so over the voices of millions of Americans, citizens who are equally the responsibility of Trump and other Republican leaders — women, people of color, the poor, and their allies — who, for centuries, have had our claims considered beyond reason; doubted, because of who we are.

Top photo: President Donald Trump announces Brett Kavanaugh as his Supreme Court nominee in the East Room of the White House on July 9, 2018.

The post Presumption of Innocence Is for Privileged Men Like Brett Kavanaugh, Not Laquan McDonald or the Central Park Five appeared first on The Intercept.

Corporate Front Groups Lobby to Confirm Brett Kavanaugh. On the Supreme Court, He Could Give Them Vastly Expanded Power.

Nine years ago, Supreme Court Justice Anthony Kennedy authored a 5-4 decision that state-level judges must recuse themselves from cases in which an interested party has exerted “disproportionate influence” over selection of the judge. The case, Caperton v. Massey, involved a coal baron buying a seat on the West Virginia Supreme Court, with $3 million in campaign spending, in order to overrule a lawsuit that his company lost.

That good-government ruling may seem quaint by today’s standards of judicial confirmation lobbying.

Business groups with interests before the U.S. Supreme Court have orchestrated a multifaceted campaign to pressure the Senate to swiftly confirm Judge Brett Kavanaugh.

Business groups with interests before the U.S. Supreme Court have orchestrated a multifaceted campaign to pressure the Senate to swiftly confirm Judge Brett Kavanaugh to the nation’s highest court. The advocacy reaches across the influence economy of Washington, D.C., with the largest corporate lobbying groups and billionaires working in concert with Republican operatives to elevate Kavanaugh to a lifetime posting atop the judiciary.

Few businesses, however, have stamped their names on the effort. Most major corporations and wealthy donors are instead using 501(c) nonprofit groups that do not require donor transparency to air upward of $15 million in reported advertising spending in order to convince the public to support Kavanaugh’s nomination. Other conservative groups contributing to the ad war have not disclosed how much they are spending, likely bringing the total much higher.

Among the groups publicly campaigning for Kavanaugh to be confirmed are the giants of pro-business lobbying — organizations like the U.S. Chamber of Commerce and the Koch brothers-funded Americans for Prosperity. Lesser-known, business-funded political groups, such as the Republican Attorneys General Association, are also spearheading campaigns. Meanwhile, a host of industry groups — funded by many of the same corporate interests that fund the larger lobbying organizations — are eagerly waiting for Kavanaugh to be elevated and rule on cases that will affect their businesses.

Brett Kavanaugh’s Pro-Business Record

While the particular funders of pro-Kavanaugh campaigns are obscured, the goals of the groups behind the effort are far from hidden. The interests backing Kavanaugh are hoping that his confirmation will tilt the court and undercut potentially dozens of government policies on clean elections, environmental regulations, bank regulations, and predatory lending, in addition to weakening organized labor.

Even for a Supreme Court nominee chosen by a Republican president, Kavanaugh has compiled a uniquely pro-business record.

Take, for instance, the famous SeaWorld case: After a trainer was eaten by a killer whale at SeaWorld, Kavanaugh wrote a dissenting opinion at the D.C. Court of Appeals against new safety regulations, calling such measures “paternalistically” motivated. On environmental regulations, he ruled multiple times to overturn Clean Air Act regulations on cross-state pollution and climate change, in both cases arguing that the Environmental Protection Agency acted beyond its statutory bounds.

When it comes to corporations’ ability to affect elections, too, Kavanaugh has reliably sided with business interests. As The Intercept reported, Kavanuagh authored a pivotal decision in 2009 that helped clear the way for the infamous Citizens United ruling, which unleashed unlimited corporate spending in political campaigns the following year.

In addition, Kavanaugh has ruled against consumer rights, against labor organizers, and against class action lawsuits — a record that places him squarely in the Fortune 500’s corner. The Constitutional Accountability Center, after analyzing key rulings on workers rights, corporate regulations, and multinational corporate liability, found that Kavanaugh “has sided with corporate and business interests even when consumers, workers, and regulatory agencies had the text of the law and precedent on their side.” Similarly, the progressive consumer rights group Public Citizen analyzed Kavanaugh’s decisions and found that the judge sided with big business in 76 percent of cases brought before him in the D.C. circuit.

His elevation to the Supreme Court may give Kavanaugh an opening to strike down a whole litany of government regulations in short order. The key test case for the Trump administration appears to be a legal precedent known as the “Chevron deference.” The doctrine emerged from a 1984 ruling that gave federal agencies leeway to reasonably interpret the law when a statute is ambiguous. In 2007, Kennedy joined the four liberals on the Supreme Court for the Massachusetts v. EPA decision, which enshrined the Chevron deference and ruled that the EPA had authority under the Clean Air Act to regulate greenhouse gas emissions.

The decision laid down the legal authority for policies ushered in by President Barack Obama, interpreting 20th century statute to develop new regulations on a range of issues faced by society, including net neutrality, climate change, and workplace safety.

Kennedy’s retirement opens up the possibility that the court could revisit the Chevron deference in a way that sharply limits regulatory power.

Corporations See Dollar Signs on Supreme Court

Corporate lobby groups seized on the opportunity that Kavanaugh’s nomination represents. Business lobby groups have leaned on President Donald Trump not only to repeal as many of the previous administration’s regulations as possible, but to appoint judges who will overturn the Chevron deference standard — a move that could eviscerate a range of government policies that exist today, while also tying the hands of any future Democratic president.

The National Federation of Independent Business, a lobby group currently mobilizing support for Kavanaugh, has said that the Chevron deference is among the organization’s top judicial concerns. Koch Industries’ counsel, Mark Holden, in a column praising Trump’s judicial nominations, approvingly cited Justice Neil Gorsuch’s strident criticism of the Chevron deference. The sprawling Koch network has made efforts to weaken federal regulatory authority the primary focus of its lobbying apparatus.

White House counsel Don McGahn and Federalist Society Vice President Leonard Leo — two of the men most intimately involved in vetting Trump’s judicial appointments — have also reportedly made opposition to the Chevron deference a key factor in evaluating nominees.

Trump’s inauguration saw Kavanaugh explicitly laying out his full-throated opposition to the Chevron deference legal doctrine.

That criteria has not been lost on Kavanaugh. Though he spent the years of the Obama administration routinely ruling against agency authority, Trump’s inauguration saw Kavanaugh open up a new and more forceful line of argumentation as a D.C. circuit judge: He began explicitly laying out his full-throated opposition to the Chevron deference legal doctrine.

“The Chevron doctrine encourages agency aggressiveness on a large scale,” Kavanaugh said in a speech before the Notre Dame Law School on February 3, 2017. “Under the guise of ambiguity, agencies can stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes.” He noted that he witnessed this “all the time” from agencies such as Securities and Exchange Commission, the Environmental Protection Agency, and the Federal Communications Commission.

Just a few months after the speech, Kavanaugh was added to Trump’s list of potential Supreme Court nominees.

It’s no surprise, then, that interest groups around the Beltway have noted that Kavanaugh’s placement on the court could help overturn regulations opposed by business. A contributor to the publication InsideARM, a trade journal for telemarketing companies and debt collectors, noted that recent regulations on robocalls rely on broad, rather than literal, interpretation of existing statute, making the rules vulnerable to legal challenges. If such a challenge comes along while Kavanaugh sits on the court, he would likely restrict or overturn the Chevron deference in ways that could benefit telemarketers and debt collectors.

Likewise with the U.S. Chamber of Commerce, the largest pro-business lobbying federation in the country, which represents firms such as Dow Chemical, Prudential, ExxonMobil, and Goldman Sachs. The group has long challenged environmental and financial regulations on the basis that regulators acted beyond the limits of statutory authority. The powerful lobby announced in August that it would mobilize support for Kavanaugh, claiming he would be a potential “key vote” on the Supreme Court.

The Republican Attorneys General Association, which is currently spearheading a lawsuit to overturn Affordable Care Act regulations, is similarly conducting its own “Confirm Judge Kavanaugh!” campaign. RAGA is funded by Coca-Cola, WalMart, Koch Industries, and other large corporations.

The Koch brothers’ political arm, the group known as Americans for Prosperity, has similarly swung into action. The group is mobilizing door-to-door canvassing, producing television and Facebook advertising, and directly lobbying the Senate to confirm Kavanaugh.

If confirmed, Kavanaugh will immediately have an opportunity to axe regulatory authority.  On Monday, the Supreme Court, with one vacant seat, heard oral arguments on Weyerhaeuser Co. v. United States Fish and Wildlife Service, a suit regarding whether the federal government can designate land as a habitat for endangered species.

In that case, many of the same groups lobbying to confirm Kavanaugh — including the U.S. Chamber of Commerce; the National Federation of Independent Business; and Cause of Action, a legal affiliate of the Koch brothers’ political network —  have filed amicus briefs arguing that federal agencies should be reined in to prevent regulations that businesses view as overly burdensome.

The stakes for corporate lobbying groups to confirm Kavanaugh, and to do so quickly, could not be more clear.

Top photo: A demonstrator holds a ‘confirm Kavanaugh’ button at a rally in support of the Senate confirmation of Judge Brett Kavanaugh in Washington, D.C. on Sept. 27, 2018.

The post Corporate Front Groups Lobby to Confirm Brett Kavanaugh. On the Supreme Court, He Could Give Them Vastly Expanded Power. appeared first on The Intercept.

The Internet Archive Publishes Brett Kavanaugh’s 1983 Yearbook, a Key Document in Nomination Battle

As scrutiny of Supreme Court nominee Brett Kavanaugh’s high school years intensifies amid accusations of sexual assault, much has been written about a series of allusive references to alcohol and girls that Kavanaugh and his classmates made in their 1983 yearbook at Georgetown Preparatory School. Now, the Internet Archive, a nonprofit digital archive, has published the “Cupola” yearbook — only a few pages of which had been made public before.

The yearbook has been pivotal in raising questions about Kavanaugh’s truthfulness when he described his high school years as largely filled with church, studying, and football practice. “I went to an all-boys Catholic high school, a Jesuit high school, where I was focused on academics and athletics, going to church every Sunday at Little Flower, working on my service projects, and friendship,” Kavanaugh told Fox News. Although he later admitted, during dramatic testimony to the Senate Judiciary Committee last week, to some drinking, he insisted he did not drink so much that he would forget what he did or lose control. But the picture that emerges from the yearbook is that of a student who aggressively drank and partied, and was at the center of a social group whose crude inside jokes stand in sharp contrast with the altar boy image Kavanaugh has attempted to portray.

Before today, only some of the yearbook pages — like Kavanaugh’s and that of his close friend Mark Judge — were published by a small number of news organizations, including The Intercept and the New York Times. “By providing access to the 1983 Georgetown Prep yearbook, the Internet Archive is serving its mission as a library, helping people more fully understand the context of Brett Kavanaugh’s nomination to the Supreme Court,” said Mark Graham, the director of the Wayback Machine at the Internet Archive, which provided a statement to The Intercept to explain the decision to publish the yearbook (which is unredacted, but not a complete copy — some pages relating to faculty and lower classes are missing).

Kavanaugh has sought to downplay the yearbook’s relevance to his nomination, denouncing the public’s interest in it as “absurd.” But journalists and politicians have suggested the yearbook paints a more frank picture of Kavanaugh’s high school years than his testimony, or even his calendars, do.

During last week’s hearing, an aide for Sen. Patrick Leahy, D-Vt., held up a printout of the judge’s yearbook page as the senator asked Kavanaugh, “Does this yearbook reflect your focus on academics and your respect for women?” Kavanaugh replied, “If we want to sit here and talk about how a Supreme Court nomination should be based on a high school yearbook page, I think that’s taking us to a new level of absurdity.”

“Have at it, if you want to go through my yearbook,” he later told Sen. Sheldon Whitehouse, D-R.I., who also quizzed him on his yearbook references. “If you are worried about my yearbook, have at it.”

The yearbook has been at the center of what many news articles have pointed out appears to be untruthful testimony by Kavanaugh. The New York Times reported on Kavanaugh’s reference to himself as a “Renate Alumnius” and pointed to several other people who shared a similar reference. Kavanaugh implausibly said during the hearing that the reference meant “she was a great friend of ours.” However, Renate Schroeder, the woman in question, told the Times that the references were “horrible” and “hurtful.”

Much has also been made of references on Kavanaugh and Judge’s pages to “boofing” (which Kavanaugh claimed related to flatulence), “beach week” parties, drinking games, and a challenge Kavanaugh and his friends had set for themselves to drink 100 kegs of beer before the end of the school year. The Intercept found that more than three dozen Georgetown Prep alumni who signed a letter in support of Kavanaugh’s nomination to the Senate Judiciary Committee also listed themselves in the yearbook as partaking in some of Kavanaugh’s “extracurriculars,” like the 100 kegs challenge. While not on Kavanaugh’s senior page, references among some in his circle of friends to a “Ridge Klux Klan” and “Killer Q’s” have also raised questions, many of which remain unanswered.

Top photo: The cover of the 1983 Georgetown Prep yearbook.

The post The Internet Archive Publishes Brett Kavanaugh’s 1983 Yearbook, a Key Document in Nomination Battle appeared first on The Intercept.

With Focus on Keith Ellison Allegations, Karen Monahan Retains New Attorney

Republicans in Washington have attacked Brett Kavanaugh accuser Christine Blasey Ford for hiring an attorney with connections to the Democratic Party, suggesting her allegations are part of a liberal plot to destroy Trump’s Supreme Court nominee.

In Minnesota, meanwhile, Karen Monahan, Keith Ellison’s accuser, has retained the legal services of a longtime friend and former boss of Ellison’s Republican opponent, Doug Wardlow. Ellison and Wardlow are facing off in the race for state attorney general.

Republicans have repeatedly drawn parallels between the cases of Kavanaugh, who is accused of attempting to rape Blasey Ford, and Ellison, who is accused of attempting to drag Monahan off a bed by her feet in 2016, as well as what Monahan has called “narcissist abuse.”

Blasey Ford is being represented by an attorney, Debra Katz, who has Democratic Party affiliations, though she is also a well-known legal advocate for sexual harassment and abuse victims. Republicans pounced on plans by Katz and attorney Lisa Banks, who is also representing Blasey Ford, to host a fundraiser for Sen. Tammy Baldwin, who is up for re-election in Wisconsin. The fundraiser was canceled.

Monahan’s attorney, Andrew Parker, said his new client contacted him for representation a few days ago, not the other way around. In a phone call with The Intercept, he said that their association had nothing to do with his close relationship to Ellison’s opponent. “As I understand, she learned of me from her son, who worked for someone I know, and that’s how she ended up calling me,” Parker said. “She didn’t have representation before and was being inundated. I have dealt with the media and done other high-profile cases, and I also have an understanding of politics.”

DETROIT, MI - DECEMBER 22:  U.S. Rep. Keith Ellison (D-MN) holds a town hall meeting at the Church of the New Covenant-Baptist on December 22, 2016 in Detroit, Michigan. Ellison, a candidate to lead the Democratic National Committee, spoke at the church where his brother Brian is a pastor.  (Photo by Sarah Rice/Getty Images)

Keith Ellison holds a town hall meeting at the Church of the New Covenant-Baptist in Detroit, Mich., on Dec. 22, 2016.

Photo: Sarah Rice/Getty Images

Monahan has alleged that there is a video of the incident between her and Ellison, and her son has claimed that he has seen it. Ellison has insisted that no such video exists and has denied any such physical encounter.

Parker said that Monahan did not know of his long-standing relationship with Ellison’s opponent. “I can tell you for sure she did not — she didn’t know I had any relationship with Doug Wardlow nor did she have any contact with Wardlow, or the Wardlow campaign,” he said.

When asked if she was paying for his legal services, Parker said, “I don’t want to get into it, I don’t believe it’s a relevant question.”

Parker and Wardlow’s close relationship goes far back. Wardlow, who is 40, spent nearly half his legal career working at Parker’s previous law firm, Parker Rosen LLC.

Parker is also a conservative political commentator who has previously expressed strong support for Wardlow’s candidacy. Parker hosts a right-wing radio show and podcast on a Minnesota AM talk radio station. He advertises a link to his podcast on the front page of his law firm’s website.

Parker’s show included discussion of the allegations against Ellison as recently as September 30, in which he compared Monahan’s claims to those made against Kavanaugh. 

In December 2017, Parker invited Wardlow on his show to talk about his attorney general candidacy. At that point in the race, it was all but certain that Wardlow would be the Republican nominee. On the show, Parker called Wardlow “a good friend of mine” and “an outstanding lawyer, one of the most creative lawyers that I have ever worked with.” 

Parker and Wardlow discussed the importance of Republicans seizing the attorney general’s seat in November, an office that has been controlled by Democrats for the last 47 years.

“You make sure when you get to the ballot box in November that you take close watch of the attorney general race, and cast your vote on the Republican side of the ticket,” Parker told his audience.

Wardlow and Parker discussed the importance of electing a Republican attorney general to help bolster the policy priorities of what they hope would also be a Republican governor. (Minnesota Democratic Gov. Mark Dayton is terming out of office, and in November, Republican candidate Jeff Johnson is facing off against Tim Walz, a Democrat.)

“There’s no question that the attorney general position is one that is to protect and defend the laws as written, but in addition, it is an arm to support policy, and with a Republican governor, I think it is important that we have an attorney general that can support the governor’s policies,” said Parker.

On Tuesday, in a Star-Tribune story about whether Wardlow would be able to set aside his partisan past if elected attorney general, Parker was quoted describing Wardlow as a prolific writer with an “outstanding analytical ability.” He added that he was confident Wardlow could keep his politics out of the attorney general’s office.

When asked if he had done any campaigning for Wardlow, Parker told The Intercept no. “To date, I have not. I may in the future, knowing a lot more about Keith Ellison than I did before,” he said, referring to new information provided by Monahan.

Monahan, Ellison’s former partner, had spent much of the last year hinting on social media of abuse by Ellison, and the existence of those potential allegations was well-known in Minnesota political circles. But Monahan’s allegations exploded into the national media in early August, when her son detailed his mother’s experience in a lengthy Facebook post. The son alleged he had discovered a video on his mother’s computer of Ellison’s physical abuse, specifically dragging her off a bed, and said he was bringing the allegations forward despite his mother’s reluctance to do so. (Monahan has since clarified that Ellison attempted to drag her off the bed, knocked off her shoe in the process, but did not ultimately drag her off.) Monahan and her son also made allegations that Ellison had engaged in emotional abuse, frequently terming it “narcissist abuse.”

It’s the alleged video that has become the lynchpin of the subsequent political debate. Monahan, who referenced the video in tweets prior to her son’s allegations, has thus far refused to share it publicly or with media outlets hoping to corroborate the story, sometimes citing changing reasons.

On Monday, the Democratic-Farmer-Labor Party released what it called an independent investigation into Monahan’s allegations, led by an attorney from a local Democratic-leaning law firm, Lockridge Grindal Nauen. Employees and owners of the firm have donated nearly $50,000 to Keith Ellison’s campaigns since 2006, according to the Center for Responsive Politics. Their investigation, which was conducted over the past several weeks, concluded that Monahan’s claims of physical abuse could not be substantiated because she refused to share the video footage. (Parker told The Intercept that while he disputes their conclusions, the investigation was conducted by “a very good law firm” and he would “never impugn them.” He added that he knows the investigating attorney, Susan Ellingstad, personally and likes her.)

On Tuesday, the DFL announced it would turn over its investigation to local authorities for further probing. Last week Ellison also asked the House Ethics Committee to investigate the allegation. “I am innocent and eager to see this entire matter resolved,” he said.

Doug Wardlow’s campaign immediately blasted the DFL’s investigation, calling it a “sham.” In a statement, Wardlow said:

Karen Monahan’s allegations are substantiated by documentary evidence and a witness. Ms. Monahan’s son Austin, has seen video evidence of Ellison’s physical abuse of Monahan, and he has also witnessed the traumatic effects that the abuse had on his mother. Ms. Monahan also released medical records that detail what she told her doctors about Keith Ellison’s abusive behavior.

It was in response to the investigation that the public learned Monahan had retained the legal services of Parker. In tweeting her reactions to the report, she referred media requests to him.

Parker told The Intercept that he has not seen the alleged video and does not know if anyone ever will.

“I don’t know if there would be such a circumstance where she would share it,” he said. “She is very uncomfortable with releasing it, she doesn’t think it’s a good idea to release it, in order to shift the national dialogue on the subject. You should not need the video.”

Parker said there was no difference between releasing a video publicly and showing it privately to a reporter or an investigator. “If you are a victim and you show it to anyone, that is a revictimization,” he said. “People who haven’t suffered this and who don’t know what is on the video may well think, Oh, what’s the big deal showing it to one other person? But I suggest to them, how dare they put themselves in her position in that regard.”

Top photo: Karen Monahan at home in St. Louis Park, Minn., on Aug. 24, 2018.

The post With Focus on Keith Ellison Allegations, Karen Monahan Retains New Attorney appeared first on The Intercept.

Zero Tolerance Pushed Asylum-Seekers to Cross the Border Illegally, DHS Report Confirms

Appearing before a group of concerned faith leaders in mid-June, Attorney General Jeff Sessions offered words of reassurance. For weeks, the national media had focused its attention on Sessions’s “zero tolerance” initiative, a border enforcement strategy, which by that point had separated thousands of migrant children — including babies and toddlers — from their parents. “Please note, church friends, that if the adults go to one of our many ports of entry to claim asylum, they are not prosecuted and the family stays intact pending the legal process,” Sessions said.

Four days later, Department of Homeland Security Secretary Kirstjen Nielsen, offered more of the same at a White House press conference: “DHS is not separating families legitimately seeking asylum at ports of entry. If an adult enters at a port of entry and claims asylum, they will not face prosecution for illegal entry. They have not committed a crime by coming to the port of entry.”

Immigration attorneys and journalists on the border responded forcefully, arguing that the nation’s ports had become increasingly locked down with Donald Trump’s election, and that the problem had worsened with the onset of “zero tolerance.” Now, nearly four months later, a report from Nielsen’s own department indicates the advocates and reporters were right, and that the secretary and the attorney general were lying.

According to the Office of the Inspector General at DHS, “While the Zero Tolerance Policy was in effect, government officials — including the DHS Secretary and the Attorney General — publicly encouraged asylum seeking adults to enter the United States legally through a port of entry to avoid prosecution and separation from their accompanying children. However, at the same time, [Customs and Border Protection] was regulating the flow of asylum-seekers at ports of entry through ‘metering,’ a practice CBP has utilized at least as far back as 2016 to regulate the flow of individuals at ports of entry.”

“Although DHS asserts that the Zero Tolerance Policy and metering at ports of entry are distinct issues, a CBP official reported that the backlogs created by these competing directives likely resulted in additional illegal border crossings,” the report, published Tuesday, went on to say. It added that “OIG saw evidence that limiting the volume of asylum-seekers entering at ports of entry leads some aliens who would otherwise seek legal entry into the United States to cross the border illegally. According to one Border Patrol supervisor, the Border Patrol sees an increase in illegal entries when aliens are metered at ports of entry.”

SAN YSIDRO, CA - MAY 7:  Attorney General Jeff Sessions addresses the media during a press conference at Border Field State Park  on May 7, 2018 in San Ysidro, CA.  Sessions was on a visit to the border along with ICE Deputy Director Thomas D. Homan to discuss the immigration enforcement actions of the Trump Administration. (Photo by Sandy Huffaker/Getty Images)

Attorney General Jeff Sessions addresses the media during a press conference at Border Field State Park in San Ysidro, Calif., on May 7, 2018.

Photo: Sandy Huffaker/Getty Images

In other words, while insisting that there would be no consequences for asylum-seekers who tried to enter the U.S. the “right” way, the administration was closing off that possibility and forcing people to cross illegally. One woman told the inspectors that she had been turned away three times “before deciding to take her chances on illegal entry.”

Eleanor Acer, of Human Rights First, said in an emailed statement that the OIG report “confirms that government officials launched an orchestrated policy of blocking asylum-seekers at official border points, despite the fact that U.S. laws allow them to seek protection.”

The practice of metering occurs when CBP officers working the ports take up positions on the pedestrian footbridges linking the U.S. and Mexico, stop prospective asylum-seekers mid-bridge, and radio back to the stateside processing center before allowing them to proceed. Ostensibly, metering is intended to prevent overcrowding, but following Trump’s election, advocates on the border reported a pattern of activity that suggested it was being used as a deterrent strategy.

Four days before Trump’s inauguration, the Washington Post published a detailed story reporting that “hundreds or perhaps thousands of foreigners” had been prevented “from reaching U.S. asylum officials along the border” in the preceding months. Those claims were repeated with greater detail, and in greater numbers, in news and human rights groups’ reports in the months that followed — and things appeared to get worse under “zero tolerance”. Asylum-seekers across the southern U.S. border said that they had been told by U.S. and Mexican border officials that there was no room, or were given incorrect or misleading information about who was eligible for asylum. The situation led to large lines and encampments at international footbridges and in the streets of some of Mexico’s most dangerous cities.

Melissa Crow, senior supervising attorney with Southern Poverty Law Center’s Immigrant Justice Project, said that “there has been an uptick in pushbacks since about April or May 2018, which was when zero tolerance took effect.”

Systematically turning away asylum-seekers at the border not only places those individuals at significant risk — at least 8,000 migrants have died attempting to cross the U.S.-Mexico border over the last decade and a half — it is also a violation of international law (one that manages to put money in the pockets of the same smuggling organizations that U.S. law enforcement routinely paints as a grave national security threat.) The legal services provider Al Otro Lado, which works in Tijuana, sued last year, accusing CBP of illegal turnbacks. In late August, a federal judge in California allowed the suit to move forward as a class action on behalf of asylum-seekers who say they were wrongfully refused entry.

Metering was one part of a broader set of problems created by the “zero tolerance” regime observed by the OIG team. Under “zero tolerance,” anyone apprehended between ports was to be charged with a crime for illegal entry, regardless of whether they had previously attempted to make an asylum claim legally or if they were traveling with a child. As immigration enforcement heads spelled out in a policy memo in April, family separation was the predictable consequence of this: Because children could not be held in criminal custody, when the parents were referred for prosecution, they’d be taken away. By requiring the criminal prosecution of mothers and fathers, the architects of “zero tolerance” created a scenario in which children who crossed the border with their parents were turned unaccompanied by the state.

MATAMOROS, MX - JUNE 28: A 14-year-old boy from Honduras sleeps on the Mexican side of the Brownsville & Matamoros International Bridge, where he and his family have been waiting for days after being denied entry into the U.S., on June 28, 2018 near Brownsville, Texas. Despite the Trump administration ending the zero-tolerance policy toward immigration, attention remains focused on the U.S.-Mexico border where migrants from Central America continue to arrive on a daily basis. (Photo by Tamir Kalifa/Getty Images)

A 14-year-old boy from Honduras sleeps on the Mexican side of the Brownsville Matamoros International Bridge where he and his family had been waiting for days after being denied entry into the U.S., in Brownsville, Texas, on June 28, 2018.

Photo: Tamir Kalifa/Getty Images

Unaccompanied migrant children — historically, mostly kids who crossed the border alone — have traditionally been turned over to the Office of Refugee Resettlement, within the Department of Health and Human Services. Law and policy had long required that CBP not hold children for more than 72 hours. CBP’s facilities are not equipped for long-term detention, and for years they have been at the center of reports of violence and abuse against migrant children. But under the new orders, the OIG found the prohibition against detention of children with CBP for more than 72 hours was routinely violated. In the Rio Grande Valley of Texas, the epicenter of the family separation crisis, where hundreds of kids were kept in a cage-filled warehouse known as the “dog kennel,” at least 564 children — “44 percent of children detained during this time” — were detained for more than 72 hours. “This sector also held a child for 25 days, nearly three times longer than any other Southwest Border Patrol sector,” the OIG report found.

The report also singled out the ways in which CBP was unprepared to keep track of suddenly solo children who had been taken from their parents — despite the fact that high-level officials had acknowledged that this would be the impact of “zero tolerance.” Various government agencies’ systems weren’t coordinated, information had to be entered manually and emailed around, and despite a public statement from DHS in June that there was a “central database” of the families who’d been separated, the OIG found no evidence that such a thing existed. The Border Patrol also had no systematic way of making sure that preverbal children could be identified, such as wrist bracelets or photographs, the report said.

The OIG report takes no position on the wisdom or efficacy of “zero tolerance.” But the report at various points exposes a deep indifference among authorities toward the migrant families on whom this policy would have such a drastic impact. It describes Border Patrol officers complaining to inspectors about having to watch children, when they’d rather have been out “patrolling and securing the border.” (Despite vocal enthusiasm from Border Patrol for ending so-called catch-and-release practices, in which migrants weren’t prosecuted automatically.) And in McAllen, Texas, bureaucratic laziness led to families being unnecessarily separated. If a migrant prosecuted under “zero tolerance” was speedily sentenced to time served, CBP officers in McAllen said that they could cancel the children’s transfer to HHS and reunite the families. But this was overruled, according to a senior official, “to avoid doing the additional paperwork required.”

Top photo: Border Patrol agents apprehend migrants shortly after they crossed the border from Mexico into the United States in the Rio Grande Valley Sector near McAllen, Texas, on March 26, 2018.

The post Zero Tolerance Pushed Asylum-Seekers to Cross the Border Illegally, DHS Report Confirms appeared first on The Intercept.

Prosecutors Don’t Bring Cases the Way Rachel Mitchell’s Kavanaugh Memo Says — Not Even in Her Own Arizona Office

From the moment Arizona sex crimes prosecutor Rachel Mitchell was chosen by Republicans to question Christine Blasey Ford before the Senate Judiciary Committee, colleagues were quick to describe her as fair and trustworthy — an attorney who shuns controversy. “Rachel doesn’t seek attention as a lawyer,” her former supervisor Cindi Nannetti told the Arizona Republic. “She has excellent judgment. She demands thorough investigation by police officers. Her bottom line is justice.”

That may be an apt description of Mitchell’s objectives and track record in Arizona. But whatever her rationale for accepting her role in the saga of Brett Kavanaugh’s nomination to the Supreme Court, it has not been about justice for victims. Mitchell’s one-sided questioning of Ford last week may have been no fault of her own — the Republican senators suddenly removed Mitchell partway through Kavanaugh’s testimony, suggesting that she was not working out as well as they had hoped.

“I think this was the wrong assignment at the wrong time for her,” her old boss, former Maricopa County Attorney Rick Romley, told the Phoenix New Times last week after the hearing.

The real value in bringing Mitchell to the hearing — apart from avoiding the “bad optics” of a bunch of old, white men grilling Ford — became clear this week, when she released her “independent assessment” of Ford’s allegations of sexual assault by Kavanaugh in the early 1980s.

Mitchell’s nine-page memorandum cast Ford’s case as unusually weak. “A ‘he said, she said’ case is incredibly difficult to prove,” Mitchell wrote, invoking her 25 years of experience working on sex crimes prosecutions. “But this case is even weaker than that.” Mitchell concluded, “I do not think that a reasonable prosecutor would bring this case based on the evidence before the Committee.”

The memo sent the message the committee’s Republicans had presumably wanted and delivered it with the legitimacy of a career prosecutor’s assessment. But, beneath the surface, Mitchell’s memo on the Ford-Kavanaugh case obscures how prosecutors — in Maricopa County, Arizona, and elsewhere — actually decide when and how to pursue criminal cases.

As an analysis of the memo published by The Intercept shows, Mitchell’s findings are slanted at best. There was no weighing of the credibility of the accuser versus the accused. And Mitchell went so far as to repeat many of Kavanaugh’s talking points throughout the hearing, including some that are highly misleading. For instance, Mitchell wrote that Ford “struggled to identify Judge Kavanaugh as the assailant by name.” But anyone who was watching the hearing saw that Ford never wavered about the identity of the boy who assaulted her. The fact that she did not name him to her therapist or husband does not mean she did not recall who he was.

At least one case currently pending in Maricopa County suggests that old or incomplete evidence isn’t always a deterrent for Mitchell. Former prosecutor Matthew Long is representing a man in a 30-year-old case only now being pursued by Mitchell’s office. “That was investigated back in the late ’80s, early ’90s, and it was determined there’s not enough evidence to go forward,” Long told The Intercept. “Well, they came back 30 years later. No new evidence, and [they] said, ‘Yeah, we think we should prosecute now.’”

“It didn’t seem to be at all consistent with what was laid bare there in the actual hearing. Nor was it consistent with the training that Mitchell herself provides and relies on in handling her own cases.”

Mitchell’s memo proved particularly offensive to Long, who has been outspoken since it was released on Sunday. Mitchell supervised Long for about two years between 2005 and 2007, when he worked as a sex crimes prosecutor in Maricopa County. (He went on to head up sex crimes prosecution in a neighboring county before turning to defense work.) “When I first saw her involvement in this, I was at peace,” he said. In his experience, Mitchell was someone he relied upon to seek truth “through a fact-based, evidence-based approach.” Mitchell’s questions at the hearing reflected this, he said, although “she clearly was there in order to cross-examine Dr. Ford.” But when she released her memo, Long was deeply disturbed: “It didn’t seem to be at all consistent with what was laid bare there in the actual hearing. Nor was it consistent with the training that Mitchell herself provides and relies on in handling her own cases.”

Mitchell’s office had already raised controversy for the partisan posturing of her boss, Maricopa County Attorney Bill Montgomery, who, from his personal Twitter account, retweeted a statement by Sen. Lindsey Graham, R-S.C., calling Kavanaugh’s treatment “despicable.” In a subsequent tweet, Montgomery compared the Democrats on the Judiciary Committee to a “pack of hyenas,” adding the hashtag #ConfirmKavahaugh. To Long, the memo highlights the way in which the Kavanaugh hearings boil down to “politics and emotion. Apparently even Ms. Mitchell is not immune to that.”

Partisanship aside, prosecutors in Maricopa County aren’t exactly known for their restraint when it comes to pursuing convictions. Quite the opposite. The office has gained notoriety for zealousness — overreach, overcharging, and blatant misconduct. The examples are many, though the best known and highest profile may be that involving former elected County Attorney Andrew Thomas, who was accused of pursuing politically motivated and meritless prosecutions of his perceived enemies. In 2012, Thomas and one of his deputies were actually disbarred because of this conduct, while a third lawyer had her license suspended. In a scathing 247-page ruling, the state supreme court’s disciplinary judge wrote that Thomas and his colleagues had “prosecuted innocent people, without evidence, and did not blink.”

(Thomas, for his part, penned a 2001 biography of U.S. Supreme Court Justice Clarence Thomas, which, according to reviews, included counterarguments to the sexual harassment allegations brought against the judge during his 1991 confirmation to the court.)

Long, the former Maricopa prosecutor, said it was fair to characterize the county attorney’s office as overzealous — though he noted that the office is hardly an isolated example of such an approach. “It’s a function of the politics,” he said, “and that’s really the problem of all prosecutor offices throughout this country.”

In this Oct. 27, 2004 photo Rachel Mitchell makes an opening statement in the trial of priest Karl LeClaire at court in Mesa, Ariz.  Senate Republicans are bringing Mitchell to handle questioning about allegations of sexual assault against Supreme Court nominee Brett Kavanaugh at Thursday, Sept. 27, 2018  Senate Judiciary Committee hearing.  (Jack Kurtz /The Arizona Republic via AP, Pool)

Rachel Mitchell makes an opening statement in the trial of priest Karl LeClaire at court in Mesa, Ariz., on Oct. 27, 2004.

Photo: Jack Kurtz/The Arizona Republic via AP

Mitchell’s insistence that prosecutors would not proceed with a case based on Ford’s allegations rings especially hollow considering a case handled by Thomas beginning in 2004, which seemed to take the opposite approach — to proceed despite countervailing evidence.

In that case, which sparked protests at the Arizona State Capitol, Courtney Bisbee, then 33, was accused of sexually molesting a 13-year-old boy while working as a school nurse in Phoenix. Convicted following a bench trial in 2006, Bisbee was sent to prison for 11 years. Yet the case against her began to unravel soon after her conviction. In 2007, the alleged victim’s brother recanted his testimony in a sworn deposition, saying that the allegation against Bisbee was concocted by his mother, who hoped to win money in a lawsuit. The father of the boys provided an additional affidavit saying that he told both detectives and the Maricopa County Attorney’s Office as early as the fall of 2004 that the story had been “coerced” by the mother of Bisbee’s accuser. Yet prosecutors withheld this crucial exculpatory evidence.

In a 2008 investigation, the Phoenix New Times revealed that Maricopa County prosecutors were “well aware of the new evidence in the Bisbee case.” Among those who repeatedly contacted the office was a private investigator who spoke to Rachel Mitchell. As she recalled it, the private investigator told Mitchell, “We have a young lady sitting in prison that doesn’t need to be there.” In response, the New Times reported, Mitchell gave her “the runaround.” Bisbee was released from prison in 2016 at the end of her sentence, but the state of Arizona has fought her attempts to clear her name.

The scant evidence against Bisbee and Mitchell’s apparent lack of discomfort with the idea that her office might have sent an innocent woman to prison stands in stark contrast to the case she makes in her memo, questioning Ford’s credibility and claiming that a case based on her allegations alone is one that no “reasonable prosecutor” would take on.

“No one else was invited to testify under oath to offer potential corroboration.”

In Ford’s case, the factors that Mitchell points to as being dispositive — like the lack of corroboration — are not uncommon in sex crimes cases and unsurprising in the Kavanaugh case. For instance, there is a simple explanation for the absence of a witness backing up Ford’s account: “No one else was invited to testify under oath to offer potential corroboration,” Daniel Medwed, a professor at Northeastern University’s law school, whose research includes a focus on prosecutors, wrote in an email to The Intercept.

Medwed noted that Mitchell’s assessment cuts against her credentials as an experienced sex crimes prosecutor. “There is no corroboration requirement generally for crimes, and this language by Mitchell reminds me of outdated rules that did apply things like corroboration and resistance requirements” for rape cases. “Strange and disturbing, especially for a sex crimes prosecutor who should presumably have a better handle on the realities of these cases.”

Phoenix prosecutor Rachel Mitchell, points to a map as she questions to Christine Blasey Ford at the Senate Judiciary Committee hearing, Thursday, Sept. 27, 2018 on Capitol Hill in Washington. Senators from left, Sen. Mike Crapo, R-Idaho, Sen. Jeff Flake, R-Ariz., Sen. Ben Sasse, R-Neb., Sen. Ted Cruz, R-Texas, Sen. Mike Lee, R-Utah. (Tom Williams/Pool Image via AP)

Prosecutor Rachel Mitchell points to a map as she questions to Christine Blasey Ford at the Senate Judiciary Committee hearing on Sept. 27, 2018.

Photo: Tom Williams, Pool/AP

Mitchell’s list of deficiencies in Ford’s allegations bothered Long, the former prosecutor. Put simply, he said, Mitchell knows better. In the memo, he said, she betrayed her training and the standards he knew her to have when vetting cases.

One thing that particularly disturbed him was Mitchell’s focus on Ford’s inability to narrow down a date for when the alleged assault occurred. That, he said, “is absurd. It is offensive. It is laughable, because she knows better.”

It is not at all uncommon for prosecutors to leave at least some wiggle room around the date that a crime is believed to have happened — using the phrase “on or about” is nearly ubiquitous where filing criminal charges is concerned. And in Maricopa County, Long says that Mitchell’s office “routinely” files charges with an expanded, even multi-year, window during which a crime is alleged to have taken place. “In the criminal justice system, date is not an element” of the crime, he said. “It’s not … something that we have to prove. She knows this.” And Mitchell trains prosecutors to understand this, he said: “In fact, we expect the date is going to be the one thing a person is not going to remember.” Mitchell’s decision to suggest otherwise in the letter “appears to be merely designed to mislead the public,” he said. “Not something I can abide.”

“It’s misleading because that is not the only option that a prosecutor agency has: They have an option to file charges, to turn charges down, or to ask for a further investigation.”

Long took exception to Mitchell’s suggestion that this case is not one that could be prosecuted, if it were to come to that. He notes that she is “absolutely correct” in saying that, in its current form, the case is not one that she would file — which might be true, but doesn’t tell the whole story. “It’s misleading because that is not the only option that a prosecutor agency has: They have an option to file charges, to turn charges down, or to ask for a further investigation,” Long said. Mitchell should have pointed to that latter option in her memo, declaring that further inquiry was needed. In sex crimes, he said, that happens in “the majority of cases.”

The FBI is doing that now, but it is unclear to what end. News outlets have reported accounts of individuals with information about Kavanaugh’s conduct trying to contact the FBI, but failing to get responses. Meanwhile, a second accuser, Deborah Ramirez, reportedly gave FBI agents a list of nearly two dozen people who could corroborate her allegation that Kavanaugh exposed himself to her while in college. “We need to start by listening and demonstrating that we can prove what they say by independent objective evidence,” said Long. “But the reality is nobody knows even what to look for.”

Long said that the question the Senate Judiciary Committee should be asking is, “What could we do to ensure that we get this right? The fact that they didn’t ask that question and that Rachel Mitchell didn’t offer that demonstrates that nobody is concerned with getting it right, they’re concerned with being right; that is, getting the [Supreme Court] seat.”

Long said he views both Republican and Democratic senators as failures on this point. (Long decried the Democrats’ use of a polygraph, a notoriously unreliable form of evidence that is typically inadmissible in criminal proceedings.)

“They would all rather have the argument rather than the facts, because what it comes down to is nobody gives a fuck about this victim,” he said. “Victims are being stood on, on their throats, as each side plays … ‘victimhood’ as a pawn in this goddamn war, this cultural war.”

Top photo: Rachel Mitchell at a Senate Judiciary Committee hearing in Washington, D.C., on Sept. 27, 2018.

The post Prosecutors Don’t Bring Cases the Way Rachel Mitchell’s Kavanaugh Memo Says — Not Even in Her Own Arizona Office appeared first on The Intercept.

Is Brett Kavanaugh’s High School Ditching Him? Nearly 100 Alumni Sign Petition Against the Supreme Court Nominee.

A petition that was started just a few days ago by two alumni of Brett Kavanaugh’s high school to encourage other graduates to come forward with information about any sexual assaults he committed there has picked up 96 signatures, the petition organizers announced late Tuesday night. The petition, which states that “our silence will serve no one,” describes its signers from the all-boys Georgetown Preparatory School as “standing in support of Dr. Christine Blasey Ford and in solidarity with women everywhere who have endured sexual assault, violence, and harassment.”

“We are alumni of Georgetown Prep standing in support of Dr. Christine Blasey Ford and in solidarity with women everywhere who have endured sexual assault, violence, and harassment.”

Two members of Georgetown Prep’s class of 1986, Fikri Yucel and Bill Barbot, launched the petition on Saturday. Neither Yucel nor Barbot knew Kavanaugh back then — they were several years behind his class of 1983 — but after watching the dramatic Senate testimony of both Ford and the Supreme Court nominee last week, they came to believe that Ford was telling the truth. “We believe her,” their petition states. It adds, “Whether it is knowledge of specific events in these allegations, or just background to those events, please do not remain silent, even if speaking out comes at some personal cost.”

The petition, which is posted on Medium, now has 51 named signers, 18 signers who confirmed their support and identities but “have asked to have their names withheld for professional or personal reasons,” according to the petition. An additional 27 Prep alumni submitted their names but are not yet sure whether they want to have their signatures go public. That makes a total of 96, which in just a few days has reached more than half the number of alumni who signed  a widely-circulated letter of support for Kavanaugh on July 9, when his nomination was unveiled.

The rapid emergence of the anti-Kavanaugh Georgetown Prep petition comes as a variety of voices and institutions that had supported the conservative jurist have withdrawn their support in the wake of several sexual assault allegations against him — particularly the one from Ford, who says Kavanaugh drunkenly groped her and tried to tear off her clothes as he put his hand over her mouth to stifle her screams, and another accusation from Deborah Ramirez, who says that in the 1983-1984 academic year at Yale University an inebriated Kavanaugh exposed himself and forced her to touch his penis against her will as she was trying to move away.

The American Bar Association withdrew its support for Kavanaugh, as has Yale Law School, which is Kavanaugh’s legal alma mater and had quickly and enthusiastically embraced him when his nomination was announced. Additionally, three female law clerks for Kavanaugh who previously supported him have pulled back, saying they are “deeply troubled” by the allegations against him. And a prominent conservative legal writer, Benjamin Wittes, published an article Tuesday with the devastating headline, “I Know Brett Kavanaugh, but I Wouldn’t Confirm Him.”

Top photo: The campus of Georgetown Prep, where Judge Brett Kavanaugh went to high school, in Bethesda, Md., on Sept. 17, 2018.

The post Is Brett Kavanaugh’s High School Ditching Him? Nearly 100 Alumni Sign Petition Against the Supreme Court Nominee. appeared first on The Intercept.

Three Reasons Not to Place Your Faith in the FBI’s Kavanaugh Investigation

As the FBI explores whether Supreme Court nominee Brett Kavanaugh sexually assaulted women while in high school and college, elected officials and others have suggested that federal agents can authoritatively get to the bottom of an alleged attack said to have occurred three decades ago.

The FBI’s only impediment, these people allege, is possible meddling by the White House to limit the investigation’s scope. Arizona Sen. Jeff Flake, a Republican whose last-minute show of leverage forced the new FBI inquiry, has told the White House and the FBI that he expects “a fulsome” investigation. Newspaper editorial boards have warned that the Trump administration’s interference in the investigation would taint the FBI’s findings.

FBI agents are experts at interviewing people and quickly dispatching leads to their colleagues around the world to follow with additional interviews,” former FBI Director James Comey assured Americans in a New York Times op-ed. “Unless limited in some way by the Trump administration, they can speak to scores of people in a few days, if necessary.”

But these arguments leave out the inherent limitations of FBI investigations in cases such as this.

How Much Can We Expect From This Week’s FBI Investigation?

The FBI agents probing whether Kavanaugh sexually assaulted Christine Blasey Ford when they were both in high school lack something that most serious government investigations require: subpoena power.

Unlike agents tasked with investigating a crime, the FBI must rely on witnesses to cooperate voluntarily with its investigation. A possible witness approached by the FBI may simply slam the door in agents’ faces with no repercussions. At any time, witnesses who choose to cooperate can refuse to answer a specific question, and they won’t have to provide any explanation for their refusal.

Take, for example, Mark Judge, who Ford said was present when Kavanaugh allegedly assaulted her. Judge has reportedly cooperated with the FBI investigation, but it is impossible to determine what exactly that means without knowing more about what he’s told them. Judge’s sitting down with the FBI, confirming his name and date of birth, and then refusing to answer any other questions could technically constitute cooperation. While lying to the FBI is a felony, refusing to answer FBI agents’ questions carries no penalty.

The only way to compel someone to speak as part of this inquiry would be for the Senate to subpoena witnesses. The Republican majority appears unwilling to exercise that power.

Why Didn’t Kavanaugh’s Previous FBI Background Investigations Turn Up the Allegations?

During his Senate testimony last week, Kavanaugh pointed to “six separate FBI background investigations over 26 years” to suggest that the allegations against him are questionable and possibly politically motivated. If these claims were real, Kavanaugh seemed to be asking, why didn’t the FBI turn them up over the last two and a half decades?

It’s true that Kavanaugh would have been subjected to background investigations, given his career of government work in the Office of Independent Counsel during the Clinton administration, in the White House during the George W. Bush administration, and as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. His initial background checks, including for when he served as Bush’s staff secretary, would have been done so that he could obtain security clearances. FBI background checks for judicial nominees are similar to those conducted for security clearances, but judicial background checks focus more on professional conduct and relationships, rather than a nominee’s personal life. As a result, Kavanaugh’s judicial background checks would have been even less likely to unearth allegations about him as a high school and college student than the ones he underwent as an executive branch employee.

The FBI leaves many stones unturned when conducting these checks. U.S. government employees and contractors seeking security clearances must fill out forms that include all the addresses where they’ve lived, previous employers, and financial information. FBI agents then use this information to verify the subjects’ life stories and locate possible red flags. When conducting interviews, they typically rely on people who live near or worked with the subject, and the people they contact are under no legal obligation to talk to them.

About a year ago, for example, an FBI agent knocked on my door. She said she wanted to ask me some questions about a neighbor. I knew the neighbor was an engineer for a well-known defense contractor, but until that moment, I didn’t know he worked on sensitive projects. The FBI agent said she was visiting me as part of a routine background check necessary to renew his security clearances.

I didn’t have to talk to her, but I saw no harm in it.

She asked me if the neighbor, to my knowledge, had any financial problems or exhibited behavior that otherwise concerned me.

“No,” I answered.

“Do you know him to associate with any terrorists or subversive elements?” she asked.

I laughed. “No, definitely not,” I said.

She thanked me and walked to one of the other houses in the neighborhood, no doubt planning to pose the same questions to someone else.

It’s easy to see how such questioning would have failed to surface details about Kavanaugh’s high school and college encounters with women, his drinking, and other elements of his past behavior raised by his and Blasey Ford’s Senate testimony.

Basically, unless one of your former neighbors volunteers that you associate with “subversive elements,” or your family has millions of dollars in financial ties to foreign governments — as President Donald Trump’s son-in-law and adviser Jared Kushner does — the FBI doesn’t dig too deep. Background inquiries aren’t criminal investigations, after all.

What’s Our Best Chance of Learning What Kavanaugh Was Up to in His Teens and College Years?

Despite Trump’s frequent dismissals of critical press reports as “fake news,” the media has been key to unearthing facts about Kavanaugh’s personal history. The Intercept in September first disclosed that Sen. Dianne Feinstein was in possession of Blasey Ford’s letter. More recently, the New York Times discovered something previous background checks on Kavanaugh apparently hadn’t: that he had been questioned by police about a bar fight in 1985.

Perhaps this one-week FBI investigation will substantiate or undermine the charges that Kavanaugh sexually assaulted women. But it’s more likely that the news media, chasing a story that has captured the world’s attention, will be the ones doing the most “fulsome” inquiries here.

Top photo: The FBI seal, displayed outside FBI headquarters in Washington, D.C., on Feb. 2, 2018.

The post Three Reasons Not to Place Your Faith in the FBI’s Kavanaugh Investigation appeared first on The Intercept.

El Salvador is Trying to Stop Gang Violence. But the Trump Administration Keeps Pushing Failed “Iron Fist” Policing.

Oswaldo joined the Salvadoran gang Barrio 18 when he was 14 years old. By the time he was in his early 20s, he wanted out — and luckily, gang leaders gave him permission to leave. But they warned him: “No one will offer you a hand out there like the gang has.”

For a long while, that was true. For Oswaldo, his gang clique was his adopted family. They had his back, and they found food and shelter for him and his family. Without the clique, vulnerable and alone, he barely scraped by while selling toothbrushes at a market. Oswaldo had finished high school, and he hoped to find a steady job. But when he was invited in for an interview, he remembers, “the first question was, ‘Are you a gang member?'” Then, it was: Are you tattooed? Do you have family in a gang? Friends? Are you from a gang-controlled neighborhood? Oswaldo denied his past throughout the grilling, but couldn’t lie when the man doing the interviewing said he needed him to lift his shirt. Oswaldo’s torso is covered in Barrio 18 ink. So he was rejected from yet another job, and soon after, his wife left with their toddler son, calling Oswaldo a failure.

He told a trusted pastor that he was struggling. Privately, he was so desperate that he was considering rejoining the gang. The pastor told him he knew a business that wanted to hire ex-gang members. Oswaldo couldn’t believe it.

“This is a country where people don’t believe that gang members can change,” he told The Intercept last fall, sitting in a conference room, employed at the company the pastor told him about on that day three years earlier. The company is League Central America, a textile factory that makes collegiate wear for U.S. universities such as Arizona State and Yale. League’s president, Rodrigo Bolaños, has long been a rare and vocal advocate in the Salvadoran business community for hiring former gang members. Bolaños argues that the problem of gangs in El Salvador isn’t so complicated. There have been gangs across the world, from England to Chicago, at every time in history, he says.

“The same way gangs generate, you can also get them out of gangs, if you do positive forces like second chances, education,” he said. The company tests those who belonged to El Salvador’s three main rival gangs — MS-13 and two factions of Barrio 18 — with techniques like icebreaker games that require physical closeness. If a new hire couldn’t stand it, Bolaños said, “that person wasn’t ready.” The company subsidizes employees’ secondary and college education if they haven’t finished it, and offers classes on-site.

League’s initiative has been widely celebrated, even by two leaders of MS-13, who once summoned Bolaños to a meeting at the prison where they were held, to say that they hoped all of their members could go through a program like his. Targeting people who have recently left a gang, or would like to leave, and offering them rehabilitation and employment is essential, a growing body of research on gang desistance has found. “League is a model for how to reinsert former gang members into society,” concluded a major academic survey of gang membership in El Salvador in 2017.

Rodrigo Bolanos (center), a salvadoran businessman who studied in an american University during the 1980s, now ows League Company. Looking to employ salvadorans gang members and then pass for rehab to leave behind crime. The picture was taken inside the Apanteos prison in Santa Ana, El Salvador and Bolanos is accompanied by two inmates. Rodrigo Bolanos, center, owner of League Company, photographed with two unidentified inmates inside the Apanteos prison in Santa Ana, El Salvador.

Rodrigo Bolaños, center, president of League Central America, photographed with two unidentified inmates inside the Apanteos prison in Santa Ana, El Salvador.

Photo: Salvador Meléndez

The U.S. government took a bit longer to come around. One day a few years ago, two representatives from the State Department’s Bureau of International Narcotics and Law Enforcement Affairs, or INL, came to visit. Bolaños says they were skeptical; it seemed to him that they “didn’t believe in this.” But after spending two hours talking to Bolaños and touring the factory, they seemed pleased — and INL later put funds toward a program that would specifically funnel ex-gang members who had just finished prison sentences into working at League.

It might seem unremarkable that the U.S. government would direct funds to a program that sounds so wholesome. But for El Salvador and neighboring countries like Honduras and Guatemala, it represents a delicate, tenuous shift in U.S. foreign policy. It marks a step away from years of a U.S.-supported approach that has favored the mano dura, or “iron fist,” response to gangs, and has mostly shunned work that directly engaged current and former gang members who wished to leave crime and violence behind. Past U.S. policy has erred toward an almost exclusively military, police, and mass incarceration response; and when violence prevention work was funded, the government stipulated that the organizations that implemented U.S.-funded projects on the ground must ensure the participants had no ties to a gang. In fact, until recently, it was prohibited under U.S. Treasury Department restrictions to use government aid money for any program that directly engaged members of MS-13.

This policy change could be imperiled by the attitudes and actions, currently in vogue at the White House, that are meant to demonize gang members. From his presidential campaign to the recent policy of separating families at the border, President Donald Trump has used MS-13 to justify his calls for harsher immigration laws. He has insisted that its members — who he has repeatedly called “animals” — should be treated as an existential threat to the United States.

But while Trump and many in his administration act as though Salvadoran gangs exist due to a lack of toughness, parts of the U.S. federal government in Central America — which for years enabled the implementation of exactly the kind of policy Trump calls for now — have recognized that mano dura has failed. “It’s a policy that did not have positive results,” said Enrique Roig, former coordinator of the Central America Regional Security Initiative for the U.S. Agency for International Development, a major vehicle for U.S. funds to the region. “The whole intention to focus more on the prevention side, on respectful law enforcement,” was to correct the mistakes of the past, like “the use of incarceration as the main method of dealing with the problem.” It is also meant to build “relationships of trust between communities and police, so people in communities actually report crime, and police know what’s happening by responding in a way that’s respectful of human rights.”

Exporting a Failed Approach

In the 1980s and 1990s, police forces in major U.S. cities went all-in on a tough-on-crime approach known as “broken windows” or “zero tolerance” policing, using surveillance and high arrest rates in response to all manner of minor crimes in order to stem major ones. Decades later, the United States is still wrestling with the failed legacy of broken windows, including mass incarceration and police brutality that sparked movements like Black Lives Matter and a wave of criminal justice reform. But countries across Central America are still implementing anti-gang zero tolerance policies, pushed and supported by the U.S. government. This is the case despite the fact that the approach has generally failed to lower crime rates across the region; in fact, it has often empowered police and military forces implicated in crimes themselves.

El Salvador, like most countries, has long had disaffected kids in poor communities who create gangs – Salvadoran anthropologist Juan José Martínez D’Aubuisson dates the earliest gangs to the 1950s, when state modernization prompted a disorganized mass internal migration to urban centers. What appeared were neighborhood or schoolyard crews defending their honor and territory with fistfights and knives. Throughout the mid-1990s and early 2000s, the homegrown crews meshed with the violent legacy of a recently ended civil war — and with U.S. street gang culture, which arrived among the tens of thousands of Salvadorans deported from the United States during that time. According to the FBI, many of those deportees were members of two gangs formed in the U.S. and composed mostly of embattled Salvadoran war refugees: the Mara Salvatrucha, also known as MS-13, and Barrio 18.

As the gangs grew in size and power, successive Salvadoran governments reacted with mano dura, doing so with the full backing of the United States. First officially implemented in 2003, the policy has consistently been sold to the Salvadoran public as the antidote to an explosion of gang violence that has sent thousands of people from El Salvador and neighboring countries north to seek asylum in the United States. But because of mano dura, young people in marginalized neighborhoods face skyrocketing police abuse, including torture and extrajudicial murder. Since the policy’s 2003 adoption, El Salvador’s jails have become notorious: A 2017 United Nations visit found one prison operating at over 900 percent capacity, and others between 200 and 600 percent. Inmates regularly die of preventable diseases. Meanwhile, the policy failed at its one objective; paradoxically, when it was implemented, the country had seen nearly a decade of declining murder rates, but ever since, violence has surged, spiking in the past three years so that El Salvador has held its spot among the murder capitals of the world.

SAN SALVADOR, EL SALVADOR - MAY 20:  MS-13 gang members languish in one of the three 'gang cages' in the Quezaltepeque police station May 20, 2013 in San Salvador, El Salvador. These overcrowded, 12x15 cages were designed to be 72-hour holding cells for common criminals and the two rival gangs, but many of the individuals have been imprisoned for over a year.  (Photo by Giles Clarke/Getty Images.)

MS-13 gang members languish in one of the three 12’x15′ “gang cages” in the Quezaltepeque police station on May 20, 2013 in San Salvador, El Salvador.

Photo: Giles Clarke/Getty Images

As mano dura has escalated into a low-intensity conflict between the gangs and the government, over the years, civil society organizations in El Salvador have been trying an alternative approach: working directly with gangs to help members leave or renounce violence, or in some cases, stepping in to mediate and interrupt vengeance killings, for example. These initiatives are often modeled on programs in U.S. cities like Boston, Chicago, and Los Angeles (the city where El Salvador’s largest gangs originated).

Such work is known in aid industry parlance as “tertiary violence prevention,” and it entails working with people who are not “at risk,” but rather already in conflict with the law. It is a type of restorative, not punitive, justice. No matter the form it takes, tertiary violence prevention faces intense skepticism and involves significant risks. In addition to requiring a closeness to the violence practiced by some gang members and state security officials, the groups that work with gangs are often themselves criminalized, cast by law enforcement or the general public as sympathizing with criminals.

It didn’t help that the U.S. government focused on empowering the Salvadoran police, and did little to address the root causes of gang violence. This was due to a pervasive “nervousness and concern” about tertiary work, said Roig.

The impact of the reticence in El Salvador was that in any project receiving U.S. federal funds, “it was strictly prohibited to work with youth in conflict with the law,” said Rick Jones of Catholic Relief Services. A major international nongovernmental organization and one of the pioneers of tertiary prevention in El Salvador, Catholic Relief Services had, since the early 2000s, been doing street work with current and former gang members to intercede in cycles of violence and to help guide them to licit employment so that they could leave gangs. The U.S. government was squeamish about such innovative work.

That policy was backed by law in October 2012, when the Treasury Department’s Office of Foreign Assets Control designated MS-13 a “transnational criminal organization,” adding the gang to a list alongside terrorist groups like Al Qaeda. Many experts dispute the extent and reach of the gangs’ transnational activities, including cross-border drug trafficking, arguing that most cliques are made up of kids from the country’s poorest neighborhoods who barely manage to feed themselves. Still, the designation set into motion a chain of possibilities for the U.S. government. For one thing, it enabled INL to open a field office in the country, which would be impossible without the presence of an officially designated transnational criminal group. In 2016, U.S. Immigration and Customs Enforcement built an entire cross-border strategy around the designation, “deploying special agents to El Salvador” who would work with the Salvadoran National Civil Police to chase the gang’s assets and act on a “free flow of actionable intelligence between ICE and our host country law enforcement partners.”

The direct impact of the Treasury Department’s designation is that it became illegal for U.S. citizens and corporations to engage in financial transactions with members of MS-13. The indirect impact was that it also became illegal for U.S. federal agencies to financially support any program that engaged with members of the gang, even if the program’s aim was to get those members out.

In conflict zones worldwide, these designations have had a chilling effect on tertiary work in which government or civil society actors attempt to engage with armed groups in order to end violence. Designations have interrupted peace talks and led to the disbanding of negotiation in places as diverse as the Philippines, Pakistan, Sri Lanka, and India.

The designation in El Salvador came on the heels of a secret gang truce, which the U.S. opposed. In March 2012, the Salvadoran government brought MS-13 and Barrio 18 to a negotiating table, and international cooperation agencies from the European Union and elsewhere pledged money to build initiatives meant to help former gang members disarm and re-enter society. Seven months later, the U.S. added MS-13 to a list populated by terrorist groups and high-level money laundering organizations.

The leader of the Mara 18 (18th Street Gang), Carlos Mojica Lechuga, a.k.a. "El Viejo Lin" (R), gestures during a press conference at the Female Jail in San Salvador, El Salvador on September 24, 2012. The leaders of the Mara 18 and Salvatrucha offered a press conference during the celebration of the 200 days of truce between them to reduce murder.  AFP PHOTO/Jose CABEZAS        (Photo credit should read Jose CABEZAS/AFP/GettyImages)

A leader of Barrio 18, Carlos Mojica Lechuga, right, gestures during a press conference at a women’s prison in San Salvador, El Salvador on Sept. 24, 2012. The leaders of the Barrio 18 and MS-13 offered a press conference to celebrate 200 days of truce between the rival gangs.

Photo: Jose Cabezas/AFP/Getty Images

“It was a mistaken belief in the U.S. Embassy that Salvadoran gangs were some kind of sophisticated criminal enterprise,” said Adam Blackwell, a Canadian diplomat who, as then-representative to El Salvador for the Organization of American States, was involved in truce negotiations. “I kept saying to them, ‘If that’s true, if they’re operating at the level of cartels, show me the money.’ And no one ever could.”

The truce was designed on international standards for post-conflict demobilization processes, like those used in Ireland and Colombia — and also on U.S. experiences with gang violence reduction, Blackwell said. “We were trying to convince the [U.S.] Embassy, ‘We’re just trying to do what you guys have done successfully in LA.'” It was to no avail. In El Salvador, where the U.S. has been, for generations, the single most important foreign influence, the message resounded like a gavel: The only acceptable way to define and address the issue of gangs is through punitive measures.

A New Chance for Second Chances

Although little noted at the time, U.S. federal agencies were not unified behind the Treasury Department’s designation and hard-line approach. In a 2014 interview, Roig was tight-lipped, saying only that USAID did not work with people trying to leave gangs, and that the 2012 designation “certainly places limitations on what USAID can do with MS.”

But in a recent interview with The Intercept, Roig, now a director at the Washington-based aid contractor Creative Associates International, said that behind the scenes, he and others were working to educate their peers about tertiary violence prevention. In 2012, USAID brought municipal leaders from Los Angeles to the region to share best practices from the city’s gang violence reduction program, which included tertiary work. Then came the Treasury Department designation, which made it more difficult to put the lessons from LA into practice, Roig said.

The fault lines of resistance didn’t occur by agency, Roig said, but by individual. In interagency meetings that included USAID, the FBI, ICE, and others, “some people would say, ‘You can never work with these kids, they’re criminals.’ Others would say, ‘Oh yeah, these great prevention programs, we should do more to support those.’ My experience was it depended a lot on the people.”

For years after the Treasury Department’s designation, USAID helped organize a series of high-level conferences and events on violence prevention, including tertiary work, in the U.S. and Central America. “We started writing it into all the strategy documents. When we did briefings on the Hill, we talked about it,” he said.  This “helped sensitize policymakers within State and AID,” and introduced into “the bureaucratic consciousness that this was the direction we wanted to move in.”

That analysis remained sidelined until 2015, when thousands of Central American children fleeing violence showed up at the southern U.S. border. Faced with the children, the Obama administration investigated the causes of emigration. In all three countries, it found systemic corruption. In Guatemala, there were conflicts over natural resources that were sometimes drug-fueled and often disproportionately affected native people; in Honduras and El Salvador, what stuck out was violence from narcos and gangs. The administration’s investigation led to a new openness toward tertiary prevention — a shocking move on the ground in El Salvador. Jones from Catholic Relief Services remembered thinking at the time that State Department visitors “are very open right now. … They are seriously exploring what can we fund that will work.”

In 2016, INL funded Florida International University political scientist José Miguel Cruz to conduct a study of how and why members choose to leave gangs or stay in them. His study found that 68.6 percent of current members of El Salvador’s gangs had intentions to leave. And while 16.7 percent said they’d never leave, the vast majority — 81.5 percent — said they knew someone who had “calmed down,” or become inactive in their gang. “Calming down,” more common than leaving entirely, is a way for members to preserve their gang identity while no longer contributing to violence and crime.

Those who are able to leave their gang face endless struggles, Cruz found, including running into former enemies, struggling to find work, family abandonment and police harassment. Employers which, like League Central America, know and accept employees’ pasts and are willing to support them through lingering struggles tied to their old lives are vital to keeping former gang members from joining again, the study reported to INL. That same year, a meta-study of violence prevention strategies around the world,  commissioned by USAID, recommended focused intervention with violent offenders and found that “aggressive ‘zero tolerance’ strategies … can create community tension and undermine collective efficacy.”

In February 2017, the Treasury Department awarded a waiver, called an OFAC license, to the State Department and USAID; the license allows agencies to do certain work with former or nonactive MS-13 members. The waivers expire at the end of this year, and federal agencies are preparing to seek renewal.

The license also covers the third-party organizations, like League and Catholic Relief Services, that carry out the projects funded in part by U.S. federal agencies. Although NGOs are free to apply directly for a license, Jones said Catholic Relief Services applied, was denied, and received no explanation of why. A spokesperson for the Treasury Department said the agency does not comment on individual licenses. (USAID and INL referred all requests for comment for this story to Treasury.)

One significant concern is that under some projects covered by the OFAC license, local organizations are required to hand over the identities of the people who participate in the violence prevention programs to a U.S. Embassy working group – composed of people from the Drug Enforcement Administration, FBI, Department of Homeland Security, Defense Department, and others — for vetting. Participants worry that the requirement will lead to increased surveillance and abuse by authorities, whether U.S. immigration officials or Salvadoran law enforcement. Several NGOs have formally submitted their resistance to the stipulation, which appears in an upcoming USAID project in Honduras, and are awaiting the government’s response.

The Honduras project provides a window into shifts in the federal government’s thinking on tertiary work. In February, USAID invited organizations to apply for funding to carry out a program to reduce recidivism among violent youth. The $8 million project, to be implemented in the five most violent municipalities across Honduras, is called “Improving Tertiary Violence Prevention.” With the project, USAID says it is complementing the work of Honduran state prison agencies that are “seeking to transform the juvenile justice system” to “a modern, rehabilitative, and restorative justice model,” and notes that the agency is now investing in multiple tertiary prevention projects in Honduras.

Roxana Anaya is a social worker that coordinates program Second Chance inside prisons of El Salvador. The program was created by Catholic Relief Sevices.

Rosa Anaya, of Catholic Relief Services, coordinates the program “Second Chances” inside prisons in El Salvador.

Photo: Salvador Meléndez

In El Salvador, Catholic Relief Services and League are using U.S. funds for a program called “Segundas Oportunidades,” or “Second Chances,” which seeks to create a pipeline from prison to employment, including job training for inmates, cognitive behavioral therapy, and workshops focused on topics like “masculinities,” the study of distorted ideas of manhood, childhood trauma, and violence — or, as Jones put it, “where it all came from in the first place.” The idea is to send a message: “You have a choice. This is not normal. You can change,” he said. The 2016 USAID study singled out cognitive behavioral therapy, particularly programs focused on “becoming a man,” as the single most effective violence-prevention strategy.

Catholic Relief Services and League also recruited other NGOs and the Salvadoran national justice and prison systems to join Second Chances. The wide buy-in is important, because the root of gang violence isn’t individual failure, but systemic injustices that must be rectified across society, said Rosa Anaya, the Catholic Relief Services chief of party for Second Chances. “No judge, government institution, company, family, or individual will be able to overcome alone the great disaster in which we’ve found ourselves.”

And not a moment too soon: “Over the next five years, 12,000 people will have fulfilled their sentences. What will they do?” asked Jones. “These programs are critical to reducing recidivism.”

Last October, we entered a prison outside San Salvador called Apanteos, along with a major delegation of NGOs, local businesspeople, and two representatives from INL. Painted a fresh yellow, with the words “Yo Cambio,” or “I Can Change,” across the gate and many of the walls inside, Apanteos was decked out for a graduation celebration for Second Chances. We were led on a tour of the prison’s kitchens, where inmates train as cooks; the hen cages, where a teenage prisoner showed off rows of eggs to the visitors; and tanks where they farmed tilapia. It was a visit day, and the common yard was full of families.

A small chicken farm is run by the inmates inside the Apanteos prison, in Santa Ana, El Salvador. American organizations visited the prison looking to help salvadorans who were gang members.

Media, representatives from the U.S. and Salvadoran governments, and local business leaders take a tour of a small chicken farm, which is run by the inmates inside the Apanteos prison in Santa Ana, El Salvador.

Photo: Salvador Meléndez

Over the last year, Second Chances has trained 811 people, including current and former inmates and employees of the justice system and private sector. Among other factors, Catholic Relief Services measured inmate participants’ positive changes in attitude. “To have evidence of a trustworthy change and a credible support network behind them helps businesses feel like they can employ these people,” said Anaya. Among the 21 Second Chances participants who have completed the program and been released, 18 have been able to find jobs.

The Treasury Department ban on using U.S. money to engage with MS-13 is still in effect. But none of the organizations that make up Second Chances are violating it, because they’re covered by the OFAC waiver. Without the dispensation, this work would be a violation of U.S. federal law.

Mixed Messages

INL now publicly celebrates the tertiary work it funds. In an April 2017 speech at League Central America about Second Chances, Glenn Tosten, then-director of the INL section at the U.S. Embassy in San Salvador, said that to watch the first people pass through Second Chances “changed the way I saw security challenges in El Salvador.” He continued, “I should admit that at first I felt skeptical. I thought there was no other option … that the young people who joined gangs in El Salvador were lost forever.” But the program “convinced me that, in fact, there is another way. There is a process and a support system that truly can transform people’s lives.”

That message is still a minority voice in the U.S. government. Mostly, the focus is on aiding and training the Salvadoran police — despite a well-documented record of shakedowns, abuses, and extrajudicial killings.

When his shift ended at League, Oswaldo still had to return to the streets of a society that believes gang members leave “only through the grave.” He was terrified of the police. One of his greatest fears, he said, is that officers will stop him on payday, see the cash in his pocket from his salary, “and say it’s [money from] extortion. And then kill me.” His wife still hadn’t returned with their son. She said she feared drawing police attention through her association with him.

The Salvadoran press has repeatedly uncovered cases of torture and extrajudicial murder of suspected gang members by police and soldiers. Young people from poor communities face constant harassment from authorities; are often taken into custody without reason; and frequently have drugs or “extortion money” planted on them. Sometimes, the police are working for a rival gang, but often, they’re just corrupt. Abuse of authority is so bad that the minister of security recently admitted that state violence contributes to the country’s refugee crisis.

U.S. federal agencies continue supporting the Salvadoran police in an attempt to professionalize them, they say — but the aid flows even to units implicated in severe and systematic human rights abuses. The Departments of State, Defense, Justice, and Homeland Security reported a wide range of donations and training for the Salvadoran National Civil Police in 2015 and 2016, according to data released to Congress and shared with The Intercept by John Lindsay-Poland, a Latin America expert who participated in making the request. The donations and training spanned combating cybercrime and narco-trafficking, administering polygraphs, “arrest techniques and self defense,” and “K9 nursery care.” Trainings also covered intelligence gathering and special ops commando courses. Donations include items like pickup trucks, computers, cameras, bunk beds, and bulletproof vests.

The State Department also reported that it donated body cameras and provided other assistance to the internal department of the national police that investigates allegations of police abuse. But a recent study from the Government Accountability Office found that overall, State and other departments are not systematically implementing human rights into their trainings in El Salvador and other Central American countries. Roig, the former USAID official, says the fact that aid reaches units implicated in systemic abuses “is not positive at all,” and is an obstacle to effective violence prevention. “It’s harder to do prevention work and community policing when you’ve got a general distrust of the police and human rights abuses,” he said.

Another place the U.S. has loudly supported a system rife with rights abuses is in El Salvador’s prison system. A regime of special laws known as “extraordinary measures” restrict alleged gang members’ access to basic needs like food, water, and communications with the outside world. With “extraordinary measures,” inmate deaths doubled, largely because of outbreaks of diseases like tuberculosis, according to a June 2018 U.N. report.

The U.N. and Red Cross have called “extraordinary measures” a violation of human rights and urged the Salvadoran government to repeal them. The current administration of President Salvador Sánchez Cerén has said that such outcry is based on falsehoods, and successfully enshrined the policy, originally temporary, into law — which the U.S. Embassy supports. In April 2018, when the measures came up for renewal, U.S. Ambassador Jean Manes encouraged Salvadoran congressmen to vote affirmatively, saying in a televised interview, “We talk about extraordinary measures, but these are normal measures.” Then she joked, “If the gang leaders don’t like it, then I do like it.”

By pushing policies like these, the U.S. is fueling violence on one hand, while trying to solve it with the other through tertiary prevention.

Commissioner Hugo Ramirez, subdirector for public security in El Salvador’s National Civil Police, wishes that would change. “It turns out that the more muscle we developed, the more undesirable effects we saw,” he told The Intercept. Ramirez has traveled around the United States to study community policing and tertiary violence prevention initiatives. His is not a common view among Salvadoran police, but he now argues that, “definitively, if we don’t take this on from a focus of tertiary prevention, it won’t be possible. It’s a debt we owe to this country.”

“If the U.S. would support this,” he added, “it’s fundamental.”

Currier and Mackey reported this story as Adelante Latin America Reporting Fellows with the International Women’s Media Foundation. Mackey’s reporting was also made possible by a grant from the Fund for Investigative Journalism and a fellowship with the Schuster Institute for Investigative Journalism, with support from the Ford Foundation.

Top photo: A group of inmates inside San Vicente prison celebrate their completion of the “Second Chances” program.

The post El Salvador is Trying to Stop Gang Violence. But the Trump Administration Keeps Pushing Failed “Iron Fist” Policing. appeared first on The Intercept.

A Deported Father Made a Desperate Attempt to Reunite With His Son

Hundreds of children who were separated from their mothers and fathers at the border earlier this year remain in the U.S. without their parents — parents who were deported by the Trump administration. In late June, an American Civil Liberties Union lawsuit won reunification for children with their mothers and fathers who remained in Immigration and Customs Enforcement detention. But the suit does virtually nothing for parents already deported. With very few exceptions, they have no right to return to the U.S. Reunification will happen only if they agree to have their children deported — which could put many in mortal danger.

Some of these parents are attempting to sneak across the border to get back together with their children. Rudy Ramirez Mendez, who I wrote about in August, is one parent who tried. He was deported after being separated from his 9-year-old boy, Rudy Jr., and he recently tried to return on his own to the U.S. It was a desperate move, but not a unique one. At least one other parent is known to have done the same.

Ramirez, his wife, Ingrid, and Rudy Jr., traveled together from Guatemala in June, but were separated on the Mexican side of the border by smugglers. They put the father and son in one group and told Ingrid they would bring her across later. Ramirez and Rudy Jr. turned themselves in at the Rio Grande and were immediately separated by Border Patrol agents. Rudy Jr. was sent to a shelter in New York.

Alone in detention, Ramirez quickly became distraught. He says he was promised that if he signed deportation papers, Rudy Jr. would accompany him back to Guatemala. He signed and expected his son to be on the ICE deportation plane. Rudy Jr. was not there.

Meanwhile, Ingrid crossed into the U.S. alone, not knowing what had happened with her husband and son. She also was apprehended by the Border Patrol. She was put into immigration detention and eventually had an interview to explain to immigration authorities that she and her family fled Guatemala because their lives were being threatened by criminals. Her interview won her the right to stay in the U.S. at least until she receives a full immigration hearing.

Back in Guatemala, Rudy Sr. experienced so much anxiety about the loss of his family that half of his face became paralyzed, and he was hospitalized. NPR visited him in his village and reported on his case.

Rudy-Jr-Ingrid-1538175712

Ingrid and Rudy Jr., after being reunited in August 2018.

Photo: Debbie Nathan for The Intercept

In August, Ingrid and Rudy Jr. were released from the shelter and detention, and reunited. They went to the Midwest to live with relatives. Meanwhile, the ACLU settlement specified that very few deported parents could expect to return to the U.S. Ramirez was left in the cold; hence his last-ditch effort. He arranged with a coyote to be smuggled north again.

He had a cellphone, and I interviewed him during his trip. By the time I first spoke with him, he had spent days on the road and reached the city of Villahermosa, in southern Mexico.

The next time I heard from him, last week, he had already spent several days in a stash house in Reynosa, an extremely violent, cartel-ridden city in Mexico across the border from McAllen, Texas. His voice sounded tired and weak. “There are 80 of us in three rooms,” he said. “We usually get two meals a day, beans and eggs, but sometimes we get no meals. No beds — we all sleep on the floor. We take turns using the bathroom. The coyote won’t let us outside.”

Cell phone video provided to The Intercept by Rudy Ramirez Mendez shows conditions inside a stash house in Reynosa, Mexico.

With his cellphone, Rudy took videos of the stash house. It was so crowded that people mostly lay and sat on the floor, trying not to jostle each other to move around. In the video, they are heard complaining of the heat, and the men are shirtless. The coyote told them that, once in Texas, they would walk northward at night through desolate South Texas ranchlands, skirting Border Patrol checkpoints.

The weather in South Texas is still very hot in late September — temperatures reach the 90s, with sweltering humidity. The trip through sticky mud and blowing dust can take days, and Ramirez had only two jugs for water. The coyotes said that the migrants would have to turn off their phones during the hike — they could turn them on only if they collapsed and needed 911.

Many make the call too late. South Texas has become a charnel house of corpses and skeletons. More than 600 sets of human remains, many unidentified but virtually all presumed to be undocumented migrants, have been recovered in Brooks County alone since 2009. A sheriff in the area estimates that for every set found, five remain undiscovered. During the past two fiscal years the Border Patrol’s Rio Grande Valley sector, where Brooks County is located, has counted far more migrant deaths than even the desert sector in Arizona.

No one knows how many deported parents besides Ramirez have been trying to return to the U.S. The South Texas office of the Texas Civil Rights Project knows of one other case. The parent was a mother, said Efrén Olivares, an attorney with the project. She was caught by the Border Patrol as she attempted the crossing.

There could be more cases. According to the ACLU’s most recent report to Judge Dana Sabraw, of the U.S. District Court of the Southern District of California, of the total 2,654 children separated during “zero tolerance,” 243 kids are living with sponsors in this country, many because their parents were deported. In addition, 254 children remain in shelters subsequent to parental deportation. Most of their parents are in Central America.

PHOTO-2018-08-03-12-10-29-1533571705

A self-portrait of Rudy Sr., Rudy Jr., and Ingrid, taken shortly before they left Guatemala for the U.S.

Photo: Courtesy of the Mendez family

If parents besides Rudy Ramirez are coming back to the U.S. with smugglers, it’s unlikely that they are walking quietly up to Border Patrol agents and asking to be taken into custody — which is what immigrants usually do when they have their children with them. Instead, solo travelers typically try to evade the agents. Many are successful. The Border Patrol claims that it catches almost 80 percent of illegal crossers in the Rio Grande Valley, but that figure includes the families who turn themselves in. For crossers in general, including people traveling solo, National Border Patrol Council chief Brandon Judd has said that the apprehension rate is actually only 10 to 50 percent.

On Wednesday, after more than a week in the stash house, Ramirez was finally moved across the border. On Thursday, he was caught by the Border Patrol. By Friday, he was awaiting a second appearance in criminal court and planning for a long stay in an immigration detention center while he makes the asylum claim he says ICE tricked him into giving up.

The post A Deported Father Made a Desperate Attempt to Reunite With His Son appeared first on The Intercept.

ICE Defied a Court Order in Vendetta Against Deportee

Danny Michel’s daughter and attorneys kept refreshing a map tracking his flight as they walked into federal court in Manhattan on a sweltering Monday evening last month. On their phones, they watched his JetBlue flight from Port-au-Prince land at JFK airport as they waited for the after-hours judge on duty to see them. Timing was key: U.S. Immigration and Customs Enforcement had warned that they would detain Michel as soon as he stepped on U.S. soil. They needed the judge to stop ICE before it got to him.

Michel’s attorneys succeeded, but for the next several hours, they found themselves fighting with the government to have their client released while ICE held him in violation of the judge’s order. By the time he finally walked free the next day, Michel had been in ICE custody — illegally — since landing in the U.S. nearly 10 hours earlier.

“This is classic ICE intimidation tactics; this is what they do,” Gregory Copeland, a supervising attorney with Legal Aid’s immigration law unit, and one of Michel’s attorneys, told The Intercept. “They’re sore losers. When they lose, and somebody gets released, they still try to be heavy-handed and throw around their authority or whatever it is. That’s typical ICE behavior.”

It had taken more than two years to get Michel home. A 54-year-old with a youthful smile, he had lived in the U.S. as a legal permanent resident since 1970. Born in Haiti, Michel was raised in Brooklyn and was living on Long Island when two drug convictions triggered deportation proceedings against him in 1999. Michel spent the next six years, until 2005, in an immigration detention center in upstate New York, then 10 more years under a deportation order but free on bond, meaning that he had to check in regularly with immigration officials — which he did religiously.

Then in June 2016, without notice, Michel was detained at his regular check-in, sent to ICE facilities in Alabama and Florida, and deported in July. Before his deportation, Legal Aid filed a motion with the Board of Immigration Appeals challenging a years-old deportation order against him, on the grounds that he had become eligible for citizenship decades earlier, and that the charges filed against him were no longer considered removable offenses. They also asked the board to stop his deportation while the motion was pending, which the board refused to do because it found the motion to reopen the case unlikely to succeed. When the motion did succeed, only weeks later, Michel was already in Haiti, a country he had last seen when he was a toddler.

Deportation is often the last chapter in legal battles and human dramas that unfold over years, but Michel managed to navigate Kafkaesque bureaucracies in both the U.S. and Haiti to return, fight his case, and win a rare victory: Shortly after his return, an immigration judge terminated his deportation proceedings, and while ICE has asked the judge to reconsider that decision, Michel is, for now, a free man.

But while his two-decade struggle with U.S. immigration enforcement points to a system that has long been mired in intransigence veering on the absurd, his first night back after deportation, and ICE’s insistence on detaining him even after a judge had ruled that they couldn’t do so, speaks of an agency that is growing increasingly rogue — emboldened by the political moment to exert authority even where it has none, and to defy the rule of law even when it claims to be enforcing it. ICE did not respond to requests for comment. The U.S. Attorney’s Office for the Eastern District of New York, which represented ICE in court, declined to comment.

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A view of 26 Federal Plaza in New York, at left, down Duane Street.

Photo: Ariel Zambelich/The Intercept

First Night Back

Michel’s flight landed around 9 p.m. By 9:15 p.m., Judge Margo Brodie had issued a restraining order prohibiting ICE from detaining him without showing the court “clear and convincing evidence” that he was a flight risk or a danger to the community. ICE was notified of the decision by 9:18 p.m., according to court documents filed in the following hours.

Michel’s 30-year-old daughter Britney, who had tried to decipher what the judge would decide from the tone of her questions and by looking for signs of confidence in the attorneys’ answers, allowed herself to be hopeful at last. As the group walked out the chambers, a janitor saw the smiles on their faces and gave them a thumbs-up.

While Britney and the attorneys were still waiting in court, on the plane to New York, Michel ate snacks and watched The Avengers while he tried to calm his nerves. He couldn’t believe that he was really going home. He had felt a similar sense of incredulity on his last flight two years earlier: He had been in shackles then and headed to a country he couldn’t remember. “When we landed and the doors opened, I felt the heat just come in,” he told me during a recent interview, recalling his first moments in Haiti. When he walked out of the Port-au-Prince airport and into the city’s streets, buzzing with cars, vendors, chickens, and pigs, he had found himself in a world he had only seen on National Geographic.

Now making the opposite journey, Michel had just one worry: “At the back of my head I’m like, are they going to lock me up?” he said. “But you know what, my daughter said, ‘Daddy, be strong and think positive’ so I started thinking like that.”

For someone who has endured the ordeal he has, Michel comes off as an impossibly positive guy, who jokes about his exchanges with unsympathetic officials and appears to draw from a bottomless well of cheerfulness. But when his plane landed in New York, his optimism was tested. The pilot warned there were “mechanical issues” with the gangway. “I’m like, OK, maybe they’re waiting for me,” he recalled thinking. Moments later, the pilot asked, “Is there a Danny Michel on the plane?”

With everyone’s eyes on him, Michel made his way down the plane. A short man flanked by two uniformed officers curtly asked if he had his paperwork — Michel took a breath and replied, “Hi, how are you? Yes, I got some paperwork.” The officers ordered him to follow them and handcuffed him in front of everyone, before leading him to a freezing room, then a different terminal, and finally a van. They asked him questions but gave few answers. “You are going to our office,” they told him after he insisted to know where they were taking him. “And then you are going to be transferred to another place.”

“They’re Not Releasing Me”

After they left court, Britney and one of Michel’s attorneys, Sarah Gillman, took a taxi to the airport to pick him up, but Michel was nowhere to be found.

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Sarah Gillman, an attorney with the Legal Aid Society.

Photo: Ariel Zambelich/The Intercept

Gillman contacted the government’s attorneys, who told her that ICE officers would get in touch. When they finally did, at 11:41 p.m., they told her that they had taken Michel to 26 Federal Plaza, an immigration court building in downtown Manhattan. Gillman called Copeland, who had gone home and could get back to Manhattan faster. Finally, at around 1 a.m., Michel called too: “They’re telling me that they’re not releasing me.”

As she watched Gillman frantically call and email, Britney’s excitement crumbled. “I was so excited, just eager to see him,” she told me. “And then we got to the terminal and we waited, and waited, and waited, and so that excitement slowly drowned.”

Britney and Gillman rushed back to Manhattan and met Copeland outside the court. For the next several hours, they stood on an eerily deserted Duane Street, just outside the court entrance, emailing the government’s attorneys and demanding that ICE release their client.

“You continue to detain Mr. Michel for immigration purposes in violation of the Judge’s order,” Copeland emailed the government’s attorneys at 1 a.m. “A Deportation Officer is now telling Mr. Michel that he is not being released tonight, saying they do not have the authority. This is outrageous.” “Mr. Michel has still not been released,” Gillman emailed at 2:05 a.m. — and then again at 2:30, 2:58, 3:57, and 6:29 a.m.

At some point, Britney fell asleep sitting on the sidewalk. Around 4 a.m., Copeland left to file a new motion asking the court to compel ICE to release Michel. Britney left a little later — she was exhausted from the night’s emotions, and she had to be at work in a few hours. Gillman remained alone outside the court, emailing and texting the government for news of her client. The court’s security asked her, “You’re still here?” — she later told me — “Yes, I’m still here because my client’s still inside,” she replied.

Then at 6:35 a.m., after Copeland filed a motion to hold ICE in contempt of court, the government’s attorneys emailed to let Gillman know that Michel would be released “within the next few minutes.” An ICE officer then called her and told her to go meet Michel on the street.

“Excuse me?” she said she replied. She had told ICE all along where she was standing – right at the court’s entrance. The officer replied, “Your client’s on Broadway. Just go and meet him.” Incensed, Gillman asked for the officer’s name. He replied, “Don’t worry about it, hon.”

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Danny Michel, right, helps his father, Paul Salim Michel, take a seat in the living room of Michel’s parents’ home on Long Island.

Photo: Ariel Zambelich/The Intercept

A Long Journey Home

I met Michel and his family a week after he returned home, at his elderly parents’ home on a tidy street in Elmont, New York. Michel seemed as excited and incredulous as if he had just arrived. His family is tight-knit, and he had clearly been missed.

Michel’s parents sat and listened as he recalled his ordeal over tea. His father has been sick for decades, and moves and speaks with difficulty. Michel was always the one to take care of him before he was deported; the two years without Michel were tough on the family. For as long as Michel could remember, his mother had been the family’s pillar — working two or three jobs while he and his siblings were growing up in Flatbush, and finally saving up enough to move the family to a pretty house on Long Island. When Michel was released after nearly six years in immigration detention, on a $25,000 bond, his mother had to guarantee the bond against the house.

“There were many times that I felt I wasn’t going to see my family again,” Michel told me, speaking in his parents’ living room, which was covered wall-to-wall with family photos. “My mom, my daughter, and goddaughter, they were really the backbone of the family. Without them I wouldn’t be standing right here.”

Britney’s life had been marked by her father’s two-decade ordeal with immigration. He had spent most of her teenage years in immigration detention. “I didn’t see my dad for years,” she said. “He was my letter buddy, because he wrote me letters all the time.”

“Although he wasn’t there physically, he was still there on the phone, constantly helping me out with school stuff on the phone,” she added. “I would lash out with my mom and he was the mediator between us, even though he wasn’t physically there, he was there, regardless.”

When Michel was released on bond, they grew even closer. He would go over to her apartment in Brooklyn and fix things for her, or help her paint the walls. There were family barbecues, and for the first time, Britney thought he might be there on the day she got married.

“Then when he was detained, that reality that I once had of him, of not knowing when he would come home, suddenly resurfaced,” she said. “I am just exhausted with having to deal with him being here for a little, short period of time, and then him being gone. And for what?”

When Michel was in Haiti, they’d talk on WhatsApp — but poor phone and internet service and constant electricity cuts made keeping in touch a constant source of frustration. They also made getting Michel home a lot harder, as his lawyers struggled to communicate with him.

In Haiti, Michel had no money or support system. A distant relative picked him up at the airport when he was deported, and from New York his parents helped him find a place to stay in the south of the island and sent him some money every month so he could eat. But Michel didn’t speak Creole well, couldn’t get a job, and was embarrassed to have gone back to Haiti a deportee.

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Danny Michel as a young boy, before immigrating from Haiti to the U.S.

Photo: Courtesy of the Michel family

“I never really thought of myself as Haitian growing up,” Michel said. “I’ve been here since I was 5, so all I’ve known was really America, and growing up in America.”

“It’s very difficult to walk down the street without people looking at you, because you look different, you walk different, you don’t speak,” he added of his time in Haiti. “Every day I was just dealing with the shadow of myself, do you know what I mean? I wasn’t there. I was somebody else, in a strange place.”

Michel spent most of his time in Haiti going to church and trying to get the paperwork he needed to come back to the U.S. That wasn’t easy. He had no understanding of Haiti’s bureaucracy, and no connections to help him through a system that largely moved through personal favors. “It was really challenging for him,” Gillman recalled. “I remember him saying to me, I don’t know how many times, ‘Sarah, I think I almost got the passport,’ but then he didn’t get the passport. ‘Sarah, I think I almost got the passport,’ but he didn’t get the passport. ‘Sarah, I went to the office, and they were supposed to have the passport ready, and they’re not.’”

“Something was always missing,” Michel said. “Anytime something was spelled wrong, it had to go back to Port-au-Prince. … The date is incorrect, it has to go back to Port-au-Prince.”

“Let me tell you, they say the squeaky wheel gets the oil, so I just started bothering people all the time,” he added. “I was like, I need it, I need it. It’s for my ID. I need it.”

When Michel finally got his passport, Britney bought him a ticket home, as his lawyers prepared to prevent ICE from detaining him again. But Michel’s hopes were dashed at the check-in desk: The government had failed to tell his attorneys that he needed additional documentation from the U.S. Embassy in Haiti. “I was distraught,” he said. “Because I was ready to go. I finally put my mindset on going.”

It was a Friday. Michel went straight from the airport to the embassy, where he was told the documents he needed would only be valid if issued on the day he traveled. Michel’s family and attorneys tried to book him on a flight two days later — but that was a Sunday, and the government’s attorneys demanded that he fly during a business day. “Not a hint of feeling bad about forcing this guy to go back and forth to the airport,” Copeland told me. “Not a hint that they’re causing extra work for us. They just absolutely could not care.”

At last, on Monday, August 27, Michel got the documents he needed, made it through security, got on a plane, and finally, after hours held by agents with no authority to do so, home.

“It’s a competition to them. The sense of justice and fairness is almost lost. It’s approaching law enforcement like a no-holds-barred game,” said Copeland. “Like, ‘We’re going to flex our muscle and do what we can do just because we can do it.’”

“Even when what they are doing is patently lawless.”

Top photo: Danny Michel, photographed at his parents’ home on Long Island, New York, on Sept. 5, 2018.

The post ICE Defied a Court Order in Vendetta Against Deportee appeared first on The Intercept.

The Unbearable Dishonesty of Brett Kavanaugh

Many of us who watched Thursday’s Senate hearing spent much of the time cataloguing Supreme Court nominee Brett Kavanaugh’s lies. After hours of testimony, during which Dr. Christine Blasey Ford answered questions about her alleged sexual assault, the financing behind her lie-detector test, and whether she was really afraid of flying, viewers were treated to more hours of testimony from Kavanaugh, a federal judge who struggled to give a single straight answer.

Kavanaugh strained credulity when he argued before the Senate Judiciary Committee that the “Devil’s Triangle” a phrase that appeared on his high school yearbook page referred to a drinking game, a definition which, before Thursday, you’d have a hard time finding anywhere. (It actually refers to a sex act involving two men and a woman). He also unabashedly claimed that the term “boof” is a reference to “flatulence,” rather than other butt stuff, and that “ralph,” which means to vomit implicitly from the overconsumption of alcohol was a reference to Kavanaugh’s weak stomach.

Kavanaugh claimed references to “Renate Alumnius” in his yearbook were allusions to his friendship with classmate Renate Schroeder Dolphin, and not, as many understood, a sexist smear about her promiscuity. (Dolphin told the New York Times days before the hearing: “I can’t begin to comprehend what goes through the minds of 17-year-old boys who write such things, but the insinuation is horrible, hurtful and simply untrue.”) Kavanaugh even claimed to not really know Ford at all, despite her testimony that she “went out with” one of his close friends someone whose name appeared in his now notorious calendar 13 times.

Kavanaugh’s choice to lie about things that are easily disproved speaks to a kind of hubris that’s fitting to someone of his pedigree.

Kavanaugh’s choice to lie about things that are easily disproved speaks to a kind of hubris, or entitlement, that befits someone of his pedigree. He insinuated that he was of drinking age during the summer of 1982 because, back then, in Maryland, 18 year olds could legally imbibe. With artful wording, he testified that drinking was “legal for seniors,” even though it was decidedly illegal for him — a rising senior who wouldn’t turn 18 until the following year. At other moments, he claimed ignorance about the consequence of plainly relevant evidence railing against the suggestion that his high school yearbook, a totem to debauchery and sexual frustration, could be relevant to the issue of whether he committed blacked-out sexual assault in high school. “Have at it, if you want to go through my yearbook,” he told Sen. Sheldon Whitehouse, D-R.I., with disdain. As though the inquiry itself was made in bad faith.

In fact, Kavanaugh dissembled about whether he ever drank to excess at all   an incredible claim given the contents of his yearbook; his friend Mark Judge’s damning memoir, which is titled “Wasted: Tales of a GenX Drunk;” and the sheer number of  times Kavanaugh mentioned “beer” during Thursday’s hearing. Although he admitted in his opening statement that “sometimes I had too many beers,” when pressed on how much was too much, he was evasive again: “I don’t know. You know, we — whatever the chart says, a blood-alcohol chart.” 

Perhaps most gallingly, when Sen. Amy Klobuchar, D-Minn., asked Kavanaugh whether he had ever blacked out — just after she empathetically offered that her own father had struggled with alcoholism — he turned on her and shot back: “I don’t know, have you?” (Kavanaugh later apologized to Klobuchar.)

He even tried to play off Judge’s memoir as “fictionalized” — this despite the book’s title page, which reads: “This book is based on actual experiences.” No lie, it seems, is too small for Kavanaugh.

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Christine Blasey Ford takes a break from testifying at a U.S. Senate Judiciary Committee hearing on Sept. 27, 2018.

Photo: Erin Schaff, Pool/Getty Images

Among the most consequential of Kavanaugh’s false claims, and the one Senate Democrats pushed back against the least, was his assertion that all of the witnesses who could corroborate Ford’s testimony denied it ever happened.

In true Kavanaugh fashion, that’s not quite right.

Ford testified that in addition to Kavanaugh, at least four other people were in the house on the night of the alleged assault: Mark Judge, who Ford alleges witnessed the assault; and P.J. Smyth, Leland Ingraham Keyser, and an unnamed boy — all of whom Ford said were downstairs when the alleged assault occurred.

Nine times during Thursday’s hearing, Kavanaugh claimed that four of the teenagers, including himself, made statements affirming that Ford’s version of events didn’t happen. 

In an exchange with Sen. Richard Blumenthal, D-Conn., Kavanaugh argued, “But the core of why we’re here is an allegation for which the four witnesses present have all said it didn’t happen.” Later, in an change with Sen. Cory Booker, D-N.J., the nominee claimed, “The witnesses who were there say it didn’t happen.”

But, apart from Kavanaugh, who denied the allegations, none of the named witnesses said the allegations didn’t happen. Rather, they stated that they did not recall the house party, or have personal knowledge of the alleged sexual assault.

Having “no recollection” of the night in question, or no “knowledge” of the alleged events, is not the same as saying it didn’t happen.

Kavanaugh specifically argued that Judge had “provided sworn statement saying this didn’t happen.” But in Judge’s letter to the Judiciary Committee, sent on September 18, he wrote that he has “no memory of this alleged incident,” does “not recall the party described,” and “never saw Brett act in the manner Dr. Ford describes.” (On Thursday, after the conclusion of Kavanaugh’s testimony, Judge followed up with a second letter, stating that he did “never saw Brett act in the manner Dr. Ford describes.”)

Moreover, Keyser’s statement, issued by her lawyer over the weekend, says only that she “does not know Mr. Kavanaugh, and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.” Not that the event “didn’t happen.”

Further complicating matters, Ford testified that after Keyser submitted her September 19 statement, she texted Ford “with an apology and good wishes.” And last weekend, the Washington Post reported that Keyser believes Ford’s allegations — hardly the refutation Kavanaugh claimed.

Smyth’s letter to the Senate Judiciary Committee stated only he has no personal knowledge of what’s alleged to have occurred between Kavanaugh and Ford. “I am issuing this statement,” he wrote, “to make it clear to all involved that I have no knowledge of the party in question; nor do I have any knowledge of the allegations of improper conduct [Ford] has leveled against Brett Kavanaugh.”

Importantly, having “no recollection” of the night in question, or no “knowledge” of the alleged events is not the same as saying it didn’t happen — especially since Ford never alleged that anyone but Kavanaugh and Judge witnessed the assault. So why would a judge, someone presumably familiar with the implications of what it often means when a witness avers they “do not recall,” so grossly mischaracterize the nature of those statements?  

Kavanaugh’s apparent willingness to perjure himself over accusations of underage drinking or sexual innuendo — which, alone, don’t necessarily bear on his suitability for the bench — is troubling both because of what it implies about his integrity, and because of what it suggests about his reasoning as an adjudicator.

How should we judge someone who, during his testimony, repeatedly misrepresented facts and disassembled when pressed for detail? Should we understand these moments as lies, or as misinterpretations rooted in substandard analytical rigor? And given the importance of the position at hand, which is worse?

The law, in large part, is parsing hairs.

Some of this may seem like parsing hairs, but the law, in large part, is parsing hairs. Easy questions don’t make it to the Supreme Court. Slam dunk cases settle out. Outside of constitutional issues, the Supreme Court only agrees to hear cases that are so subject to interpretation, they’ve been inconsistently decided between states or federal circuits. Analytical precision, therefore, is a big part of the job. 

That being the case, it was concerning to hear a federal judge clamor for “due process” as he sidestepped an opportunity to call witnesses, hear evidence, or have his name cleared by a federal investigation. How should we view a federal judge who seems not to understand, or who for political reasons ignores, that he is not, in fact, on trial, but at a job interview? Who, either due to a lack of understanding or a surfeit of political ambition, emotes as though the stakes were that of a criminal proceeding where the high burden of proof would militate in his favor? Do we want a justice who artfully aims for what’s “technically” true (and misses often), or one whose integrity is, well, unimpeachable?

Senator Ted Cruz, a Republican from Texas, center left, Senate Majority Whip John Cornyn, a Republican from Texas, center, and Senator Lindsey Graham, a Republican from South Carolina, center right, gather during a Senate Judiciary Committee hearing in Washington, D.C., U.S., on Thursday, Sept. 27, 2018. Supreme Court nominee Brett Kavanaugh angrily, tearfully and "unequivocally" denied sexually assaulting Christine Blasey Ford, after she told senators at a dramatic hearing that shes "one hundred percent" certain he is the one who attacked her when they were teenagers. Photographer: Matt McClain/Pool via Bloomberg

Senator Ted Cruz, center left, Senate Majority Whip John Cornyn, center, and Senator Lindsey Graham, center right, gather during the Senate Judiciary Committee hearing in Washington, D.C., on Sept. 27, 2018.

Photo: Matt McClain, Pool/Bloomberg/Getty Images

“Due process” means fair treatment under the law — that an accused person has notice of the proceedings being brought against them and an opportunity to be heard before the government takes away their life, liberty, or property. The fundamental goal of due process is to prevent the state from depriving people of their most precious freedoms. But Kavanaugh isn’t threatened with any of those deprivations. He’s not facing jail time, a fine, or any confiscation of personal goods. The stakes are these: whether he will go from sitting on the bench of the second most prestigious court in the land, to the first.

What matters, then, is whether Kavanaugh is of sufficiently fit character to fairly and ethically interpret the law. Thursday’s hearing, perhaps as much as the allegations against him, have thrown that into serious doubt.

A primary question here, and one that has largely been skipped over by the the general public, is why, precisely, Kavanaugh’s past behavior, up to and including Thursday’s hearing, has any bearing on his ability to serve on the Supreme Court. What behavior would we consider disqualifying as a matter of principle? What qualities are non-negotiable in the nation’s top jurists — women and men whose decisions directly affect the lives of over 300,000 million citizens, and billions across the world who are often beholden to the toxic effects of domestic policy?

We would argue that honesty is key to administering justice.

A Supreme Court judgeship is a lifetime appointment. And as Sen. Kirsten Gillibrand, D-N.Y., recently pointed out, members of the Supreme Court are asked to make dozens of decisions every year directly relating to the life, liberty, and happiness of Americans — half of whom are women, and all of whom deserve jurists who possess a baseline level of integrity.

As Blumenthal, the Connecticut senator, said at the Senate Judiciary Committee’s Friday meeting, Kavanaugh’s character and fitness give ample reason to vote “no.”

Top photo: Brett Kavanaugh is sworn in before testifying at the Senate Judiciary Committee on Sept. 27, 2018.

The post The Unbearable Dishonesty of Brett Kavanaugh appeared first on The Intercept.

Live: Christine Blasey Ford and Brett Kavanaugh Testify to the Senate Judiciary Committee

Brett Kavanaugh’s accuser, Christine Blasey Ford, testifies under oath to the Senate Judiciary Committee on Thursday morning in Washington, followed by Kavanaugh himself, in a hearing that could derail his nomination to the Supreme Court. For updates on the hearing, now streaming live by C-SPAN, refresh this page.

The Full Text of Christine Blasey Ford’s Prepared Statement

As we wait for the hearing to begin at the top of the hour, here is the complete text of Christine Blasey Ford’s opening statement, in which she says that Brett Kavanaugh sexually assaulted her at a party when she was fifteen and he was seventeen:

Chairman Grassley, Ranking Member Feinstein, members of the committee. My name is Christine Blasey Ford. I am a professor of psychology at Palo Alto University and a research psychologist at the Stanford University School of Medicine.

I was an undergraduate at the University of North Carolina and earned my degree in experimental psychology in 1988. I received a master’s degree in 1991 in clinical psychology from Pepperdine University. In 1996, I received a Ph.D. in educational psychology from the University of Southern California. I earned a master’s degree in epidemiology from the Stanford University School of Medicine in 2009.

I have been married to Russell Ford since 2002 and we have two children.

I am here today not because I want to be. I am terrified. I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school. I have described the events publicly before. I summarized them in my letter to Ranking Member Feinstein, and again in my letter to Chairman Grassley. I understand and appreciate the importance of your hearing from me directly about what happened to me and the impact it has had on my life and on my family.

I grew up in the suburbs of Washington, D.C. I attended the Holton-Arms School in Bethesda, Md., from 1980 to 1984. Holton-Arms is an all-girls school that opened in 1901. During my time at the school, girls at Holton-Arms frequently met and became friendly with boys from all-boys schools in the area, including Landon School, Georgetown Prep, Gonzaga high school, country clubs, and other places where kids and their families socialized. This is how I met Brett Kavanaugh, the boy who sexually assaulted me.

In my freshman and sophomore school years, when I was 14 and 15 years old, my group of friends intersected with Brett and his friends for a short period of time. I had been friendly with a classmate of Brett’s for a short time during my freshman year, and it was through that connection that I attended a number of parties that Brett also attended. We did not know each other well, but I knew him and he knew me. In the summer of 1982, like most summers, I spent almost every day at the Columbia Country Club in Chevy Chase, Md., swimming and practicing diving.

One evening that summer, after a day of swimming at the club, I attended a small gathering at a house in the Chevy Chase-Bethesda area. There were four boys I remember being there: Brett Kavanaugh, Mark Judge, P. J. Smyth, and one other boy whose name I cannot recall. I remember my friend Leland Ingham attending. I do not remember all of the details of how that gathering came together, but like many that summer, it was almost surely a spur of the moment gathering. I truly wish I could provide detailed answers to all of the questions that have been and will be asked about how I got to the party, where it took place and so forth. I don’t have all the answers, and I don’t remember as much as I would like to. But the details about that night that bring me here today are ones I will never forget. They have been seared into my memory and have haunted me episodically as an adult.

When I got to the small gathering, people were drinking beer in a small living room on the first floor of the house. I drank one beer that evening. Brett and Mark were visibly drunk. Early in the evening, I went up a narrow set of stairs leading from the living room to a second floor to use the bathroom. When I got to the top of the stairs, I was pushed from behind into a bedroom. I couldn’t see who pushed me. Brett and Mark came into the bedroom and locked the door behind them. There was music already playing in the bedroom. It was turned up louder by either Brett or Mark once we were in the room. I was pushed onto the bed and Brett got on top of me. He began running his hands over my body and grinding his hips into me. I yelled, hoping someone downstairs might hear me, and tried to get away from him, but his weight was heavy. Brett groped me and tried to take off my clothes. He had a hard time because he was so drunk, and because I was wearing a one-piece bathing suit under my clothes. I believed he was going to rape me. I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from screaming. This was what terrified me the most, and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me. Both Brett and Mark were drunkenly laughing during the attack. They both seemed to be having a good time. Mark was urging Brett on, although at times he told Brett to stop. A couple of times I made eye contact with Mark and thought he might try to help me, but he did not.

During this assault, Mark came over and jumped on the bed twice while Brett was on top of me. The last time he did this, we toppled over and Brett was no longer on top of me. I was able to get up and run out of the room. Directly across from the bedroom was a small bathroom. I ran inside the bathroom and locked the door. I heard Brett and Mark leave the bedroom laughing and loudly walk down the narrow stairs, pin-balling off the walls on the way down. I waited and when I did not hear them come back up the stairs, I left the bathroom, ran down the stairs, through the living room, and left the house. I remember being on the street and feeling an enormous sense of relief that I had escaped from the house and that Brett and Mark were not coming after me.

Brett’s assault on me drastically altered my life. For a very long time, I was too afraid and ashamed to tell anyone the details. I did not want to tell my parents that I, at age 15, was in a house without any parents present, drinking beer with boys. I tried to convince myself that because Brett did not rape me, I should be able to move on and just pretend that it had never happened. Over the years, I told very few friends that I had this traumatic experience. I told my husband before we were married that I had experienced a sexual assault. I had never told the details to anyone until May 2012, during a couples counseling session. The reason this came up in counseling is that my husband and I had completed an extensive remodel of our home, and I insisted on a second front door, an idea that he and others disagreed with and could not understand. In explaining why I wanted to have a second front door, I described the assault in detail. I recall saying that the boy who assaulted me could someday be on the U.S. Supreme Court and spoke a bit about his background. My husband recalls that I named my attacker as Brett Kavanaugh.

After that May 2012 therapy session, I did my best to suppress memories of the assault because recounting the details caused me to relive the experience, and caused panic attacks and anxiety. Occasionally, I would discuss the assault in individual therapy, but talking about it caused me to relive the trauma, so I tried not to think about it or discuss it. But over the years, I went through periods where I thought about Brett’s attack. I confided in some close friends that I had an experience with sexual assault. Occasionally, I stated that my assailant was a prominent lawyer or judge but I did not use his name. I do not recall each person I spoke to about Brett’s assault, and some friends have reminded me of these conversations since the publication of The Washington Post story on Sept. 16, 2018. But until July 2018, I had never named Mr. Kavanaugh as my attacker outside of therapy.

This all changed in early July 2018. I saw press reports stating that Brett Kavanaugh was on the “short list” of potential Supreme Court nominees. I thought it was my civic duty to relay the information I had about Mr. Kavanaugh’s conduct so that those considering his potential nomination would know about the assault.

On July 6, 2018, I had a sense of urgency to relay the information to the Senate and the president as soon as possible before a nominee was selected. I called my congressional representative and let her receptionist know that someone on the president’s short list had attacked me. I also sent a message to The Washington Post’s confidential tip line. I did not use my name, but I provided the names of Brett Kavanaugh and Mark Judge. I stated that Mr. Kavanaugh had assaulted me in the 1980s in Maryland. This was an extremely hard thing for me to do, but I felt I couldn’t NOT do it. Over the next two days, I told a couple of close friends on the beach in California that Mr. Kavanaugh had sexually assaulted me. I was conflicted about whether to speak out.

On July 9, 2018, I received a call from the office of Congresswoman Anna Eshoo after Mr. Kavanaugh had become the nominee. I met with her staff on July 11 and with her on July 13, describing the assault and discussing my fear about coming forward. Later, we discussed the possibility of sending a letter to Ranking Member Feinstein, who is one of my state’s senators, describing what occurred. My understanding is that Representative Eshoo’s office delivered a copy of my letter to Senator Feinstein’s office on July 30, 2018. The letter included my name, but requested that the letter be kept confidential.

My hope was that providing the information confidentially would be sufficient to allow the Senate to consider Mr. Kavanaugh’s serious misconduct without having to make myself, my family or anyone’s family vulnerable to the personal attacks and invasions of privacy we have faced since my name became public. In a letter on Aug. 31, 2018, Senator Feinstein wrote that she would not share the letter without my consent. I greatly appreciated this commitment. All sexual assault victims should be able to decide for themselves whether their private experience is made public.

As the hearing date got closer, I struggled with a terrible choice: Do I share the facts with the Senate and put myself and my family in the public spotlight? Or do I preserve our privacy and allow the Senate to make its decision on Mr. Kavanaugh’s nomination without knowing the full truth about his past behavior?

I agonized daily with this decision throughout August and early September 2018. The sense of duty that motivated me to reach out confidentially to The Washington Post, Representative Eshoo’s office, and Senator Feinstein’s office was always there, but my fears of the consequences of speaking out started to increase.

During August 2018, the press reported that Mr. Kavanaugh’s confirmation was virtually certain. His allies painted him as a champion of women’s rights and empowerment. I believed that if I came forward, my voice would be drowned out by a chorus of powerful supporters. By the time of the confirmation hearings, I had resigned myself to remaining quiet and letting the committee and the Senate make their decision without knowing what Mr. Kavanaugh had done to me.

Once the press started reporting on the existence of the letter I had sent to Senator Feinstein, I faced mounting pressure. Reporters appeared at my home and at my job demanding information about this letter, including in the presence of my graduate students. They called my boss and coworkers and left me many messages, making it clear that my name would inevitably be released to the media. I decided to speak out publicly to a journalist who had responded to the tip I had sent to The Washington Post and who had gained my trust. It was important to me to describe the details of the assault in my own words.

Since Sept. 16, the date of The Washington Post story, I have experienced an outpouring of support from people in every state of this country. Thousands of people who have had their lives dramatically altered by sexual violence have reached out to share their own experiences with me and have thanked me for coming forward. We have received tremendous support from friends and our community.

At the same time, my greatest fears have been realized — and the reality has been far worse than what I expected. My family and I have been the target of constant harassment and death threats. I have been called the most vile and hateful names imaginable. These messages, while far fewer than the expressions of support, have been terrifying to receive and have rocked me to my core. People have posted my personal information on the internet. This has resulted in additional emails, calls and threats. My family and I were forced to move out of our home. Since Sept. 16, my family and I have been living in various secure locales, with guards. This past Tuesday evening, my work email account was hacked and messages were sent out supposedly recanting my description of the sexual assault.

Apart from the assault itself, these last couple of weeks have been the hardest of my life. I have had to relive my trauma in front of the entire world, and have seen my life picked apart by people on television, in the media and in this body who have never met me or spoken with me. I have been accused of acting out of partisan political motives. Those who say that do not know me. I am a fiercely independent person and I am no one’s pawn. My motivation in coming forward was to provide the facts about how Mr. Kavanaugh’s actions have damaged my life, so that you can take that into serious consideration as you make your decision about how to proceed. It is not my responsibility to determine whether Mr. Kavanaugh deserves to sit on the Supreme Court. My responsibility is to tell the truth.

I understand that the majority has hired a professional prosecutor to ask me some questions, and I am committed to doing my very best to answer them. At the same time, because the committee members will be judging my credibility, I hope to be able to engage directly with each of you.

At this point, I will do my best to answer your questions.

Ahead of Hearing, New Accusations Prompt More Doubts

Christine Blasey Ford’s accusation, that Brett Kavanaugh and his friend Mark Judge assaulted her when they were students at Georgetown Prep, a Catholic high school outside Washington, is the focus of Thursday’s hearing, but the Senate is also considering the claims of three other women who came forward this week with accusations of sexual harassment or assault involving Donald Trump’s nominee for the Supreme Court.

On Sunday, Ronan Farrow and Jane Meyer of The New Yorker revealed that a Yale classmate of Kavanaugh’s, Deborah Ramirez, wanted the F.B.I. to investigate her accusation that Kavanaugh had exposed himself to her during a drunken dorm-room party.

On Wednesday, as my colleague Peter Maass reported, Michael Avenatti released a sworn declaration from a woman named Julie Swetnick, who said that that she had seen Kavanaugh and Judge “drink excessively and engage in highly inappropriate conduct, including being overly aggressive with girls and not taking ‘No’ for an answer. This conduct included the fondling and grabbing of girls without their consent.” Swetnick also accused Kavanaugh and Judge of spiking punch “with drugs and/or grain alcohol so as to cause girls to lose their inhibitions and their ability to say ‘No.” Kavanaugh and Judge, she said, were also present at a house party where she had been gang raped.

NBC reported on Wednesday that Kavanaugh was asked by Senate investigators about a fourth complaint, conveyed in an anonymous letter to Republican Senator Cory Gardner of Colorado, in whicha woman claimed that her daughter had witnessed Kavanaugh drunkenly assault a woman he socialized with in Washington in 1998, when he was a prosecutor for Ken Starr, the independent counsel who investigated President Bill Clinton’s sex life.

As news of the latest accusations broke on Wednesday, reporters observed “an intense conversation” in the Senate basement between Democratic Senator Dianne Feinstein and Republican Senator Lisa Murkowski, whose pro-choice stance makes her one of the potential swing votes against Kavanaugh, who has publicly criticized the Roe vs. Wade decision.

Top Photo: Dr. Christine Blasey Ford waiting to testify before the Senate Judiciary Committee in Washington on Thursday.

The post Live: Christine Blasey Ford and Brett Kavanaugh Testify to the Senate Judiciary Committee appeared first on The Intercept.

NSA Whistleblower Reality Winner Was Held in Isolation for a Week and No One Has Explained Why

National Security Agency whistleblower Reality Winner was kept in isolation for a week in a Florida county jail, a move that left her “hysterical,” according to an advocate who visited her in the facility. On Monday, Winner was moved from her isolated cell into the jail’s general population, according to advocates.

Charged under the Espionage Act and facing up to 10 years in prison, Winner, a 26-year-old former defense contractor and Air Force veteran, pleaded guilty in June to retaining and transmitting a document to a news organization. On her way to serve out the remainder of the five-year term spelled out in the plea deal, she was transferred in the middle of the night a week ago from the small rural county jail in Georgia where she has spent more than a year in custody. But, rather than being sent to a federal facility for processing, she was taken to yet another county jail in Florida for reasons that remain unclear.

At Baker County jail in Macclenny, Florida — a facility that also holds immigrant detainees for U.S. Immigration and Customs Enforcement — Winner was kept alone in what appeared to be a booking cell, according to the advocate who visited her, Wendy Meer.

“She’s having anxiety attacks. … It was just so detrimental to her health and made her feel like she was just thrown away.”

The isolation was particularly distressing for Winner who, just last month, received an endorsement from a federal judge to serve her remaining prison sentence at a federal medical facility to treat her mental illnesses, which she told a courtroom include depression and bulimia.

“She’s having anxiety attacks. She was having panic attacks, and she really had been doing so well not having those,” said Meer, an Air Force veteran and former defense contractor who often campaigns for Winner alongside her family. “It was just so detrimental to her health and made her feel like she was just thrown away.”

Winner’s mother, Billie Winner-Davis, said, “She had tried to get a hold of me frantically and when she finally did get a hold of me, yes, she was on the edge. She was so upset.”

The 63-month sentence Winner received in August after reaching a plea bargain with the government is, according to prosecutors, the longest handed down by a federal court to a journalist’s source charged under the Espionage Act. The law itself is a piece of World War I-era legislation used in recent years to send journalistic sources to prison even as comparable defendants get probation for “mishandling classified information.”

Winner was widely reported to be the source for a June 2016 article in The Intercept on an NSA report detailing phishing attacks by Russian military intelligence on local U.S. election officials. The Intercept received the document anonymously and has said that it does not know who sent it. (The Intercept’s parent company First Look Media has contributed to Winner’s legal defense fund since learning of her arrest.)

During her week at the Baker County jail, Winner received meals in Styrofoam boxes through her door, according to Meer, who added that Winner’s personal belongings, including her Bible, were taken away from her.

“None of us understand this. Why this type of facility? It was just the weirdest.”

Meer said that Winner’s family and advocates had no information on why she was held in isolation or whether a transportation issue prevented her from moving to her final prison placement after her sentencing in late August. “None of us understand this,” said Meer. “Why this type of facility? It was just the weirdest.”

The Baker County jail referred The Intercept to the U.S. Marshals for questions on Winner’s detention there. Lynzey Donahue, a spokesperson for the U.S. Marshals Service, said that “all we can do is verify that someone is in our custody,” declining to offer any comments on Winner’s current facility. Winner’s lawyers did not respond to a request for comment.

Though Baker County jail houses immigrants awaiting deportation on behalf of ICE — Meer said she was among a crowd of Spanish speakers during her visitation — Winner-Davis said that her daughter was not housed among immigration detainees when she was released from isolation Monday morning.

Instead of time outdoors for recreation — something important to her daughter, who prioritizes exercise to treat her “self-harming” tendencies — Winner-Davis said her recreation will include an hour of playing video games. “We celebrate the little things. This is like the Stockholm syndrome,” said Winner-Davis. “We are celebrating because she had apples this weekend. But if you think about it, she was in isolation in a cell.”

Top photo: Reality Winner walks out of a courthouse in Augusta, Ga., on Aug. 23, 2018, after being sentenced.

The post NSA Whistleblower Reality Winner Was Held in Isolation for a Week and No One Has Explained Why appeared first on The Intercept.

Trump’s Plan to Deny Green Cards to People on Medicaid or Food Stamps Is a Full-Blown Attack on the Immigrant Poor

FILE - In this Friday, March 17, 2017, file photo, a sign advertises a program that allows food stamp recipients to use their EBT cards to shop at a farmer's market in Topsham, Maine. A proposal to curtail the nation’s food stamp program would pinch families struggling to pay for groceries and ripple through other areas of the economy, including supermarkets and discounters. (AP Photo/Robert F. Bukaty, File)

A sign advertises a program that allows food stamp recipients to use their electronic benefit transfer cards to shop at a farmer’s market in Topsham, Maine, on March 17, 2017.

Photo: Robert F. Bukaty/AP

Over the weekend, the Trump administration announced new and cruel immigration rules. The rules will not produce the visceral horrors of caged children, but threaten to imperil the well-being — indeed, the lives — of thousands of immigrants in this country. The proposal, which does not need congressional approval, will make it harder for legal immigrants to obtain new visas or green cards if they use, or have used, public benefits, including food aid and Medicaid.

As with the draconian “zero-tolerance” policies President Donald Trump imposed on the border, the administration is presenting this latest assault as merely an extension and thorough application of existing legislation. But the proposal is one of the most radical overhauls in immigration standards in decades. It makes clear that, for this administration, immigration policy is a matter of white supremacist social engineering aimed at excluding and decimating poor, predominantly nonwhite immigrants. Even those who have followed every U.S. law — people here with full legal authorization, abiding by all criminal statutes — are now at risk for having used social services to which they are entitled.

The plan functions by dramatically expanding the category of “public charge,” a concept that has been a part of immigration determinations since 1882, when the Immigration Act enshrined the exclusion of “undesirables” as a tenet of U.S. immigration policy. If a person is a “public charge” or deemed likely to be a “public charge” by the immigration authorities, that person can be denied temporary visas and permanent resident status.

This restriction is not new and has always relied on problematic notions of undeserving immigrants draining American resources. That premise itself is belied by heaps of statistics showing that — in almost every way, whether economically, culturally, or socially — immigrants contribute dramatically more to American society than they draw from its resources.

Under the new rules, low-income immigrants may be forced to choose between public benefits and the ability to live and work in the U.S.

What has changed is the definition of a “public charge.” For decades, the classification has been narrow: Under current law, established since 1999, an immigrant is only a “public charge” if they receive most of their income from state assistance or live long term in an institution funded by the government. Health and food benefit programs like Medicare, Medicaid, and SNAP (formerly known as food stamps) have never before come into consideration.

Under the new rules, crafted by the impossibly villainous White House adviser Stephen Miller, low-income immigrants may be forced to choose between health care and food provisions, on the one hand, and the ability to live and work with authorization in the U.S., on the other. Current legal immigrants seeking change or renewal of immigration status, as well as those applying to move to the U.S. from abroad, will both be assessed for their potential to become “public charges” by these new, harsh standards.

The new system will thus punish individuals for making use of public benefits, even in the past, to which they were and are legally entitled, and never before would have disqualified them from remaining in the country.

“This is Trump’s new evil plan to keep separating families. He’s forcing parents to choose between keeping their children healthy or keeping their family together,” said Jess Morales Rocketto, political director for the National Domestic Workers Alliance. “He’s willing to risk a national health crisis and putting our children at risk of diseases and malnutrition just to attack immigrant parents. That’s how evil Trump is.” Latinx families, as well as disabled immigrants, are particularly vulnerable to the new rules.

“She didn’t apply for any of the benefits they are eligible to because she fears it will kill her only option to become a resident, so she has had to struggle even harder to support her kids on low-paying jobs.”

Morales told The Intercept that even though the proposal has not yet been put into effect, it is already functioning to scare immigrants out of seeking health and food assistance. “Like Laura, one of our leaders from Colorado, who recently got divorced and needed as much help she could get to start a new life with her three children,” Morales said. “She didn’t apply for any of the benefits they are eligible to because she fears it will kill her only option to become a resident, so she has had to struggle even harder to support her kids on low-paying jobs.”

Jackie Vimo, a policy analyst with the National Immigration Law Center, told The Intercept that the proposed rules have already begun working by spreading fear, even before official publication. “I am hearing stories of women returning breast pumps to WIC” — a public assistance program for women and infants — “and disenrolling from Medicaid for cancer treatments because they are worried these things could impact the green card application of a spouse, child, or other family member,” Vimo said in an email. “Early drafts of this proposal were leaked to the press in early 2017, and the rumors about the anticipated rule have spread fear in immigrant communities across the nation.”

The announcement of the new rule on the Department of Homeland Security website stated that it “promotes self-sufficiency and protects American taxpayers,” bartering in historically pernicious tropes about “welfare” and worthiness. Meanwhile, in the published draft of the proposal itself, the DHS admits that that the plan could promote, among other ills, “worse health outcomes, including increased prevalence of obesity and malnutrition, especially for pregnant or breastfeeding women, infants, or children,” “increased rates of housing instability,” and “increased poverty.”

There’s no inconsistency in the government citing these risks and trumpeting their plan nonetheless: Risks to the immigrant poor are a feature, not a bug. The knock-on negative effects to the citizen population — 10.4 million children who are citizens live with at least one immigrant parent — are secondary to an administration driven by white supremacy.

The announced proposal is less extreme than previous drafts, leaked earlier this year, which included even more benefits to count toward disqualifying “public charge” status and would have applied to the use of benefits like Medicaid and food stamps for U.S.-born children of immigrants. Previous drafts also sought to include current green card holders seeking citizenship or green card renewals. (Having myself relied on Medicaid for a short time as a green card holder, I can attest to the fear: These draft proposals induced panicked tears.) And while not everything on Miller’s wish list has made it to the final proposal, what remains will devastate the lives of tens of thousands of immigrants and their families.

DHS said that the proposed rules will be published in the Federal Register in “a few weeks,” at which point they will be open for public comment for 60 days. These comments will allegedly each be considered before the plan is implemented. As with the family separation policy, this proposal is deserving the utmost public opprobrium and resistance.

The history of the “public charge” category is a dark one; it is a malleable designation that has been long been molded to suit shifting iterations of racist immigration policy. As Neera Tanden, president of the Center for American Progress, noted in a statement, “It was abused in the past to keep out Jews fleeing Nazi Germany, Irish Catholics, LGBTQ people, people with disabilities, and unmarried women, among others.” Little wonder the Trump administration is deploying the same tool in its ongoing mission of ethnic cleansing.

The post Trump’s Plan to Deny Green Cards to People on Medicaid or Food Stamps Is a Full-Blown Attack on the Immigrant Poor appeared first on The Intercept.

American Dissident: Noam Chomsky on the State of the Empire

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The world laughed at U.S. President Donald Trump at the United Nations, but the imperial declarations he issued are no laughing matter. Trump may come off as a buffoon, but his global agenda is consistent with the bipartisan empire machine that runs the United States. This week on Intercepted: Famed dissident Noam Chomsky breaks down the Trump presidency; the defeat of the U.S. in Afghanistan; what he believes is a just position on Syria’s civil war; and the agenda of Vladimir Putin and Russia. He also discusses the impact of big social media companies and explains why a life of resisting and fighting is worth it. Jeremy Scahill analyzes Trump’s U.N. speech and gives context to the seldom-discussed bipartisan support for much of Trump’s global agenda. Dallas Hip Hop artist Bobby Sessions talks about police killings and this political moment. We also hear music from his new EP, “RLVTN (Chapter 1): The Divided States of AmeriKKKa.”

Transcript coming soon.

The post American Dissident: Noam Chomsky on the State of the Empire appeared first on The Intercept.

Trump Gets 100 Countries to Sign On to His U.N. Drug War Plan, Ignoring Changing Thinking on Human Rights and Legalization

The Trump administration announced last week that it would kick off the United Nations General Assembly with an event inviting member states to join a revamped U.S. war on drugs. On Monday, Donald Trump got his drug meeting — but not quite everyone signed on. Billed as a “Global Call to Action on the World Drug Problem,” the State Department said that 130 countries had agreed to a nonnegotiable text, but missing from that list were a number of key U.S. allies.

For the U.N. member countries, some realpolitik over dealing with the U.S. was involved, but analysts of international affairs and drug policy said that many governments chafed at the way the document and meeting were proposed — even if the U.S.’s powerful position at the world body meant that more than 100 countries signed up anyway.

“The U.S. is trying to lead us backwards now to the failed policies that led us here.”

“I think a lot of delegations, including a lot of delegations that ended up signing, found it entirely offensive that one country would take it upon itself with a few others, pronounce a text as nonnegotiable, and then pressure countries to sign up because they said so,” said John Walsh, director for drug policy and the Andes at the Washington Office on Latin America. Advocates like Walsh expressed concern at the substance of the U.S. program, as well. “The U.S. is trying to lead us backwards now to the failed policies that led us here,” he said.

Some U.S.-allied governments echoed those concerns, albeit in softer terms. Speaking to Norwegian TV, the country’s Foreign Minister Ine Eriksen Soreide said the call had “too little focus on the health side of drug policy,” explaining why Norway had turned it down like all the other Nordic countries. New Zealand’s Prime Minister Jacinda Ardern made similar remarks. Nigeria and Brazil were the largest countries to refrain, and Germany was the biggest in Europe to decline. Others who kept away included Uruguay, which has legal marijuana market, and South Africa, which days ago legalized private use of the drug. (Tens of millions of Americans live in states where marijuana is legal.)

As The Intercept reported last week, the Trump administration assembled a number of hard-line countries, including Russia, China, and Saudi Arabia, as partners before sending out the action plan to all member states. The Philippines — where President Rodrigo Duterte’s drug war has drawn international criticism for its extrajudicial killings and brutality — and Myanmar, whose government stands accused of genocide, were both included on the final list. Israel signed on, but its U.N. delegation did not attend, presumably to make it easier for other countries, such as those Arab nations who eschew formal relations with Israel, to appear.

“I’m thrilled that every country in the room today has agreed to answer our call, and I want to thank each and every one of you for your commitment to this important initiative,” said Trump.

The call, a departure from consensus drug policymaking at the U.N., was crafted around a “four-pronged” strategy — demand and supply reduction, treatment, and international cooperation. A Western diplomat whose government refused to sign on, and who requested anonymity to discuss a sensitive matter involving relations with the U.S., told The Intercept that their delegation resented the lack of consultations over language. The wording, the diplomat said, was reminiscent of that used prior to the General Assembly’s last special session on drugs, in 2016.

The outcome document of that special session, known as UNGASS, was split into seven thematic chapters that addressed some of the same concepts — international cooperation, as well as supply and demand reduction — as those found in Trump’s four prongs. But Trump’s approach does not contain specific progressive measures found in the 2016 document, for instance, a pillar on human rights or alternative development options for those who grow illicit crops, as well as a nod to access to controlled substances. (In many developing countries, the problem for millions suffering from terminal illness is not a surfeit of drugs, but a complete lack of affordable painkillers.) Advocates and U.N. member states who want to change drug policies lamented the absence of these elements in both UNGASS and the new Trump plan.

“Drugs are [being] seen in this as an illegal thing — a problem thing, a crime thing — and in our country we see it as a health thing.”

“Drugs are [being] seen in this as an illegal thing — a problem thing, a crime thing — and in our country we see it as a health thing,” a Dutch official, who asked for anonymity to discuss diplomatic matters, told The Intercept, explaining their country’s decision to forgo Trump’s meeting. “In our country we try to prevent it, and we don’t believe in the way it’s being proposed by this text. We don’t want to criminalize it as it is done in this text.”

Others were more diplomatic. “Sweden shares the concern on the importance of the fight against narcotics, but on this occasion we were unfortunately unable to attend,” said a spokesperson at the country’s U.N. Mission.

Though easier for wealthier countries to spurn, Trump’s call was signed by dozens of smaller countries, ranging from the Comoros and Togo, to the recently renamed eSwatini. Policy advocates had held out hope that Mexico and Canada — in the process of legalizing marijuana nationally — would hold off, but they too were additions to the State Department list.

The practical result for countries that signed on to the U.S. plan still isn’t entirely clear — nor what awaits those that didn’t. Over the last two years, member states have consistently been threatened by U.S. Ambassador Nikki Haley if they don’t act in the U.S.’s perceived interests. “I’m taking names,” she said last year. Last week, previewing Trump’s General Assembly speech, Haley said, “While the U.S. is generous, we are going to be generous to those that share our values, generous to those who want to work with us, and not those that try to stop the United States or say they hate America or are counterproductive to what we’re doing.”

As Walsh, of the Washington Office on Latin America, and three colleagues pointed out this weekend, the U.S. has weapons to punish member states at its disposal — including the annual U.S. drug “certification process,” which evaluates countries’ commitment to fighting drugs, and ongoing trade negotiations. On Monday, Haley offered more clarity on what the U.S. expected. “It wasn’t just a bunch of people getting into a room,” she told reporters at the U.S. Mission, alongside Secretary of State Mike Pompeo and national security adviser John Bolton. Every country that came, she noted, had to sign on, and each would “implement something within their own countries that dealt with how they were going to deal with the supply and demand of drugs.”

“Within the United States, President Trump is leading a massive and effective counterattack against it,” said Haley. “It’s now time for every country to follow our lead.”

Other policy experts said they didn’t believe as much would come from the call. “There’s nothing in the Trump statement, as far as I can see, that negates the 2016 UNGASS outcome document for signatories,” said John Collins, executive director at the London School of Economics International Drug Policy Unit. “I suspect there may simply be a lack of strategy or even understanding within the administration of the implications of their ‘four-pronged strategy.’”

“Attempts to eradicate drug supply and use through prohibition-based repressive measures against people who use drugs have proved expensive and counterproductive for more than 50 years.”

In a statement, the Global Commission on Drug Policy said the call to action “signals the continuation of inefficient, costly and harmful policies.” On the same day as Trump’s event, the Global Commission released a report outlining regulation as a responsible means of controlling narcotics. One of the panel’s members is former Colombian President César Gaviria, who led the country through the deadliest years in its modern history during the early 1990s, when civil war and drug-fueled violence saw homicide rates skyrocket.

“Attempts to eradicate drug supply and use through prohibition-based repressive measures against people who use drugs have proved expensive and counterproductive for more than 50 years,” said the Commission. “The U.S. government, which tried and abandoned alcohol prohibition, and now faces an unprecedented opioid crisis, should know better than anyone.”

In New York, Trump lauded Colombia’s new right-wing president, Ivan Duque, who Trump said “campaigned on an anti-drug platform, and won a very, very impressive victory. Congratulations. We look forward to partnering with his new administration to eradicate coca production in his country.” According to a list provided by the U.S. mission, Colombia was the very first country to sign Trump’s call.

Top photo: President Trump attends a meeting on the global drug problem at the United Nations with UN Ambassador Nikki Haley, ahead of the official opening of the 73rd United Nations General Assembly on Sept. 24, 2018 in New York City.

The post Trump Gets 100 Countries to Sign On to His U.N. Drug War Plan, Ignoring Changing Thinking on Human Rights and Legalization appeared first on The Intercept.

An Untold Number of Indigenous Children Disappeared at U.S. Boarding Schools. Tribal Nations Are Raising the Stakes in Search of Answers.

When Yufna Soldier Wolf was a kid, she was made well aware of why her family members only spoke English, and why they dressed the way they did. Her grandfather and other elders used to recount their experiences at boarding schools, where the government sent hundreds of thousands of Indigenous children, from nearly every Indigenous nation within U.S. borders, to unlearn their languages and cultures. “A lot of them were physically abused, verbally abused, sexually abused,” she said.

At the center of the stories were the children who never came home from the Carlisle Indian Industrial School, where her grandfather was a student. “My grandpa used to say, ‘Don’t forget these children. Don’t forget my brother — he’s still buried there,’” Soldier Wolf said. She promised that she would remember.

The school, which opened in 1879 in Carlisle, Pennsylvania, and closed its doors 100 years ago this month, was the United States’ most notorious Indian boarding school and the starting point for more than a century of child removal policies that continue to tear apart Indigenous families today. Carlisle, and hundreds of federally funded boarding schools like it, were key to the U.S. government’s project of destroying Indigenous nations and indoctrinating children with military discipline and U.S. patriotism.

It was Soldier Wolf’s closeness to her family and their stories of abuse at the school that inspired her to become the Northern Arapaho tribal historic preservation officer and work on the return of the children lost at Carlisle.

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Yufna Soldier Wolf, center, Mark Soldier Wolf, left, and Crawford White Sr. hold pictures of the three Northern Arapaho children buried at the Carlisle Indian School during a meeting to negotiate repatriating the remains of 10 children on the Rosebud Reservation in Rosebud, S.D.

Photo: Charles Fox/The Philadelphia Inquirer via AP

In June, after about a decade of back-and-forth with the U.S. Army, which owns the Carlisle property, Soldier Wolf stood present as Little Plume, the last of three Northern Arapaho children buried there, was exhumed and sent back to the Wind River Reservation in Wyoming. The remains of two others, 14-year-old Horse and 15-year-old Little Chief, Soldier Wolf’s great uncle, had been returned the previous August.

The Northern Arapaho Tribe is the first to succeed in bringing home children interred at Carlisle’s military cemeteries — but it won’t be the last, and Carlisle is only the tip of the iceberg.

A coalition of Indigenous organizations — including the National Congress of American Indians, which represents 250 Indigenous nations, the International Indian Treaty Council, the Native American Rights Fund, and the National Native American Boarding School Healing Coalition — has turned to the United Nations to demand that the U.S. government “provide a full accounting of the children taken into government custody under the U.S. Indian Boarding School Policy whose fate and whereabouts remain unknown.”

After unsuccessful attempts to obtain such information directly through Freedom of Information Act requests to the U.S. Bureau of Indian Education, the coalition members hope that pressure from the U.N. Working Group on Enforced or Involuntary Disappearances will make the difference. An appeal could require the U.S. to report on the statuses of missing Native boarding school children every six months.

“Our greatest hope is to start to raise awareness about this part of American history, but also to get some acknowledgement and accountability from the U.S. government,” said Christine Diindiisi McCleave, executive officer for the Boarding School Healing Coalition. “The fact that they haven’t willingly done that is disrespectful and a human rights violation.”

The Interior Department, which oversees the Bureau of Indian Education, did not respond to a request for comment.

Those pushing for the U.N. filing and the return of children’s remains acknowledge that it’s only a beginning — a full accounting of Carlisle’s legacy would mean reforming child welfare systems that continue to separate Native children from the land and their communities. Although Carlisle and the boarding schools like it have closed, child removal is an enduring reality for many Native families and their nations. “It’s always worked for colonizers worldwide, you take the children and you break the family tie,” said Madonna Thunder Hawk, a boarding school survivor who now works for the Lakota People’s Law Project advocating Indian child welfare reform in South Dakota. “If we’re fighting for the land, we’re also fighting for our future,” Thunder Hawk said of her community in Cheyenne River. “Who is going to be on the land? We’ve got to keep our children.”

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Carlisle’s founder, Richard Henry Pratt, seated center on the bandstand, with a group of Navajo students upon their arrival at the school on Oct. 21, 1882.

Photo: John N. Choate via Carlisle Indian School Digital Resource Center

“Kill the Indian, Save the Man”

For Carlisle’s founder, Richard Henry Pratt, an Indian fighter who once served with George Armstrong Custer, the boarding school was another battlefront of the Indian wars. Pratt devised the school’s curriculum of “kill the Indian, save the man” from his experiments in forced education on Cheyenne, Caddo, Arapaho, Kiowa, and Comanche prisoners of war at Fort Marion, Florida, in the early 1870s. The prison experiments impressed Indian reformers in Congress, who authorized the Bureau of Indian Affairs to take control of the Carlisle Barracks to build the nation’s first off-reservation boarding school.

As Pratt assembled Carlisle’s first class of students, Commissioner of Indian Affairs Ezra Hayt ordered him to take children from the Lakotas because of their “hostile attitude toward the government.” Hayt hoped to pressure the Lakotas, and other western Indigenous nations, into opening millions of acres of treaty-protected territory for white settlement. “The children would be hostages for the good behavior of their people,” wrote Pratt of his first Carlisle recruitment mission at the Rosebud and Pine Ridge agencies in Dakota Territory.

From the 1880s through the 1920s, conditions at boarding schools were especially terrible — and deadly. “Routinely, you have students begging for clothes and food,” said Preston McBride, a University of California, Los Angeles Ph.D. candidate working on a dissertation about health conditions in the schools. “There were students sharing spoons and cups in dining halls, sharing bath water,” he added. “Once a disease hit, it rapidly spread.”

The schools tended to send sick kids back to their families — many died en route or within days of arriving home. When students did die in the schools, McBride said, records show that at times the area Indian agent, rather than the family, was informed of the death. Runaways were common, and for children thousands of miles from home, finding their way back would have been practically impossible.

Indeed, determining exactly how many children might have disappeared after they were sent to boarding school is no simple task. “It’s really hard to give an estimate to anything related to boarding schools — because the government doesn’t even know how many children went through them,” McBride said. He estimates those who disappeared number in the thousands.

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A second-grade classroom at the Carlisle Indian School, circa 1902.

Photo: Carlisle Indian School Digital Resource Center

From Boarding School to Foster Care

Thirty-five years after Carlisle closed, when Sandy White Hawk was 18 months old, she was adopted out to a white missionary family who promised to “save” her from a life of poverty and abuse on the Rosebud Reservation, where she was born. White Hawk did not escape either in her adopted family, and the problems were compounded by a deeper sense of loss over who she was as an Indigenous person.

White Hawk compares her experience as an adoptee to that of her brother, who was sent away to boarding school. “Adoption and boarding schools were about stripping Native people of who they were,” she said. Throughout the 20th century, the two worked in tandem.

After World War II, social workers picked up where boarding schools like Carlisle left off, placing children into state foster care or adopting them into white families. The child sweeps dovetailed with federal termination policy, which aimed to assert state jurisdiction over Native lands and relocate Native people off-reservation. In 1957, Utah Republican Sen. Arthur V. Watkins, a termination advocate, characterized the approach as a “freeing of the Indians from special federal restrictions on the property and the person of the tribes and their members,” which held them back from “the full realization of their national citizenship.”

Once relocated to cities and enrolled in public schools, families came under increased surveillance by state officials and children once again became targets for removal. The practice became so routine that by the early 1970s, according to a report by the Association on American Indian Affairs, more than a quarter of Native children nationwide had been taken from their families. As Amy Lonetree, a history professor at the University of California, Santa Cruz, put it, “Every single Indigenous family in the post-World War II era lived with the threat of child removal.”

The practice was particularly acute in states like Minnesota, and today, it has hardly subsided. “We have the highest rate of Indigenous child removal in the United States,” White Hawk, now an Indian child welfare advocate living in Minnesota, said of the state’s foster care system. In 2016, the Star Tribune reported that although Native children made up less than 2 percent of Minnesota’s population, they accounted for a quarter of children in foster care.

Advocates like White Hawk say that while healing from the past is important, stopping contemporary forms of Indigenous family separation is just as urgent. In recent years, the Goldwater Institute, a powerful libertarian think tank based in Phoenix, has led multiple legal attacks on the Indian Child Welfare Act of 1978, charging that the legislation — which requires judges and social workers to preserve Native families when possible — does not ensure equal protection under the law because it is based on “race.” ICWA, however, was established to protect children who are members of tribes or whose biological parents are members of tribes in an effort to combat the history of places like Carlisle and the role foster care and adoption agencies play in continuing to remove Native children from their families.

To White Hawk, keeping Native families together today is also about shifting resources from the foster care system to affordable housing, especially in cities like Minneapolis, which is experiencing a housing shortage. “We have always known what we need, but we have not had resources,” she said. Instead of providing effective housing assistance to keep Native families together, the state’s money goes into the foster care system. “It’s a shame that money would go to a stranger to foster an Indian child and not to preserve the Indian family, which is the heart of ICWA.” According to state statutes, Minnesota foster parents can earn anywhere from $650 to $2,410 per child per month, depending on the number of children under their care and a child’s special needs.

ADVANCE FOR WEEKEND EDITIONS - In this March 1, 2016 photo, Yufna Soldier Wolf wipes away tears while kneeling at the grave of her great-grandfather, Chief Sharp Nose of the Northern Arapaho Tribe, at the family cemetery on the Wind River Reservation near Riverton, Wyo. Soldier Wolf is seeking the remains of her great-uncle Little Chief, who died while attending Carlisle Indian School in Carlisle, Pennsylvania. (Dan Cepeda/The Casper Star-Tribune via AP) MANDATORY CREDIT

Soldier Wolf wipes away tears at the grave of her great-grandfather, Chief Sharp Nose of the Northern Arapaho Tribe, at the family cemetery on the Wind River Reservation near Riverton, Wyo.

Photo: Dan Cepeda/The Casper Star-Tribune via AP

Fighting Back

In the face of Carlisle’s sweeping legacy, returning some of the children who were taken is a remarkably arduous small step. There is a lack of legal clarity around whether the Native American Graves Protection and Repatriation Act of 1990, which governs the return of property or human remains to Native communities, could be successfully applied to a military institution like Carlisle. So far, only individual descendants, not Indigenous nations, have attempted to appeal for the return of Carlisle students’ remains. Nations interested in bringing home children have to track down individual family members — a huge problem for kids who entered the boarding school as orphans.

McBride acknowledged that no investigation could give a complete account of all the missing children, because records are so inconsistent. But if researchers were able to access the voluminous material that does exist, archived by the federal government and individual schools, they could help bring closure to some families and communities — and obtain important official acknowledgement of the system of child removals that forms a key piece of the nation’s foundation.

According to Andrea Carmen, the executive director of the International Indian Treaty Council, the U.S. government’s failure to account for missing Native boarding school children is “an ongoing human rights violation under international law.” The organizations are currently assembling the U.N. submission, which will include testimony from tribes and individuals whose children were lost.

After the children buried at Carlisle came home, Soldier Wolf resigned her position as the Northern Arapaho tribal historic preservation officer. “I felt I’ve run this path,” she said. The return of her relative Little Chief was more than a gesture to her grandfather; it was about offering her own children a different set of possibilities that didn’t include “this sad story of we never got our uncle back,” she said. “Because we got him back.”

Top photo: The student body of the Carlisle Indian School in 1892.

The post An Untold Number of Indigenous Children Disappeared at U.S. Boarding Schools. Tribal Nations Are Raising the Stakes in Search of Answers. appeared first on The Intercept.

Accused Torturer Jon Burge Died Last Week, but His Legacy of Brutal, Racist Policing Lives on in Chicago

The last few years have drawn increased attention to police brutality and racism across the United States. But racist police torture isn’t usually part of that discussion — unless you’ve paid attention to the saga of Jon Burge in Chicago. A former police commander, Burge was indicted in 2008 on perjury and obstruction of justice charges related to a civil case involving the torture of mostly black suspects in police custody from 1972 to 1991.

The indictment came several years after the U.S. military was revealed to have tortured detainees in Iraq, most infamously at Abu Ghraib. The Iraq charges were abhorrent, clearly war crimes. Yet I remember the stories feeling far-off at the time. Burge, however, was indicted for torturing people here, in an American metropolis that I called home — and not just once, but repeatedly; not briefly, but across nearly two decades.

Upon his death, Burge had served slightly less than four-and-a-half years in prison for charges related to torture.

Burge died last week at the age of 70 at his home in Florida, where he has spent most of his time since his firing from the Chicago Police Department in 1993 and often spent time on his boat, the “Vigilante.” Upon his death, Burge had served slightly less than 4 1/2 years in prison for charges related to torture. Meanwhile, the city of Chicago and state of Illinois spent well over $100 million on the various settlements, reparations fees, and legal defense for Burge and his associates. An unknown number of black men — perhaps over 200 — were subject to searing physical and emotional pain from Burge’s actions.

The late commander’s crimes are still shocking to assess. But those crimes also must be seen as of a piece with a broader culture of brutality and racism in the Chicago Police Department. Burge’s death came just days into the trial of a white Chicago police officer for the murder of 17-year-old black teenager Laquan McDonald and in the wake of a 2017 Department of Justice probe that found the Chicago police regularly using excessive and deadly force, and tolerating racist policing practices.

Burge is now gone. But Chicago will be dealing with the fallout of his actions for generations to come. The broader culture of racism and brutality that he was at the helm of in the Chicago Police Department appears to be firmly intact.

Anthony Holmes, left, and Darrell Cannon, victims of torture by the former Police Commander Jon Burge, speak at a news conference in Chicago, Monday, Aug. 28, 2017, where it was announced that Chicago Public Schools students will be taught about the police torture scandal that has dogged the city and the police department. Monday's announcement comes more than two years after the City Council approved an ordinance that called for the city to pay $5.5 million in reparations to the African-American victims of torture at the hands of Burge and his detectives. Listening at right is Chicago Public Schools CEO Forrest Claypool. (James Foster/Chicago Sun-Times via AP)

Anthony Holmes, left, and Darrell Cannon, victims of torture by the former Police Commander Jon Burge, speak at a news conference in Chicago on Aug. 28, 2017, where it was announced that Chicago Public Schools students will be taught about the police torture scandal that has dogged the city and the police department.

Photo: James Foster/Chicago Sun-Times via AP

Burge’s crimes were broken wide open by John Conroy, who reported the story in the Chicago Reader, an alt-weekly. The 1990 article, “House of Screams,” tells the story of a suspect named Andrew Wilson and his brother Jackie, who were both accused and later convicted of killing two police officers. Andrew Wilson told the Reader he was subject to, in Conroy’s words “burns and electric shock, the shock delivered by two different devices to his genitals, his ears, his nose, and his fingers” while being interrogated by officers under Burge’s command. Accusations from other victims reported by Conroy ranged similar shocks to beatings to officers putting plastic bags over suspects’ heads; there were stories of burns from cigarettes and radiators that individuals in police custody were chained to.

The allegations came out shortly after Burge was first taken to civil court in 1989 by the People’s Law Office, a Chicago civil rights practice that would come to represent many of Burge’s torture victims from that point on. One attorney, Flint Taylor, has written extensively about Burge’s crimes in recent years. (I was often his editor at In These Times, where he wrote many such reflections.) He described an “unremitting official cover-up that has implicated a series of police superintendents, numerous prosecutors, more than 30 police detectives and supervisors, and, most notably, Richard M. Daley,” the city’s former longtime mayor and a previous state’s attorney. The revelations came to Taylor and his partners in part through multiple anonymous sources who worked with Burge, including one who left anonymous voicemails who they took to calling “Deep Badge.”

After appealing the verdict against Andrew Wilson in a torture case he brought against Burge, the People’s Law Office’s compiled evidence was enough to convince the police to reopen its Wilson investigation, as well as a broader probe into Burge’s torture. He was brought before the Chicago Police Board in 1992. By that time, the city’s police union had come to his defense. A fundraiser organized for Burge at a local union hall drew 3,000 people.

More victims were coming with accusations of mock executions, sticking a gun in a suspect’s mouth, and the use of a cattle prod, sometimes on a suspect’s genitals.

More victims, however, were coming forward with accusations: among them, mock executions through Russian roulette, sticking a gun in a suspect’s mouth, and the use of a cattle prod, sometimes on a suspect’s genitals. Taylor claims they documented 118 such cases.

“I still have nightmares. I still go through sweats,” Anthony Holmes, who said he was shocked and suffocated while called a racist epithet by Burge in the 1970s, stated on a local NPR station in 2015. “I faced my demon,” he said of testifying against Burge.

Burge was suspended from the police department in 1991. But he continued to collect a pension from the city. Cases against him wended their way through the courts over the years; while the statute of limitations had run out to charge Burge with torture, he could be charged with perjury and obstruction of justice. He was convicted in 2010 and, eventually, released early for good behavior.

In 2006, Conroy reported about a group of alleged torture victims who sought to move their cases out of the county judiciary because the bench was dotted with police veterans and those who had worked the cases involving torture in the first place. In 2016, reporter Maya Dukmasova paraphrased Conroy’s description of the close associations between the judiciary and the police as a system where “people who were complicit in CPD torture made their way up into the ranks of the judiciary.”

The damage wrought by Burge’s torture is wide and deep: over $100 million in brutality settlements; $5.5 million won by activists for a reparations fund for victims and their families (as well as a mandatory curriculum for Chicago public school students to learn about Burge’s legacy of torture); and, most importantly, those individuals who were tortured — indelibly scarred by the torture itself.

The Chicago City Council votes on a $5.5 million fund to compensate victims of police torture, Wednesday, May 6, 2015, in Chicago. The "reparations" package approved Wednesday, would pay up to $100,000 each to dozens of men who claimed they were tortured by the detective crew of notorious former police commander Jon Burge. Some victims spent decades in prison after confessing to crimes they did not commit. (AP Photo/Charles Rex Arbogast)

The Chicago City Council votes on a $5.5 million fund to compensate victims of police torture on May 6, 2015, in Chicago. The “reparations” package would pay up to $100,000 each to dozens of men who claimed that they were tortured by the detective crew of notorious former Police Commander Jon Burge.

Photo: Charles Rex Arbogast/AP

The story of Burge’s torture is unique because it stretched almost two decades and involved barbaric methods rarely seen on U.S. soil in modern times. But it was not the end of police brutality and racism in Chicago — nor, according to federal investigators, was that racism and brutality isolated to Burge’s command.

Take Chicago police misconduct cases, which are constant and massively expensive. From January 2005 through June 2008, the city of Chicago paid about $230 million in police misconduct settlements and judgements — more, as reporter Mick Dumke put it, “than LA, Houston, Phoenix, Philly, and Dallas put together.” Those numbers included torture payouts, but more recent settlements are still enormous: Payments for misconduct cases plus lawyers’ fees cost the city $371 million from 2011 to 2016.

An Intercept investigation in October 2016 detailed a Chicago police tactical gang unit’s alleged “protection racket” that charged favored drug dealers for impunity and went after their competition. The police became players in the drug trade and were rumored to have murdered two drug dealers who wouldn’t play ball — then retaliated against two whistleblower officers, showing, in the words of a judge, “extraordinarily serious retaliatory misconduct by officers at nearly all levels of the CPD hierarchy.”

Investigations by The Guardian in 2015 revealed a Chicago police “equivalent of a CIA black site” — a clandestine and unaccountable detention facility — at which more than 7,000 arrestees were taken, nearly 6,000 of whom were black. The detainees would disappear for up to 24 hours at a time, sometimes allegedly suffering beatings by officers.

And then there is the case of Jason Van Dyke, the police officer who shot Laquan McDonald 16 times. Like Burge’s operation, the Van Dyke shooting appears to have led to a massive cover-up. Officers on the scene blatantly lied in multiple aspects of their accounts of the incident. Chicago police leadership reviewed the dashcam footage of the scene and approved the obviously false officer reports. City officials refused to release the video of the shooting for over a year.

The shooting took place in October 2014, as Mayor Rahm Emanuel’s February 2015 re-election campaign was heating up. The city fought to keep the footage out of the public eye for as long as possible and only brought charges against Van Dyke a few hours before the video was released.

In 2008, newly elected State’s Attorney Anita Alvarez pledged to ensure a grand injustice like Burge’s torture scandal would never happen again. Eight years later, she lost her re-election by a nearly 30-point spread amid a general perception that her office had aided in the McDonald cover-up. The same year, a Police Accountability Task Force released a report about the nature and ubiquity of Chicago police abuse against black and Latino Chicagoans, the conclusions of which were almost identical to a similar report produced in 1972. Despite repeated calls for reform of the Chicago Police Department, nothing ever seems to change.

Jon Burge’s years of torture were a horror. But he was always a particularly morbid symptom of a much larger problem of racism and brutality among Chicago cops. Burge may be dead, but the police culture that allowed him to operate for nearly two decades is not.

Top photo: Suspended Chicago Police Commander Jon Burge speaks with the media after his first day in court on Feb. 10, 1992.

The post Accused Torturer Jon Burge Died Last Week, but His Legacy of Brutal, Racist Policing Lives on in Chicago appeared first on The Intercept.

Prosecuting Parents–And Separating Families–Was Meant to Deter Migration, Signed Memo Confirms

On April 23, the heads of the three major immigration agencies wrote to their boss, Secretary of Homeland Security Kirstjen Nielsen, to present her with three options for how to step up immigration enforcement at the border. They recommended “Option 3” — prosecuting every adult who crossed the border illegally, including those who came with their children — because it would “have the greatest impact on current flows.”

In other words, top immigration officials believed that prosecuting parents, even if it meant separating families, would deter migration. Following their recommendation, Nielsen signed off on “Option 3,” authorizing one of the darkest dramas in the Trump administration’s attempt to remake the U.S. immigration system, resulting in thousands of families ripped apart, hundreds of parents deported alone, and children scattered in shelters across the country.

Despite the fact that the memo makes clear that “Option 3″ would involve family separation, Nielsen for months maintained publicly that “this administration did not create a policy of separating families at the border” and avoided saying that the goal of the newly aggressive prosecutions was deterrence.

The memo and other communications on family separation were released in redacted form through a Freedom of Information Act lawsuit brought by the watchdog groups Open the Government and Project on Government Oversight and were shared with The Intercept; the groups also obtained an unredacted copy of the memo, which, at the request of their sources, is not being published. It appears to be the same document reported on, but not published, by the Washington Post in April, before Nielsen added her signature. (The signature itself is redacted, but a spokesperson for the Department of Homeland Security confirmed that it is Nielsen’s.)

In a statement, POGO and Open the Government noted that “the memo does not discuss any plan for reuniting separated families, or the harmful effects of separation on children, nor does it reflect any input from the government agencies who would be responsible for caring for the separated children.” They added that there is more to be learned about the decision-making behind the administration’s actions this spring and summer: “The records point to new important documents, such as a legal analysis of the family separation policy, which remains shielded from the public and from Congress.” The groups also plan to challenge the redactions on the released documents.

“The American public deserves to know what our government has been thinking in terms of how to carry out these extremely devastating policies.”

“This is part of a story to be told here about the humanitarian travesty,” said Emily Creighton, deputy legal director at the American Immigration Council, which is also seeking documents related to family separation. “I think the American public deserves to know what our government has been thinking in terms of how to carry out these extremely devastating policies.”

The Trump administration’s “zero tolerance” immigration policy, which meant trying to prosecute every single person who crossed the border illegally, was enshrined in an April 6 executive order and in guidance from Attorney General Jeff Sessions. In response, the April 23 memo said the immigration agencies could either take a “scalable approach” to curbing illegal entry to the U.S., broadly increasing referrals for prosecution, or they could more systematically refer all single adults for prosecution. But going after single adults would create “the potential for an increase in fraudulent/fictitious” groups presenting as families, the memo cautioned, reflecting a longstanding narrative among immigration authorities that migrants use or even traffic children to avoid detention (a phenomenon whose significance is disputed by outside experts). “DHS could also permissibly direct the separation of parents or legal guardians and minors held in immigration detention so that the parent or legal guardian can be prosecuted,” the memo stated.

And so, the heads of U.S. Citizenship and Immigration Services, Customs and Border Protection, and Immigration and Customs Enforcement landed on the recommendation to prosecute adults with children, too, because it “would likely have the most effective impact” and be “the most effective method” of achieving the “administration’s goal of ending ‘catch and release,’” the memo said, deploying the term used by critics of the long-standing policy of allowing individuals, typically mothers and their children, to be released on bond while awaiting their immigration hearings.

The officials who wrote the memo admitted that the approach had the drawback of “requiring significant resources and presenting increased legal risk” — an understatement, given the public outcry and bevy of legal challenges that occurred once reports of families being separated hit the press.

Many observers have pointed out that the Trump administration’s crisis at the border — the chaos of family separation, the overloading of immigration courts — is one of its own making, the result of a decision to prosecute each and every person illegally entering the U.S. The memo provides a window into the administration’s attempt to rationalize “zero tolerance” with misleading statistics. It frames the policy as a response to a jump in the number of migrant families crossing the U.S.-Mexico border this past spring. But the spike described in the memo is relative to a pronounced dip last year; when the number of border crossings in 2018 is compared with the number in other recent years, it ceases to look remarkable. In fact, border crossings have been on a general downward trend for the last two decades.

The memo also cites a trial period of family separation in El Paso, Texas, from July to November 2017, claiming that it led to a 64 percent decrease in families crossing the border illegally — a statistic that Vox’s Dara Lind has debunked. And it uses the historic arrival of thousands of Central American children in 2014 as an example of the difficulty in deporting adults who arrive with children — ignoring the fact that many of those people may have had legitimate asylum claims or other avenues to stay in the country, notes Katherine Hawkins, an investigator with POGO.

ICE was deporting other families speedily to make room in their facilities for newer arrivals.

Beyond the DHS family separation memo, other documents obtained by POGO and Open the Government include an email sent to Border Patrol chiefs and deputies in July, after judges had intervened against family separation and ordered the government to reunite children with their parents. The email says that thanks to the judge’s order, ICE needed space at family detention facilities in order to reunite families, and so they were “in the process of repatriating as many FMUAs as possible to make space.” (The acronym stands for “Family Unit Aliens,” and is immigration authorities’ shorthand for children apprehended with one or more parent or guardian.)

The acknowledgement that ICE was deporting other families speedily to make room in their facilities for newer arrivals raises concerns about whether the agencies infringed migrants’ right to due process, says Creighton of the American Immigration Council. “Here, you have another inhumane policy introduced in order to address the other inhumane policy,” she said.

Trump ended family separation by executive order on June 20, and the court-ordered reunification process continues. In the meantime, the administration has moved forward with new regulations that would supersede the Flores agreement, a federal consent decree dating back to 1997 that limits the detention of migrant children. If approved by a judge, the regulations will allow immigration authorities to hold families with children for longer and in a greater variety of facilities. They represent a major push toward the administration’s goal of mitigating the public outrage over family separation while expanding family detention.

Top photo: Seven-year-old Andy is reunited with his mother, Arely, at Baltimore-Washington International Airport in Linthicum, Md, on July 23, 2018.

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Undocumented Immigrant Faces a Choice: Become an Informant for ICE or Be Deported

It was still dark on a crisp morning in March 2017 when Carlos Rueda Cruz clambered into his Toyota Tacoma pickup truck to go to work. He turned the key in the ignition and pulled around the corner to pick up his friend, who worked for the same roofing company in Sacramento, California. Carlos made it three blocks before he saw the flashing lights in his rearview mirror. He pulled over near an Arco gas station. “They better just give you a ticket,” the friend joked.

The police approached with guns cocked, Carlos said. They shouted for him to put his hands in the air. As Carlos stepped out of his truck, he noticed five law enforcement vehicles surrounding him. The police started asking questions: Where are you going? Are you carrying any drugs or weapons? Why are you here?

Carlos recalled another time when he’d been pulled over by men with guns, three years earlier, in his home province of Michoacán, Mexico. That time, it was by members of a drug cartel. Carlos and his family had handed out flyers for the leftist Mexican Party of the Democratic Revolution, known by its Spanish-language acronym PRD, during the 2012 and 2014 elections. At the time, local cartels — most notably, Los Zetas and La Familia — frequently intimidated voters into supporting the party they favored. The armed men asked Carlos which party he was voting for. Carlos replied that he hadn’t decided yet. The men threatened to kill him unless he voted for the conservative Institutional Revolutionary Party, or PRI; ultimately, they let him go. Afterward, Carlos faced a fundamental question: change my political beliefs, or run? He fled with his family to the United States, where he was about to face another life-altering encounter with forces beyond his control.

Soon, according to Carlos, he would be drawn against his will into a deal with U.S. Immigration and Customs Enforcement, which asked him to snitch on other undocumented immigrants or face deportation. When he refused to comply, he faced retaliation. This account is based on more than 300 pages of documents and interviews with Carlos, his relatives, and his attorney. ICE declined to comment on most aspects of Carlos’s case, though an agency official said an inquiry had determined that some of Carlos’s accusations were unfounded.

The interrogation on that early morning in 2017 lasted five minutes before the officers, who turned out to be ICE agents, announced that they were executing an order for Carlos’s arrest.

The agents brought Carlos, 26 years old at the time, to their office downtown. At first, the officers simply demanded that he sign papers that they told him would allow them to send him back to Mexico. He refused and asked for an attorney. But unlike U.S. citizens in criminal cases, undocumented immigrants aren’t automatically afforded a lawyer. An agent, through a translator, told Carlos that he had two options: Either turn in other undocumented immigrants or be deported himself.

The agent laid out the choices in stark detail. At a monthly check-in at the ICE office, Carlos would report names of other undocumented people. The agent told him to focus on “illegal aliens” with criminal histories and charges like drunken driving or domestic violence. He would need to produce one name per month for three months. If he refused, he would be sent back to Mexico.

In that moment, sitting in front of an ICE agent, Carlos pondered another existential question: Do I turn in other members of my community, or abandon my two young kids and wife, pregnant with a third child? Frightened, he agreed to cooperate.

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Department of Homeland Security officers patrol the John E. Moss Federal Building, which contains offices for U.S. Customs and Immigration Enforcement, in Sacramento, Calif., on Sept. 10, 2018.

Photo: Joel Angel Juárez for The Intercept

Immigration and Customs Enforcement, like nearly all post-9/11 federal law enforcement agencies, has evolved into a de facto intelligence-gathering organization, in addition to its immigration and customs work. ICE is split into two main sub-agencies: one that focuses on the migration of people and another that targets the migration of crime.

Homeland Security Investigations polices cross-border criminal activity, which mostly includes human trafficking, drug cartels, money laundering, even fraud schemes meant to entrap immigrants. HSI is the country’s second-largest investigative agency, with more than 6,000 special agents in 47 countries around the world.

HSI works closely with confidential informants. An HSI agent will develop a source with useful information as a means of investigating criminal activity. In exchange, the informant receives compensation in the form of cash, a work permit, and, in some cases, immigration benefits. Some of the money HSI seizes — we don’t know how much — is used to pay the agency’s informants.

The world of ICE-informant relationships is necessarily murky, according to former HSI agent Jerry Robinette. “You’re picking at a very sensitive topic that can be damaged by the light,” Robinette told me. “But at the same time, people need to understand this is not a haphazard program.”

Working with confidential informants is a controlled process with oversight from HSI management, Robinette said. Informants are registered and receive identification numbers. Background checks are conducted. Supervisors must approve the agreements. Indeed, ICE dedicates an entire handbook solely to informants, though its contents have not been made public. A separate HSI handbook on asset forfeiture, leaked to The Intercept and also published by the independent media organization Unicorn Riot, says that ICE should “identify, cultivate, and retain assistance” from so-called confidential informants “who are intimately involved with targeted criminal organizations.” According to the handbook, employing an informant should be a last resort, and the decision to do so should be made only after weighing the informant’s reliability against other factors. Every dollar paid to informants should be carefully considered and documented.

However, several news stories have highlighted the pitfalls of ICE-informant relationships. Agents have fostered improper liaisons with informants. In one case, ICE knew an informant participated in killings yet continued working with him anyway (the agent was later fired). ICE, along with the FBI, uses informants and then works to deport them. ICE defenders like Robinette paint these as isolated incidents, and, of course, most ICE informants don’t make the news.

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The Moss federal building, left, which houses offices for ICE in Sacramento, Calif.

Photo: Joel Angel Juárez for The Intercept

Carlos says he entered the U.S. seeking asylum three times, starting in 2012. The exact circumstances of those entries remain in dispute; he was deported each time. Finally, in 2014, he entered illegally. Because of those prior deportations, ICE could have removed him immediately when it encountered him in March 2017.

Instead, beginning in April 2017, Carlos would show up every month at the ICE office in downtown Sacramento. He’d enter the stone and glass office building, pass through the metal detector, and sit in the foyer, waiting for his name to be called. Legos and other toys sat in a corner to keep children occupied.

ICE released Carlos on an order of supervision, an arrangement in which the agency temporarily agrees not to deport an undocumented person. Under the order, the immigrant must meet certain conditions, such as showing up for monthly or annual check-ins, wearing an ankle monitor, and obtaining permission from ICE before traveling out of state.

On Carlos’s order of supervision, agents checked a box marked “Other,” and added the words: “Terms discussed in person.” Those terms, according to Carlos and his attorney, were the following: In exchange for his liberty, Carlos would report names of other undocumented individuals to ICE. He was required to provide at least three names over a three-month period. A separate document later written by his ICE handler confirmed that Carlos was released “with the agreement the SUBJECT would report monthly and provide leads on criminal aliens.” The officers in Carlos’s case did not expressly state their plans, but deportation would have been one potential outcome for any individuals Carlos named.

Heidi Cruz, 27, left, and her son Carlos Ismael, 5, second from left, watch as her son Brian Josue, 9, arrives home from school in Sacramento, Calif., Monday, Sept. 10, 2018. (Joel Angel Juárez for The Intercept)

Heidi Cruz, 27, left, and her son Carlos Ismael, 6, watch as her other son, Brian Josue, 9, arrives home from school.

Photo: Joel Angel Juárez for The Intercept

However, Carlos did not have a criminal history, and he was not aware of any acquaintances with convictions. He agonized over what to do. His wife, Heidi, was experiencing complications with her pregnancy. At one point he got so desperate that, at an ICE agent’s suggestion, he considered approaching a random group of men at the neighborhood park where he played pickup soccer to ask if they knew anyone with a criminal past, but he chickened out. He found it troubling that immigration officials were conscripting him to do their job for them and wondered what would stop ICE from simply deporting him when they were done using him.

So, Carlos did the only thing he could think to do: At his check-ins month after month, he refused to provide names. He’d simply sign the form indicating that he hadn’t absconded, answer basic questions about his livelihood, and head home.  The allotted three months passed. At first, Carlos says, ICE officials seemed agitated by his refusal to provide leads, but each time, they released him.

Four months into this experiment, as Carlos sat in the waiting room, he saw a man enter the ICE office holding a scrap of paper. Carlos was called in 10 minutes later. When he sat down, Carlos noticed the same paper on a desk. An agent asked him if he had brought the paper, which Carlos saw had a Mexican name on it. Carlos said no. The agent warned him that the agent’s boss would get angry if Carlos didn’t supply any names. It didn’t matter to ICE whether Carlos knew the person had been arrested or convicted of a crime, the agent told him; as long as Carlos simply suspected an undocumented person of criminal activity, that was enough. The alternative, the agent reminded Carlos, was that he would be deported. Still, ICE permitted Carlos to leave. Two months later, he wouldn’t be so lucky.

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Carlos Rueda Cruz was ordered to report to the Moss federal building in downtown Sacramento every month for six months in 2017 to provide the names of other undocumented immigrants to ICE.

Photo: Joel Angel Juárez for The Intercept

The other main ICE sub-agency, Enforcement and Removal Operations, “enforces the nation’s immigration laws in a fair and effective manner,” according to its website. ERO detains and deports undocumented immigrants; it has no formal role in gathering intelligence or battling criminal activity.

According to conversations with five former ICE employees, ERO is not structured to work with confidential informants. Mostly, it facilitates the benefits needed for HSI to do its job. For example, it can delay deportation of an informant or release the informant from detention on supervision. Unlike their counterparts at HSI, ERO officers do not have a specific mandate to conduct undercover operations. They do not dedicate units to handling confidential informants, nor are they given special guidance in finding, training, and monitoring informants.

Yet ERO was the sub-agency that negotiated the agreement with Carlos, and four of the former ICE employees revealed that ERO does, at times, use informants. When asked about this, an ICE spokesperson said the agency is “unable to discuss law enforcement tactics in detail.”

In the eyes of the former ICE employees, a crucial line distinguishes a formal, confidential informant from an informal source of information. ERO interviews many individuals while searching for an undocumented immigrant to remove. If ERO knocks on the door of an individual who has disappeared, for instance, agents could ask their apartment manager if the person left a forwarding address. The apartment manager is not a registered “confidential informant,” but simply the kind of data source used in any law enforcement investigation.

A recently retired ERO field office director in Texas dealt with a handful of confidential informants during his career. In an interview, he downplayed ERO’s use of informants in comparison with HSI and would not provide details on any specific relationships he developed with informants. The former field office director, who asked not to be identified because he is engaged in litigation against the agency, also said he had never received formal training on informants — he’d simply learned “on the job” from a colleague who had worked with informants in the past. While he had always registered informants, he said he had never paid any of them. That was HSI’s thing. Instead, he would reward informants by getting them out of detention or agreeing not to deport them. Informants were always used to target a specific individual for removal, rather than in an open-ended search, as in Carlos’s case, he added. At times, a source would approach ICE and ask to help, rather than the other way around.

However, for the immigrant, any relief from deportation is temporary. “A case can be prolonged as long as he’s cooperating and everybody’s happy,” said Robinette, the former HSI agent. “When the music stops and you can’t or won’t deliver, what’s next? What’s next is you’re put in deportation proceedings.”

A more permanent solution is called an S visa, often nicknamed a “snitch visa.” The government allots 250 of these per year, across federal law enforcement agencies, to immigrants who help officials in criminal and terrorism investigations. However, the agency itself has to apply and push for an informant to receive an S-visa, not the immigrant or their attorney. Rarely do risk-averse senior bureaucrats seek responsibility for sponsoring a visa for an informant. The State Department, for example, has awarded only six S visas since the category was established in 1994. Immigration attorneys frequently refer to the S visa as a unicorn.

Mike Magee, another former ERO agent, said he never employed informants but wished he had. When told about ERO’s handling of Carlos, Magee called it a “novel” tactic. Ostensibly, he said, many immigrants live in the same community and would be well positioned to find others for ERO.

“It’s something, as a manager, I would have tried. Maybe I’d do it for four months or so and see how it turned out,” Magee said. According to Magee, senior ICE bureaucrats in Washington, D.C., often judge local ERO field agents based on statistics: The more undocumented individuals they arrest, the more favorably their performance is viewed. But Magee also noted that using informants to report other undocumented folks could catch people ICE wasn’t interested in, and those arrests wouldn’t boost the numbers. “If it’s just plain Jose worker, it’s a waste of time.” Magee said. “It’s not the mission.”

Both Magee and the former Texas field office director said they’d try a new policy only after running it by ICE attorneys and supervisors in Washington, D.C., to establish its legality. Javad Khazaeli, who spent six years as an ICE attorney, said he couldn’t think of any law the practice violated. “I don’t know whether this is illegal,” he said. “It is for sure abnormal, and in my view, very problematic. I have a hard time seeing how any supervisor could approve a wild goose chase like this with a person’s freedom in the balance.”

Michael Kohler, who was an ICE lawyer from 2003 to 2008, said that when he was at the agency, ERO started working with informants more regularly. But while HSI carefully controlled their use, ERO was not exactly a well-oiled machine. ERO “tried to piggy-back off of what HSI did,” Kohler wrote in an email.

Carlos Rueda Cruz, 28, second from right, poses for a portrait with his family outside their home in Sacramento, Calif., Monday, Sept. 10, 2018. (Joel Angel Juárez for The Intercept)

Carlos and his family, photographed outside their home in Sacramento on Sept. 10, 2018.

Photo: Joel Angel Juárez for The Intercept

Carlos, now 28, lives in a studio apartment in north Sacramento with Heidi and their three young children, ages 9, 6, and 8 months. When I visited one early morning in June, I passed through a corrugated metal fence painted with the Mexican flag. Carlos and his family were just waking up. Sitting in his kitchen as Heidi prepared café con canela and their kids watched a Spanish cartoon version of “Wheels on the Bus,” Carlos told me why he is speaking publicly about his encounter with ICE.

At around 11 a.m. on September 26, 2017, he checked in at the Sacramento ICE field office for a sixth time. After waiting for 20 minutes, an agent told him that he would be arrested for failing to cooperate.

A narrative of the arrest, written later by one of the ICE agents, confirmed that they planned to detain Carlos expressly because of his refusal to cooperate: “Due to SUBJECT’s inability to provide any assistance to ICE the decision was made that SUBJECT would be taken into custody on his next reporting date as of 09/26/2017.”

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Luis Angel Reyes Savalza, Carlos’s attorney, obtained this summary document written by an ICE agent and provided it to The Intercept. The redactions were made by ICE.

Document: ICE

They fingerprinted Carlos and stashed him in a cell. Several hours later, the agents sat him down at a desk and ordered him to sign a form. Since Carlos could not read or understand English, he refused. He asked what the document said. Carlos said an agent started screaming at him in Spanish, calling him “pendejo,” or “idiot.” The agent ranted about how Carlos was squandering an opportunity and was being deported because he wouldn’t help ICE.

Suddenly, Carlos alleges, two agents jumped on top of him. Each yanked one of Carlos’s arms behind him, and one of them slammed Carlos’s head against the desk. A third agent walked behind him with the document and an ink pad in an attempt to get Carlos’s fingerprints as a form of signature. Carlos started screaming and crying uncontrollably. The excruciating pain in his shoulders and neck made it feel as if he were being tortured. He pleaded with them to stop. They didn’t. Carlos said he asked to see a lawyer. “An attorney won’t save you now,” Carlos recalled one of the agents telling him in Spanish.

Eventually, Carlos said, the agents stopped trying to force him to sign the papers and bussed him to a nearby detention center, where they kept him overnight. The next day, back in the office, Carlos was questioned by a supervisor. When he again refused to sign a document he did not understand, agents slammed him against the table and repeatedly kneed him in the ribs and sides, Carlos said. This time, other detainees in the holding area who heard Carlos’s screams banged on the bars of their cells and pleaded for the agents to stop. In letters written afterward, which were obtained by Carlos’s attorneys as evidence in his lawsuit and reviewed by The Intercept, two detainees confirmed the basic details of Carlos’s account. “I only hope that this note is read so they don’t abuse more people,” a detainee named Juan wrote.

After being assaulted for several minutes, Carlos could no longer withstand the pain, he told me. He agreed to sign the paper. The officers pressed his fingers onto the ink pad and then onto the document. Then they returned him to detention. While there, Carlos repeatedly sought medical attention but was denied access to pain relievers for nearly three weeks, he said. With Heidi’s help, he found a lawyer who petitioned ICE for his release. He was freed from detention two months later.

ICE did not respond to requests for comment on Carlos’s allegations. But Luis Angel Reyes Savalza, Carlos’s attorney, shared an email in which his firm had asked ICE to conduct an inquiry into the incident. Dana L. Fishburn, then acting deputy field office director in ERO’s San Francisco office, responded that she had done so and found no evidence to support Carlos’s claims of physical assault. “As you are aware, this is a serious allegation, the safety and welfare of all aliens in custody is of the upmost importance to ICE,” Fishburn wrote. “We do not and would not force anyone to sign a document.”

Reyes Savalza asserted that the alleged assault was retaliation for refusing to snitch. “We’re obviously concerned that there are more of these cases happening out in the community, that there [are] more people like Carlos who are forced to make up allegations against other people to save themselves,” Reyes Savalza told me.

Neither Carlos nor Reyes Savalza filed a complaint with the ICE Office of Professional Responsibility, the office responsible for handling cases of employee misconduct for the agency. Instead, Reyes Savalza said, Carlos is considering other legal avenues.

I spoke with 10 immigration attorneys who have represented clients who worked as informants for ICE. All said they were not surprised by Carlos’s story, but none had heard of anything exactly like it before.

ICE and other federal law enforcement agencies have been intensely monitoring American Muslim communities for decades, said Ramzi Kassem, a law professor at City University of New York who also directs its Immigrant & Non-Citizens Rights Clinic. Kassem shared the story of one client in the greater New York City area who was approached by HSI to provide the names and license plate numbers of undocumented members of his mosque. “Names of other undocumented people was the ask,” Kassem said. “I call it a fishing expedition, because [they’re not looking for] one specific person.”

Like Carlos, Kassem’s client received a warning from ICE: If you don’t give us what we want, we’ll make sure you’re deported.

“This idea [that] you’re trying to get immigrants to turn on each other — it’s a secret police mentality,” said Zac Sanders, an immigration attorney in New York City. Since most immigrants are law abiding, it’s likely that people with no criminal history would be caught in the dragnet, he said. “You can watch cop shows on TV and know it’s ridiculous.”

Carlos Rueda Cruz, 28, left, helps his son Brian Josue, 9, with his homework at their home in Sacramento, Calif., Monday, Sept. 10, 2018. (Joel Angel Juárez for The Intercept)

Carlos helps his son Brian Josue with his homework at their home.

Photo: Joel Angel Juárez for The Intercept

In his kitchen, Carlos said he still suffers from shoulder pain. He is sharing his story in the hope that the agency won’t repeat the same tactic with others. “They shouldn’t treat people that way. It was totally illegal, what they did to me.”

Carlos is no longer eligible for asylum. In his telling, after years of threats from cartels in Michoacán, he presented himself at the border in 2013 to seek asylum. Normally, Carlos would have been allowed into the country while pursuing that claim. Instead, Carlos said the border patrol agent was in a “bad mood” and his Spanish was poor. In an order dated March 23, 2013, an agent wrote that Carlos was a citizen of Mexico and was inadmissible to the United States. Nothing about asylum is listed on the document, and Carlos was quickly deported. He was removed twice more, three weeks later and almost a year after that, according to an ICE document; Carlos says he tried unsuccessfully to make an asylum claim both times. In 2014, he crossed undetected, and was living in Sacramento until ICE arrested him in 2017. In those three years, despite the fact that an immigrant has 12 months after arriving in the U.S. to apply for asylum, he did not try again.

After Carlos hired an attorney following the alleged assault in October 2017, he formally asserted a fear of returning to Mexico, which entitled him to an interview with an asylum officer. However, since the one-year window has closed, Carlos is now asking for protection from deportation under the United Nations Convention Against Torture. His next court hearing is scheduled for September 2019.

Carlos Rueda Cruz, 28, holds his son Santiago, 8 months old, as he poses with a photograph of his grandparents Maria de Jesus Peña Loza, left, and Pedro Rueda, right, inside his home in Sacramento, Calif., Monday, Sept. 10, 2018. Rueda Cruz's grandfather raised him as he grew up in Michoacán, Mexico. (Joel Angel Juárez for The Intercept)

Carlos holds his son Santiago, 8 months, as he displays a photograph of his grandparents Maria de Jesus Peña Loza and Pedro Rueda.

Photo: Joel Angel Juárez for The Intercept


About an hour and a half into our conversation, Carlos’s 93-year-old grandfather, Pedro Rueda, who had been smoking a cigarette outside, ambled into the kitchen. Rueda had raised Carlos since he was 10. Now, he was visiting Carlos and his family in Sacramento for two weeks on a tourist visa. He spread butter on a roll while wistfully describing his ranch back in Michoacán. He missed his cows.

Rueda is the family patriarch and its most outspoken opposition activist. Carlos had followed him into political organizing. When the family was threatened, Carlos and several other relatives sought asylum in the United States, while Rueda stayed to fight for what he believed in.

Yet when I mentioned that I was writing an article about his grandson’s experience with ICE, Pedro’s face darkened. He said he always tells Carlos: “Do whatever the government tells you to do, and everything will be fine.”

Top photo: Carlos Rueda Cruz holds his 8-month-old son, Santiago, at his home in Sacramento, Calif., on Sept. 10, 2018.

The post Undocumented Immigrant Faces a Choice: Become an Informant for ICE or Be Deported appeared first on The Intercept.

If Brett Kavanaugh’s Calendar Doesn’t Show the Binge Drinking He Boasted of in His Yearbook, What Does It Prove?

The New York Times reports that Brett Kavanaugh plans to offer the Senate Judiciary Committee pages from his high school social calendar which include no mention of a scheduled engagement with a teenage Christine Blasey in the summer of 1982, as if that somehow proves that he did not attempt to rape her at a drunken house party.

It is, of course, blindingly obvious that teenage boys do not typically use calendars to schedule criminal acts of sexual assault, or, for that matter, to make a written record of their illegal activities after the fact. But in Kavanaugh’s case, there is an obvious way to establish how incomplete of a record his calendar is: comparing pages for that summer, and the ensuing school year, to the regular binge-drinking sessions he referred to in his high school yearbook.

In his yearbook entry for the 1982-83 school year, Kavanaugh boasted about his leading role in a club devoted to drinking 100 kegs of beer, and referred to episodes of drunken vomiting, a wild “FFFFFFFourth of July” party, and run-ins with the police during outings at the beach.

A photograph, which has been posted across several social media platforms, of Brett Kavanaugh’s yearbook page from his time at Georgetown Prep. Some personal information has been redacted.

As my colleague Peter Maass explained, the cryptic references to those drunken episodes from Kavanaugh’s yearbook entry have been described in greater detail by his close friend, Mark Judge, in two memoirs, “Wasted: Tales of a Gen X Drunk” and “God and Man at Georgetown Prep.” According to Blasey, Judge was in the room when Kavanaugh assaulted her, both as a witness and an accomplice. Judge has denied that account, but his memoir details repeated episodes of blacking out while drinking, and having no memory of his activities even the following day.

According to CNN, in “God and Man at Georgetown Prep,” Judge describes the 100-keg quest in detail and also writes of a bachelor party that he and friends threw for a teacher at someone’s house, which included one of those kegs and a stripper. If Kavanaugh was present at that party, or helped to plan it, it would be interesting to see if it is mentioned on his calendar, and if the name of every guest was listed.

In other words, unless Kavanaugh’s calendar chronicles in detail the drunken behavior that we know, from him, he took part in that year, it is clearly an incomplete record of his activities that year, and proves nothing more than that he did not note on his calendar that he planned to get drunk and sexually assault a younger student.

The post If Brett Kavanaugh’s Calendar Doesn’t Show the Binge Drinking He Boasted of in His Yearbook, What Does It Prove? appeared first on The Intercept.

There’s Nothing Natural About Puerto Rico’s Disaster

In this Sept. 8, 2018 photo, Alma Morales Rosario poses for a portrait between the beams of her home being rebuilt after it was destroyed by Hurricane Maria one year ago in the San Lorenzo neighborhood of Morovis, Puerto Rico. Rosario, who is incapacitated by diabetes and a blood disease, took a loan to upgrade her home before the storm hit, and lost everything. After the storm, Rosario rented a home until she could no longer afford it on her monthly $598 dollar pension and now splits her time living with her mother and daughter. Rosario said she already spent her $7,000 dollars of FEMA aid, and is now using money from a relative, who is also helping her with the labor of rebuilding her home, but says she knows there's not enough money for all the materials. "I hope with God's help to have the house closed on the outside, walls and ceiling in November. But if it's not possible, I'll make a room with the wood I have under the structure and live there until I can finish it. I never thought this was going to happen to me," she said. (AP Photo/Ramon Espinosa)

Alma Morales Rosario poses for a portrait between the beams of her home being rebuilt after it was destroyed by Hurricane Maria one year ago in the San Lorenzo neighborhood of Morovis, Puerto Rico, on Sept. 8, 2018.

Photo: Ramon Espinoza/AP

I’ve been digging into disaster capitalism for a couple of decades now. For those of you who are new to the term, disaster capitalism is about how the already rich and powerful systematically exploit the pain and the trauma of collective shocks — like superstorms or economic crisis — in order to build an even more unequal and undemocratic society.

Long before Hurricane Maria, Puerto Rico was a textbook example. Before those fierce winds came, the debt — illegitimate and much of it illegal — was the excuse used to ram through a brutal program of economic suffering, what the great Argentine author Rodolfo Walsh, writing about four decades earlier, famously called miseria planificada, planned misery.

This program systematically attacked the very glue that holds a society together: all levels of education, health care, the electricity and water systems, transit systems, communication networks, and more.

It was a plan so widely rejected that no elected representatives could be trusted to carry it out. Which is why in 2016 the U.S. Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act, known as PROMESA. That law amounted to a financial coup d’etat that put Puerto Rico’s economy directly in the hands of the unelected Financial Oversight and Management Board. In Puerto Rico, they call it La Junta.

The term fits. As Greece’s former Foreign Minister Yanis Varoufakis puts it, governments used to be overthrown with tanks — now it’s with banks.

It was in this context — with every Puerto Rican institution already trembling from La Junta’s assaults — that Maria’s ferocious winds came roaring through. It was a storm so powerful it would have sent even the sturdiest society reeling. But Puerto Rico didn’t just reel. Puerto Rico broke.

Not the people of Puerto Rico, but all those systems that had already been deliberately brought to the brink: power, health, water, communication, food. All those systems collapsed. And let us be clear: It was that combination of disaster capitalism and an extraordinary hurricane that stole so many precious lives.

A few lives were lost to wind and water, yes, but the vast majority died because when you systematically starve and neglect the very bones of a society, rendering it dysfunctional on a good day, such a society has absolutely no capacity to weather a true crisis.

That is what the research tells us, those studies Donald Trump so casually denies: The major causes of death were people being unable to plug in medical equipment because the electricity grid was down for months; health networks so diminished they were unable to provide medicine for treatable diseases. People died because they were left to drink contaminated water because of a legacy of environmental racism. People died because they were abandoned and left without hope for so long that suicide seemed the only option.

Those deaths were not the result of an unprecedented “natural disaster” or even “an act of God,” as we so often hear.

Honoring the dead begins with telling the truth. And the truth is that there is nothing natural about this disaster. And if you believe in God, leave her out of this too.

God isn’t the one who laid off thousands of skilled electrical workers in the years before the storm, or who failed to maintain the grid with basic repairs. The fatal logic of economic austerity did that. God didn’t give vital relief and reconstruction contracts to politically connected firms, some of whom didn’t even pretend to do their jobs. God didn’t decide that Puerto Rico should import 85 percent of its food — this archipelago blessed with some of the most fertile soil in the world. God didn’t decide Puerto Rico should get 98 percent of its energy from imported fossil fuels — these islands bathed in sun, lashed by wind, and surrounded by waves, all of which could provide cheap and clean renewable power to spare.

These were decisions made by people working for powerful interests.

Because for 500 uninterrupted years, the role of Puerto Rico and Puerto Ricans in the world economy has been to make other people rich, whether by extracting cheap labor or cheap resources or by being a captive market for imported food and fuel.

A colonial economy by definition is a dependent economy. A centralized lopsided and distorted economy. And as we have seen, an intensely vulnerable economy.

And it isn’t even right to call the storm itself a “natural disaster.” None of these record-breaking storms are natural anymore — Irma and Maria, Katrina and Sandy, Haiyan and Harvey, and now Florence and Mangkhut, which battered parts of Asia this week.

The reason we are seeing records shattered time after time is that the oceans are warmer and the tides are higher. And that’s not God’s fault either. It’s the fault of governments protecting the interests of the fossil fuel companies and agribusiness giants that pay for their campaigns.

Victims of Hurricane Maria carry supplies brought to them via helicopter by the Puerto Rican National Guard at the  San Lorenzo neighborhood of Morovis, Puerto Rico, Saturday, Oct. 7, 2017. (AP Photo/Ramon Espinosa)

Victims of Hurricane Maria carry supplies brought to them via helicopter by the Puerto Rican National Guard at Morovis, Puerto Rico, on Oct. 7, 2017.

Photo: Ramon Espinoza/AP

This is the deadly cocktail — not just a storm, but a storm supercharged by climate change slamming headlong into a society deliberately weakened by a decade of unrelenting austerity layered on top of centuries of colonial extraction, with a relief effort overseen by a government that makes no effort to disguise its white supremacy.

Maria just blew so hard she tore all the genteel disguises off these brutal systems, leaving them stark naked for the world to see. The hurricane and FEMA’s endless failures pushed Puerto Rico over the edge. But we have to talk about why Puerto Rico was teetering so precariously on the precipice in the first place.

We also need to stop talking about incompetence. Because if it were incompetence, there would be some effort to fix the underlying failures. To rebuild the public sphere, design a more secure food and energy system, and stop the carbon pollution that guarantees even more ferocious storms in the coming decades.

Yet we have seen the precise opposite. We have seen nothing but more disaster capitalism — using the trauma of the storm to push massive cuts to education, hundreds of school closures, wave after wave of home foreclosures, and the privatization of some of Puerto Rico’s most valuable assets.

And just as Trump denies the reality of thousands of Puerto Rican deaths, he also denies the reality of climate change. Which his administration must do in order to push dozens of toxic policies that makes the crisis even worse.

Such is the official  response to this modern-day catastrophe: Do everything possible to make sure that it will happen again and again. Do everything possible to bring on a future in which climate disasters arrive so fast and so furious that even gathering together to mourn the dead on painful anniversaries could, for our children, come to seem like an unattainable luxury. They will already be in the throes of the next emergency, like people in the Carolinas, Kerala, and the Philippines are right now.

That is why dozens of Puerto Rican organizations, under the banner of JunteGente, are standing together to demand a different future. Not just a little bit better but radically better. Their message is a clear one: that this storm must be a wakeup call, a historic catalyst for a just recovery and just transition to the next economy. Right now.

That begins with auditing and ultimately erasing an illegal debt, and firing La Junta because its very existence is an affront to the most basic principles of self-government. Only then will there be the political space to redesign the food, energy, housing, and transportation systems that failed so many — and replace them with institutions that truly serve the Puerto Rican people.

This movement for a just recovery draws on local brilliance and protected knowledge to make the most of the richness of the soil, as well as the power of the sun and wind.

Today I am reminded of the words of Dalma Cartagena, one of the great leaders of Puerto Rico’s agro-ecology movement: “Maria hit us hard. But it made our convictions stronger. Made us know the correct path.”

The era of planned misery and deliberately designed dependence is over. It’s time to plan for joy and design for liberation. So that when the next storm comes — and it will — the winds will roar and the trees will bend, but Puerto Rico will show the world that it can never be broken.

This is an extended version of remarks given September 20 at “One Year Since Maria,” a rally in Union Square Park in New York City, organized by UPROSE and #OurPowerPRnyc.

The post There’s Nothing Natural About Puerto Rico’s Disaster appeared first on The Intercept.

The Best Evidence That the NFL Effectively Banned Colin Kaepernick? His Name Is Eric Reid.

SANTA CLARA, CA - SEPTEMBER 12:  Colin Kaepernick #7 and Eric Reid #35 of the San Francisco 49ers kneel in protest during the national anthem prior to playing the Los Angeles Rams in their NFL game at Levi's Stadium on September 12, 2016 in Santa Clara, California.  (Photo by Thearon W. Henderson/Getty Images)

Colin Kaepernick, right, and Eric Reid of the San Francisco 49ers kneel in protest during the national anthem prior to playing the Los Angeles Rams in Santa Clara, Calif., on Sept. 12, 2016.

Photo: Thearon W. Henderson/Getty Images

Colin Kaepernick should have an NFL job right now. He’s arguably better and more accomplished than half of the starting quarterbacks currently in the league. He’s better and more accomplished than every backup. Let’s not even talk about third-stringers. The notion that Kaepernick is not one of the top 100 quarterbacks in the league is preposterous.

Just for argument’s sake, though, let’s work from the premise that Kaepernick is not in the NFL right now for purely football reasons. Let’s start at the position that every quarterback in the entire league is better, more skilled, more capable, more accomplished than he is. All of them. And that he’s been out of the NFL for over 500 days simply because it has been determined on football grounds that he would not make a single team better. You’d be hard-pressed to find a single current or former NFL player to agree with such a position, but let’s just put all that aside for a moment.

Try to make the argument that Eric Reid doesn’t belong on an NFL roster for football reasons. It’s impossible.

Now explain why Pro Bowl safety and defensive back Eric Reid doesn’t have a job.

Reid is 26 years old and injury-free. He can play multiple positions and is an ethical, generous leader on and off the field. His rookie contract just expired, and he is widely known as a coachable, team-first athlete. Try to make the argument that he doesn’t belong on an NFL roster for football reasons.

It’s impossible. A deep analysis of his stats and value has already been done. Everybody who plays at Reid’s level has a job and a well-paying contract except for Reid. The NFL is riddled with athletes who’ve been suspended and arrested and convicted — and they’ve routinely been given second and third and fourth chances. But not Eric Reid.

That’s because Reid is clearly being punished — not just for taking a knee on the field, which he did, but for doing so alongside Kaepernick.

Reid was the first NFL player to join Kaepernick in his protest against systematic racism and police brutality in this country. As the protest gained steam, a small handful of black players joined in — some continue to this day, either by taking a knee or remaining in the locker room during the national anthem. But only Reid did so side by side with Kaepernick for an entire season.

Reid was the first NFL player to join Kaepernick in his protest. It’s difficult to imagine any other reason why he does’t have a job in the NFL this season.

We can’t know for sure, but it’s difficult to imagine any other reason why Reid does’t have a job in the NFL this season. It may sound far-fetched, but you have to remember that many NFL team owners and executives have said that they “hate” Kaepernick and have even gone so far as to compare him to a convicted murderer.

I suspect team owners and executives hate Kaepernick so much that their animosity toward him spread to Reid. I can’t make sense of it any other way. I’ve looked at Reid’s forced exodus from the league from every imaginable angle. It’s hard to believe that a mainstream American company — and that’s what the NFL is, a corporation — is willing to so obtusely tip their hand like this. But I think that’s exactly what they’ve done here. It’s preposterous!

I’m a sports junkie — have been my entire life. On sports talk radio, I regularly hear both the hosts and callers say that they think Kaepernick has been banished from the NFL — not just because of his on-the-field protest, but because he wore socks portraying cops as pigs or a shirt featuring Malcolm X talking to Fidel Castro. Let’s just pretend, just for the moment, that those articles of clothing — not the protests themselves — were the things that pushed NFL owners to effectively ban Kaepernick. Let’s say that that’s the case.

Then how do you explain Eric Reid?

No one has snapped pictures of Reid wearing politically radical clothing. He never rocked a full afro. He didn’t put up a Black Power fist during warmups or after a game.

What he did, though, was kneel by his teammate Colin Kaepernick’s side. It sure looks like it’s cost him everything.

The post The Best Evidence That the NFL Effectively Banned Colin Kaepernick? His Name Is Eric Reid. appeared first on The Intercept.

“Kick Ass, Ask Questions Later”: A Border Patrol Whistleblower Speaks Out About Culture of Abuse Against Migrants

The 4-year-old boy and his parents had been lost for days in the desert and were desperately thirsty. Mario, a new Border Patrol officer, had received a call that there were migrants in the area and went out looking for them near the village of Menagers Dam, or Ali Ak Chin, on the Tohono O’odham reservation in Arizona. It was nearly dawn when Mario first spotted the mother in a wash. The family readily gave themselves up, and the woman told Mario that they needed water.

“They were pretty banged up,” Mario told The Intercept. “They were in distress.” He alerted his superior officer to his location. Just as the officer was arriving on the scene, Mario handed the 4-year-old boy a jug of water. Before the boy could take a sip, however, the officer kicked the jug out of the child’s hands and barked, “There’s no amnesty here.” He then reprimanded Mario for offering him water, warning him, “Don’t go south on me.” In other words, don’t show an ounce of sympathy for those from below the border.

Mario said he was shocked and offended by the officer’s actions. But it was just one of many incidents of brutality that he would witness during his two years with the Border Patrol, about which he is speaking out for the first time.

The Intercept is identifying Mario by a pseudonym because he still works for a federal agency, and fears that using his name would lead to reprisals and jeopardize his job. A military veteran, Mario enlisted in the Border Patrol in 2009 and resigned in 2011. Although he has been out of the Border Patrol for years, his account sheds light on practices that reportedly continue today, and provides a rare insight into the culture of an agency that has been rhetorically emboldened by the Trump administration and promised more money, personnel, and technology to carry out aggressive border enforcement.

In wide-ranging conversations, Mario discussed assaults and other abuses against migrants, a lack of effective oversight, and a disturbing culture of dehumanization in the agency. He says that he has decided to step forward to tell the American public about conduct he found embarrassing, cruel, and unregulated.

The Intercept has not been able to corroborate all of the specific details of Mario’s claims, but two other former personnel who have spoken publicly about problems with the agency — James Tomsheck, the former head of internal affairs for Customs and Border Protection, and Francisco Cantú, author of a recent Border Patrol memoir, who served in the same station as Mario — say that his stories line up with their knowledge and experiences. They are also corroborated by complaints filed by migrants and allegations published by NGOs and news outlets. Mario confirmed his position in the agency with photographs of himself in uniform, old ID cards, serial numbers of BP-issued gear, as well as detailed knowledge of the area in Arizona where he was posted, Ajo station in the Tucson sector.

As the part of Customs and Border Protection, the nation’s largest federal law enforcement agency, the Border Patrol is notoriously opaque. Most of its actions occur in locked-door stations, holding facilities, or remote desert regions inaccessible to the public, journalists, and lawmakers. There have been few front-line agents willing to speak to the press. “The Green Line of silence is higher and wider than it’s ever been before,” Tomsheck told The Intercept, referring to the implicit Border Patrol pact not to speak publicly about what happens in the field. There is “a clear understanding on the part of the rank and file in the Border Patrol that if they should engage in whistleblower activities, or do anything to promote transparency, that they would be retaliated against in a way that would likely end their career.”

Mario said that he could not stand by as he watched reports that the kind of abuses he witnessed continue. 

Though Mario’s run with the Border Patrol is over, he told The Intercept that he could not stand by as he watched reports that the kind of abuses he witnessed continue. In just the past year, Border Patrol agents fatally shot an unarmed woman and have reportedly threatened to rape children in their custody. Evidence also emerged that agents regularly dissuade potential asylum-seekers from asking for protection, and slash bottles of water left out for people crossing in the desert. What finally spurred Mario to come forward was the January arrest of Scott Warren, a humanitarian aid activist, for allegedly “harboring illegal aliens.” Warren was a volunteer who provided food, water, and clothing to migrants, and when Mario read about him in the news, he thought it was clear that Warren was trying to “stop the deaths” in the desert. He said he wasn’t surprised that the Border Patrol targeted Warren — “it’s just the nature of the beast” — but wished there was something he could do. So he decided to speak out.

“Kick ass, ask questions later.” That was the mentality of the Border Patrol when Mario signed up and was dispatched to the remote desert region near Ajo, Arizona. In the years Mario was stationed there, Ajo was among the busiest migrant crossing and drug trafficking corridors in the country, which agents referred to, Mario said, as “the wild wild West.” According to his descriptions, Border Patrol agents conducted themselves much like the lawless and violent cowboys and colonizers that preceded them.

Mario claimed that the same officer who’d kicked the water bottle out of the child’s hands also ordered others to slash water bottles left out by humanitarian aid groups for thirsty migrants. Around late 2009, Mario was with a group of agents, including trainees and two senior officers, when they spotted aid workers leaving gallons of water along a migrant trail. The agents waited for the aid workers to leave, and then, referring to the water as “tonk water” — “tonk” is common Border Patrol slang, and comes from the noise a flashlight supposedly makes when thudding against a migrant’s head — the senior officer told the trainees who were with him, “If I were you, I’d take care of it.” Three agents then walked to where the jugs were, “took their Leathermans out, and just sliced them open.” The officer both gave the order and saw that the agents slashed the bottles.

Mario said this was typical — and so was pouring out migrants’ water and dumping out their food when they dropped their bags to run from the Border Patrol. I asked him if this was something that he had been ordered or trained to do. “Yeah, you just dump it [the food and water] out. Cut it. Step on it,” he said. Mario’s account adds to evidence gathered by the humanitarian aid group No More Deaths, which released a report this year documenting thousands of vandalized water bottles between 2012 and 2015, and video of more recent incidents (I volunteered with the organization and was part of the team that wrote the report. After the report was published, nine volunteers with No More Deaths were hit with federal charges for leaving water in a federal wilderness preserve — including Warren, the academic whose arrest motivated Mario to come forward.) The Border Patrol’s rationale for destroying supply drops was that if they deprived migrants of water and food, they would have to turn themselves in. Taking away water in the desert, however, means putting lives in serious danger; 412 migrants were found dead along the border in 2017, according to the International Organization for Migration, and over 7,000 bodies have been discovered over the past two decades.

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Illustration: Simón Prades for The Intercept


“Tonk” was a part of everyday lexicon in the agency, said Mario. “Agents would laugh, joke around, [and ask], ‘How many tonks did you catch today?’” He explained that “they laugh about this because if you use an intermediate weapon like [pepper] spray, Taser, or a baton, policy says you have to write a memo. But if you use a flashlight, you don’t have to write a memo, so it was always common knowledge: Use your flashlight.” Besides “tonk water,” agents also used the term “tonk lover” to refer to humanitarian aid volunteers.

Drug smugglers were “backpackers,” and migrants in distress seeking to turn themselves in were referred to as “give-ups.” Mario described a sense of competitiveness: Arresting “give-ups” was seen as less impressive than arresting “backpackers” or seizing drugs. Border Patrol agents labeled “pretty much … all immigrants as criminals and animals,” Mario said. “Tuning up” migrants meant to rough them up before bringing them back to the station. Agents were trained in how to “break” migrants so they would divulge who among them was the guide. “You have to put fear in them,” Mario said. The officer that trained him repeatedly explained to Mario and his unit that “sometimes you need to operate in the gray.”

Mario said that an agent once boasted about handcuffing two migrants together around a saguaro cactus as the agent searched for drugs. (Cantú told me he’d heard similar stories.) In another incident he witnessed, a burly senior officer, without provocation, repeatedly kicked three male migrants, trying to force a confession about drug trafficking. The agent, according to Mario, “laid [the migrants] on the floor,” and then began “kicking the guys asking them where the dope was. Kept kicking them, kept kicking them.” No confession came, and no drugs were found.

His field training officer repeatedly explained to Mario and his unit that “sometimes you need to operate in the gray.”

Mario said that when he was in the Border Patrol academy, it was taught that “as soon as [migrants] pick up a rock and it goes over their head, you can light them up however you want. It’s fair game.” By “light them up,” he meant shoot to kill. The Border Patrol says it has made its guidelines for the use of force more restrictive in recent years, but there have still been recent instances of fatal shootings, including the killing of Claudia Patricia Gómez González, a 20-year-old Guatemalan woman who was shot at the border in Texas this May. The Border Patrol initially described González as part of a group of “assailants” that had attacked an agent “using blunt objects.” Later statements contradicted that account.

Under the Trump administration, the Border Patrol and Customs and Border Protection have been accused of illegally turning back asylum-seekers, spreading falsehoods about the asylum process, or not following the proper procedures to determine if someone is afraid of returning to their home country. According to Mario, this latter practice used to be common.

Agents refer to the processing of migrants at Border Patrol stations as “rolling” them; it includes taking migrants’ basic biographical information, cataloguing their property, and then fingerprinting and photographing them. Customs and Border Protection protocol says that agents should also try to determine whether the migrant might have an asylum claim, even if they don’t ask for protection outright. According to the policy, they should “explore any statement or indications, verbal or nonverbal, that the alien actually may have a fear of persecution or torture on return to his or her country.” The agents must also “fully advise” the migrant of the asylum process.

“We never ask that,” Mario said. “We were just, ‘What’s your name? Is this your real name?’ What country they’re from …” When I pointed out that Border Patrol agents were obligated to ask about potential asylum claims, he responded: Yeah, you are. But it’s kind of like … We would kind of lead the witness,” convincing migrants to agree to “voluntary return,” a quick deportation process that only Border Patrol can perform, which requires minimal paperwork and yet may negatively impact future claims for legal status in the United States. I asked if he had been trained or coached in “leading the witness.”

“Well yeah,” Mario said, “you’re kind of thrown in, like baptism under fire. They don’t give you a class in processing aliens. The guy that you’re relieving tells you, Hey, this is what you’re going to do, this is how I do it.”

The abuse Mario witnessed wasn’t only directed at migrants. Mario said that the same abusive senior officer had once humiliated and then physically assaulted a junior agent in his training unit. It was common for the officers in charge of training to force the junior agents to draw maps of the area they had been working in; one day, one of the agents was having a hard time with the task, so the officer called the agent to the front of the class and began to berate and punch him.

“I mean closed fist, pound him right on the chest, like, ‘Are you not getting this?’” Mario said. “‘Are you stupid? What is wrong with you? You need to quit. You’re not built for this. You’re an idiot. I don’t want you in my patrol,’” Mario remembers him saying. The assault continued to the point where the junior agent fell back and shattered a fire extinguisher’s glass panel.

“I was kind of shocked,” Mario said, “and I knew that if I stepped in, that I would be next, so I kind of left it at that.” But the incident didn’t sit right, and Mario decided to report it to the Office of Inspector General. He called the watchdog’s office in Los Angeles and explained to an agent over the phone not only about the assault, but also about other officers encouraging agents to commit time-sheet fraud and manipulate the fuses on their trucks so they could drive at night without headlamps (Mario did not file a written complaint, but The Intercept has viewed his notes showing dates, phone numbers, and the names of the people he contacted. Tomsheck also said he’d seen reports of “inappropriately aggressive” behavior in training sessions.)

A few weeks later, according to Mario, a representative from the Inspector General came to speak to his unit, interviewing all the agents except for Mario. The investigative method singled him out and “ever since,” Mario explained, “I was kind of like the pariah in the station, and I felt like I was targeted.”

The issues were not only with one particular officer, Mario said. He pointed to the horse patrol, saying that it was “notorious for beating up illegals. … Most of those guys were under investigation for use of force.” When abusive officers were disciplined, they were usually temporarily reassigned to the “rubber-gun squad” — desk or garage jobs — “and then you’d be clear and you’d be back on duty.”

In response to Mario’s allegations, the Border Patrol acknowledged that “like any organization … periodically there will be elements in the workforce that succumb to corruption. When that occurs CBP acts decisively and appropriately.” They also pointed to new policies for training, reporting, and investigating excessive use of force articulated in the policy guidelines updated in 2014.

For Mario, the encouragement to “operate in the gray” summed up the attitude of the Border Patrol — operating outside of the law. He described some of the actions of Border Patrol as “borderline inhumane.” Though he remained with agency for another year, after witnessing the officer kick the water out of the child’s hands, he first thought to himself, “This place is not somewhere I want to be. I’m going to go to another agency.”

The post “Kick Ass, Ask Questions Later”: A Border Patrol Whistleblower Speaks Out About Culture of Abuse Against Migrants appeared first on The Intercept.

McDonald’s Workers Are Striking Against Sexual Harassment — Tying #MeToo to Their Labor Struggle

FILE - In this Nov. 29, 2016 file photo, protesters gather outside a McDonald's restaurant in Minneapolis during a demonstration for higher wages as part of the National Day of Action to Fight for $15. On Tuesday, May 22, 2018, Fight for $15 is announcing that it’s helping women in several U.S. cities to file complaints with the U.S. Equal Employment Opportunity Commission alleged they experienced sexual harassment while working at McDonald’s. (David Joles/Star Tribune via AP, File)

Protesters gather outside a McDonald’s restaurant in Minneapolis during a demonstration for higher wages as part of the National Day of Action to Fight for $15 on Nov. 29, 2016, in Minneapolis, Minn.

Photo: David Joles/Star Tribune/AP

When Kimberly Lawson was first sexually harassed while working at McDonald’s in Kansas City, she did exactly what she was supposed to do. A co-worker, she said, had hit on her “constantly,” made lewd comments, and touched her inappropriately. “I filed a complaint, but nothing was done,” said the 25-year-old single mother of one. “He kept working on the same shifts as me.” When Lawson’s shift manager also began tormenting her with verbal sexual remarks, she didn’t even bother filing a complaint.

Galvanized by experiences like these, Lawson, who earns $9 an hour, joined with McDonald’s workers from 10 cities to organize a daylong strike on Tuesday. It will be the first nationwide strike specifically targeting sexual harassment in the workplace. The labor action also charts a new course for #MeToo, which has mostly featured women in high-profile and white collar industries. The strike marks a notable step toward shifting #MeToo into a movement inclusive of — and organized by — low-wage workers against corporate America. Coordinated as a part of the Fight for $15 movement, the strike makes clear that the battle against sexual harassment and assault is inextricable from a broader labor struggle.

“It’s historic. Women are coming together and standing up — and creating hope for other women across the country.”

“It’s historic,” Lawson told The Intercept. “Women are coming together and standing up — and creating hope for other women across the country.” Lawson, herself a Fight for $15 organizer, was shocked to learn how many fellow McDonald’s workers had shared her experiences.

For workers in the service industry, sexual harassment and violence is the norm, not the exception. A 2014 survey from the worker advocacy group Restaurant Opportunities Centers United found that nearly 80 percent of women in the industry had experienced some form of sexual harassment from co-workers, as had 70 percent of men. Eighty percent of women and 55 percent of men reported sexual harassment from customers. LGBTQ workers were particularly affected, the survey found.

This sort of endemic work-based abuse — affecting a largely low-wage and precarious workforce — cannot be fought with the tactics with which #MeToo found early success. Celebrated and professionally established women calling out powerful perpetrators gave important voice to the struggle against patriarchal violence and slayed some formidable giants. But it was never scalable as a tactic for workers without an audience and with little leverage over their employers. The decision to strike, therefore, is a crucial deployment of the one leverage workers do have: a collective and visible withdrawal of labor.

“These are low-wage workers. They are the most vulnerable. They need these jobs, and the jobs themselves pay the lowest: $7.25, $8, maybe $9,” said Mary Joyce Carlson, a labor lawyer providing counsel for Fight for $15 and the McDonald’s workers. “Powerful men are not in their universe and they don’t have celebrity power themselves. These workers are taking on a corporation. They have to act collectively.”

“An Exercise in Frustration”

Previous efforts to take on the fast food giant on the issue of sexual harassment have yielded few results in terms of shifting corporate behavior, Carlson told The Intercept. She filed numerous complaints with the Equal Employment Opportunity Commission on behalf of McDonald’s workers in 2016, but has seen no changes made by the corporation since.

Meanwhile, McDonald’s has maintained the line that it has “zero tolerance” for sexual harassment in the workplace — a claim belied by the countless instances that have been tolerated by virtue of inaction. “We have policies, procedures and training in place that are specifically designed to prevent sexual harassment at our company and company-owned restaurants,” the company said in a statement to the Associated Press, “and we firmly believe that our franchisees share this commitment.”

“It’s an exercise in frustration” said Carlson. It was the emergence of #MeToo this year, she explained, that opened up opportunities to further the fight. Both the walkout and further EEOC cases on behalf of McDonald’s workers this year have been backed by the Time’s Up Legal Defense Fund, a #MeToo-inspired legal aid group for workers who have experienced sexual assault. At the same time, McDonald’s workers involved in Fight for $15 efforts have seen the success of strikes and walkouts, including the role such tactics played in winning Disney World workers a $15 hourly wage.

While hundreds of McDonald’s employees have been attending weekly “women’s meetings” in advance of the strike, it’s not yet known how many people will walk off the job at noon on Tuesday, the designated time. Organizers expect strikes at numerous franchises in Chicago; Durham, North Carolina; Kansas City, Missouri; Los Angeles; Miami; Milwaukee; New Orleans; Orlando, Florida; San Francisco; and St. Louis.

No Unions at McDonald’s

“If these workers had a union, they would have somewhere to go with these complaints. Now there’s no safe place.”

Unlike the Disney workers, however, McDonald’s workers have no union representation — an issue that organizers believe has contributed to the pervasiveness of workplace harassment. “If we had a union, things like this wouldn’t happen so much,” said Lawson. Carlson echoed her point: “For one thing, if these workers had a union, they would have somewhere to go with these complaints. Now there’s no safe place. And with a union, there’s much less fear of retaliation.”

The fast food giant has been immovably hostile to unionization, hiding behind its franchise model to avoid corporate responsibility. As such, Tuesday’s action — like the powerful teachers strikes in West Virginia, Arizona, and beyond earlier this year — has no option but to be a wildcat strike, the term used for strikes that happen without permission from a union’s leadership. Nonetheless, Lawson told me that retaliation for the strike is not a concern for her: “We’re fearless.”

In striking on Tuesday, McDonald’s employees join a growing cohort of workers weaponizing the attention and energy accorded to #MeToo and the Women’s March into concrete collective action. Hotel workers took to the streets by the thousands to protest rampant sexual harassment in their industry — and won their demand for panic buttons from five major hotel brands. Farmworkers of the Coalition of Immokalee Workers went on a fast to push the restaurant chain Wendy’s to join the Fair Food Program and incorporate legally binding accountability measures for dealing with sexual harassment.

The McDonald’s strikers’ demands are clear and practical: improvements in procedures for how complaints are received and responded to; mandatory anti-harassment trainings for all managers and employees; a hotline which employees can call without the risk of retaliation; and a national committee to address sexual harassment, comprised of workers as well corporate and franchise representatives; and leaders of national women’s groups. Such demands should be easily met by a multibillion-dollar corporation, but then so, too, should paying workers a living wage with benefits. Those struggles, too, will continue to be fought.

The post McDonald’s Workers Are Striking Against Sexual Harassment — Tying #MeToo to Their Labor Struggle appeared first on The Intercept.

The Aftermath of Botham Jean’s Killing Shows Why We Need to Cope With the Community Trauma of Police Brutality

Demonstrators march around AT&T Stadium ahead of an NFL football game between the Dallas Cowboys and the New York Giants in protest of the recent killings of two black men by police, in Arlington, Texas, Sunday, Sept. 16, 2018. Botham Jean and O'Shae Terry were fatally shot by police in North Texas earlier in the month. (AP Photo/Brandon Wade)

Demonstrators march around AT&T Stadium in Arlington, Texas, ahead of an NFL football game on Sept. 16, 2018, in protest of the recent killings of two black men by police. Botham Jean and O’Shae Terry were fatally shot by police in North Texas earlier in the month.

Photo: Brandon Wade/AP

2018 has been an absolute bloodbath, not just for black folk in America, but for people of color around the world. Yet President Donald Trump dominates the headlines and the overwhelming barrage of news about him makes it easy for us to miss all the bigoted atrocities around the world. But we must not let these stories slip by.

2018 has been one of the deadliest years ever measured for police brutality in the United States, but most of us couldn’t name three of those victims if somebody paid us. The injustices surrounding the brutality are as bad as they have ever been.

A breathtaking 12,800 migrant children are currently being detained by this federal government — which is a 400 percent increase from last year and the highest number recorded in modern American history.

A bomb that was designed, built, and sold by an American company killed at least 40 children on a school bus in Yemen. Every agency studying the bombing now admits that the bombing was a “mistake.” That single “mistake” killed more children than were killed on 9/11 or in the Oklahoma City bombing.

In one single day this past May, Israeli snipers shot and killed at least 60 Palestinian protesters. By the end of the week, snipers shot and killed at least 119 Palestinians — including a heroic volunteer medic named Razan Al-Najar.

I could go on. I could weigh in on the horrendous spike in hate crimes across this country. I could talk about the epidemic of white people calling the police on black people who are simply living their everyday lives. That list is long. I could talk about the staggering number of nonlethal incidents of police brutality and false arrests that really go unmeasured and underreported simply because nobody died.

There’s a lot happening. But what I want to illuminate today was something that I find increasingly jarring.

Earlier this summer, a groundbreaking study was released that determined that when an unarmed African-American was killed by police, it has a horrible, measurable impact on the mental health of African-Americans. This, of course, may seem obvious. Yet what I found jarring was that the study determined that those same deaths — or even the deaths of unarmed white people by American police — don’t have any measurable mental health impact on white people.

I unpacked this study at a recent event and I think the results stung some good-hearted white people in the audience. The report isn’t saying that you don’t care. It isn’t saying that you aren’t bothered. It’s saying that by in large these incidents come and go, and your mental health remains firmly intact nonetheless.

I saw this all week with my own eyes, as some of my best friends and I worked hard around the clock to fight for justice for 26-year-old Botham Jean, who was shot and killed in his own home by Dallas Police Officer Amber Guyger.

My oldest daughter’s birthday was on Sunday. Mine is today. But all I have been thinking about is Botham Jean.

Spending as much time as I did on the case is part of what made this weekend particularly painful. My oldest daughter’s birthday was on Sunday. Mine is today. But all I have been thinking about is Botham Jean.

The same was true for scores of pastors and leaders and protesters who showed up to the Dallas Cowboys game on Sunday. They love sports as much as the next person. In fact, most of them grew up loving the Cowboys. Instead of going to a game — which many of them were already protesting because of the league has mistreated Colin Kaepernick and Eric Reid — they showed up with mourners, hearses, and coffins to eulogize not only Botham Jean, but also 24-year-old O’Shae Terry, who was shot and killed by an Arlington, Texas, police officer on September 1.

Black Dallas is grieving. And the city government made it 100 times worse by pretending to care about what happened to Botham Jean. That bubble burst when the city publicly released the fact that some weed was found in Jean’s apartment just a few hours after his beautiful funeral service. It was a devastating blow to his family and to the entire community — which was already on edge.

While other people can easily pivot and move on from these shootings and go watch a good, old football game, we can’t. It hurts too much.

I don’t just see this in Dallas. I see it in every big city in the country. The police violence, the hate crimes, compounded with all of the other issues related to race and poverty in America. How do we react? All I know is that we have to somehow figure out how to tuck our present pain in.

The post The Aftermath of Botham Jean’s Killing Shows Why We Need to Cope With the Community Trauma of Police Brutality appeared first on The Intercept.

Justice Department Attempts to Suppress Evidence That the Border Patrol Targeted Humanitarian Volunteers

Four volunteers with a faith-based humanitarian group drove onto a remote wilderness refuge in southern Arizona last summer hoping to prevent an unnecessary loss of life. A distress call had come in, a woman reporting that two family members and a friend were without water in one of the deadliest sections of the U.S.-Mexico border. For hours, the volunteers’ messages to the Border Patrol went unanswered. With summer in the Sonoran Desert being the deadliest time of year, they set off in a pickup truck, racing to the peak where the migrants were said to be.

Once on the refuge, the volunteers were tracked by federal agents, beginning a process that would lead to federal charges. Now, more than a year later, they each face a year prison, and Trump administration prosecutors are fighting to keep the communications of law enforcement officials celebrating their prosecution from becoming public.

The legal wrangling began this week, when the volunteers’ attorneys filed a series of motions urging Arizona Magistrate Judge Bruce G. Macdonald to dismiss the charges against them, citing allegations of selective enforcement and violations of international law, due process, and religious freedom. Attached to the motions were several exhibits, including text messages between federal law enforcement officials. Justice Department attorneys quickly moved to have the motions sealed, but not before The Intercept downloaded them from Pacer, the public-facing repository for federal court records.

The exhibits include text messages between a U.S. Fish and Wildlife Service employee and a Border Patrol agent, in which the Fish and Wildlife employee declares “Love it” in response to the prosecution of the volunteers. Described in the text messages as “bean droppers,” volunteers with the group No More Deaths and their organization are referred to by name in the communications between federal law enforcement officials, who describe, with apparent glee, the government’s “action against them.”

dropper-text-message-1536859576

Image: USA v. Deighan et al

Within hours of the exhibits being submitted Monday, Trump administration lawyers called on Macdonald to seal the text messages, on grounds that they contain “sensitive law enforcement information.” The government prosecutors also requested the sealing of a blank Fish and Wildlife permit application — available online — and documents turned over via a Freedom of Information Act request, citing the same justification. Attorneys for the defendants then filed an opposition motion, arguing that the government’s descriptions of the materials “strain credulity.”

The U.S. Attorney’s office in Arizona and the Border Patrol’s Tucson sector declined to comment on the motion to seal and claims made by the defendants’ legal team, citing the ongoing nature of the case.

In addition to the exhibits the government would like to have sealed, the motions filed this week provide the latest evidence that law enforcement actions taken against No More Deaths, an official ministry of the Unitarian Universalist Church in Tucson, are part of a campaign targeting the organization. In a sworn declaration, Robin Reineke, a cultural anthropologist and director of the Colibrí Center for Human Rights, an internationally renowned organization that repatriates the remains of migrants who die in the desert, described a meeting last summer in which a senior Border Patrol agent angrily told her that because of the bad press No More Deaths stirred up for his employer, the agency’s plan was to “shut them down.”

In an interview with The Intercept on Wednesday, Reineke described the meeting as “disturbing,” saying it spoke to a broader breakdown between nongovernmental organizations responding to the humanitarian crisis on the border and federal law enforcement, including a Border Patrol workforce emboldened by an administration set on pushing an already punishing immigration enforcement apparatus into overdrive.

Scott Warren stands next to a community mural project created by the Ajo Samaritans, one of the humanitarian aid groups he works with in the region.

Scott Warren stands next to a community mural project in Ajo, Ariz. The mural was created by the Ajo Samaritans, another one of the humanitarian aid groups he works with in the region.

Photo: Laura Saunders for The Intercept

Big and Wild

Currently, nine volunteers with No More Deaths are fighting federal charges for their work providing water and medical care in the Sonoran Desert, historically one of the most lethal migrant passageways on the planet. The most serious of those charges, including harboring and conspiracy, have been leveled against Scott Warren, an instructor at Arizona State University. Warren stands accused of providing two undocumented men with food, water, and a place to sleep over three days. He faces 20 years in prison if convicted. In addition to the felony case, Warren is one of nine No More Deaths volunteers to be hit with federal misdemeanor charges for humanitarian work on the Cabeza Prieta National Wildlife Refuge over the last year.

The U.S. Fish and Wildlife Service itself describes Cabeza Prieta as “big and wild” and “incredibly hostile to those that need water to survive,” with a “56-mile border with Sonora, Mexico, [that] might well be the loneliest international boundary on the continent.” According to the Office of the Medical Examiner in Pima County, 33 sets of human remains were found on the refuge last year alone, adding to the more than 8,000 sets of human remains found along the border since the U.S. government began funneling migrants into the desert over two decades ago.

In the case in question, four No More Deaths volunteers — Caitlin Deighan, Zoe Anderson, Logan Hollarsmith, and Rebecca Katie Grossman-Richeimer — say they were doing everything in their power to prevent that grim toll from expanding when they were targeted by law enforcement.

On July 19, No More Deaths received a distress call from a woman in Phoenix reporting that two of her cousins and a friend were in need of help on the refuge. Volunteer Jesse Ferrell filled out the intake form. The woman told Ferrell that the group had built a bonfire to attract help the previous night and that by the following morning, they had run out of water. The men called the Mexican consulate in Tucson, the woman said, and were told to call 911. They did so, she added, but were told by the operator that nothing could be done. They would need to communicate with an immigration-specific office.

In Arizona, the Border Patrol’s Missing Migrant Initiative requires 911 dispatchers to transfer calls from migrants in the desert to a Joint Intelligence and Operations Center in Tucson. For years, the MMI program has been managed by two agents in the Border Patrol’s Tucson sector: Mario Agundez and Pedro Alonso Jr. The documents submitted in court this week show Ferrell first emailing Agundez at 1:57 p.m., then again roughly a half-hour later, at which point Agundez was told that the migrants were at a well-known peak as recently as the previous night, and that they were out of water. The email thread indicates Agundez first responded to No More Deaths more than seven hours after the group’s initial email was sent.

According to Reineke, slow responses to distress calls have become standard with the Border Patrol, and with Agundez specifically. In the declaration she submitted this week, Reineke explained that in years past, her organization “worked closely” with agents from the Border Patrol’s Search, Trauma, and Rescue teams, otherwise known as BORSTAR. “Over time, however, we learned that BORSTAR was generally unresponsive to calls for distress,” Reineke said. “Even in cases of a distressed migrant who had been seen within an hour of the rescue call.”

It was the same in cases where Border Patrol was provided a map of the migrant’s last known location, Reineke added. “BORSTAR would not initiate search and rescue operations — at times affirmatively denying the request to us in writing, and at other times simply not responding to the request.” Based out of the Office of the Medical Examiner in Pima County, the team at Colibrí stopped forwarding distress calls to BORSTAR in 2015, Reineke said, in part because of a “particularly poignant” case in which Agundez reportedly refused a desperate wife’s request to initiate a search for her husband.

In place of BORSTAR, Reineke said, Colibrí began forwarding its distress calls to No More Deaths. Recently, she explained, she has observed a marked change in the Border Patrol’s treatment of the organization. On June 12, 2017, the Border Patrol raided a camp that No More Deaths has used to provide medical aid for migrants for more than a decade, following a tense three-day standoff and leaving with five undocumented men it had tracked to the location in tow. As The Intercept reported at the time, No More Deaths volunteers saw the operation as a message from the Border Patrol that things would be different under the Trump administration. Reineke happened to have a prescheduled meeting with Agundez and his partner, Alonso, a week after the raid took place.

“I expressed my anger and dismay that agents would raid a humanitarian aid station in the desert during a heatwave,” Reineke said in her declaration. Agundez’s response was “angry” and “defensive,” she said. “He referred to the negative press against the Border Patrol generated by No More Deaths, and said they had ‘gone too far,’ that ‘they have messed with the wrong guy.’” Reineke added, “He told me the agency had intentions to ‘shut them down.’”

In an interview Wednesday, Reineke told The Intercept that she had called for the June 21 meeting with Agundez and Alonso Jr. after receiving upsetting reports from officials at two Latin American consulates that the Border Patrol had been discouraging them from cooperating with Colibrí. It was in that tense context, Reineke said, that the Border Patrol’s raid on the humanitarian aid camp came up. Agundez’s response left Reineke with a clear impression. “My impression was hostility to No More Deaths,” she said.

“I got a really strong sense of retribution, revenge — he didn’t like what No More Deaths was saying to the press about Border Patrol,” she added. “I really got the strong impression that he wanted to see the camp shut down and gone.”

Unauthorized Driving

When the four No More Deaths volunteers entered the Cabeza refuge last July, they were followed by a Border Patrol agent. A senior refuge official overheard what was happening via radio and called a Fish and Wildlife officer to respond. As this week’s motions note, both sides in the case acknowledge that the No More Deaths volunteers, once stopped by law enforcement, explained that they were on the refuge in search of three people in distress, that they lacked permits, and that they “did not see the signs labeling the road as an administrative road because they were in a hurry to search for the three distressed individuals.”

More than five months would pass before the government formally charged the group with federal misdemeanors related to unauthorized driving and entering the refuge without a permit. Ultimately, two of the migrants reported missing were found by a pair of Border Patrol agents stationed in Ajo, Arizona, and a Yuma-based Customs and Border Protections helicopter crew that established communications with the No More Deaths volunteers. The third individual was never found.

Although charges were not brought for months, Cabeza Prieta officials did not waste time in flagging the No More Deaths volunteers as troublemakers. According to internal communications obtained by The Intercept via a Freedom of Information Act request, Mary Kralovec, then-assistant refuge manager at Cabeza Prieta, sent an email to colleagues and counterparts at the Fish and Wildlife Service and the Air Force (which manages the nearby Barry Goldwater bombing range), the day after the rescue operation, highlighting the four volunteers as “individuals who we are not issuing access permits to.”

A little more than a week later, on July 28, Margot Bissell, a visitor services specialist at Cabeza Prieta, began sending a series of text messages that are now at the center of the disclosure fight in the No More Deaths volunteers’ case. According to the motions filed this week, Bissell’s messages were sent to a Border Patrol agent who at this point remains unnamed. The exchange begins with Bissell writing, “Cry me a river – me too,” followed by a laughing emoji. While the context of the comment is unclear, the following message is not.

“They have been very quiet since we started action against them … Until last week,” Bissell wrote. She then asked, “Did you hear about the group at the Charlie Bell well?” — referring to the location where the No More Deaths volunteers were encountered.

“Oh yeah,” the agent replied. “That really sparked everything back up.”

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Image: USA v. Deighan et al

“Love it,” Bissell wrote. “One lady was arrested, trying to tear the camera off! Oh my gosh! Then she went down there again! The next day.” Three days later, the agent wrote again: “Let me know of [sic] anymore [sic] bean droppers come around”. Having recently returned to work, Bissell wrote that she “heard 8 of them showed up last week wanting permits. 3 of them were on the do-not-issue list.”

“They acted so surprised,” she wrote, adding a frowning emoji. The agent said they would “try to figure out who they are.” Bissell responded by providing the two names she had. “Heard we are pressing charges against Scott Warren,” she added. The agent said they heard the same. Months later, in October, Bissell messaged again. “They’re baaaack….!” she wrote. “A ton of No More Deaths last two days in here getting permits.”

“Sweet,” the agent replied. “You got any new info or names.” Whether Bissell replied is unclear.

An email to Bissell’s work address seeking comment on her texts generated an out of office reply. Her supervisor, Sid Slone, did not respond to a request for comment.

The disclosure of the text messages comes three months after The Intercept was first to report on a series of communications and internal reports between Border Patrol agents involved in Warren’s felony arrest. Those materials included talk of an open investigation into No More Deaths as an organization and cited the raid on the No More Deaths camp that Agundez referenced with Reineke as the beginning of that effort.

The inclusion of those communications in pretrial motions, which also included law enforcement text messages, angered Trump administration attorneys: In the words of one individual close to the case, the government’s attorneys were “fucking pissed.” The prosecutors successfully lobbied to have the materials sealed after The Intercept reached out to Justice Department for comment, but before the article was published.

Selective Prosecution

For attorneys representing the No More Deaths volunteers, there is now little question that federal law enforcement in southern Arizona has taken a particular interest in targeting the organization. In addition to Reineke’s declaration, Fish and Wildlife Service records obtained by the lawyers, included in this week’s motions, revealed that from 2015 to 2018, agents with the land management agency issued 14 citations for various violations of federal regulations or law in the Cabeza Prieta refuge.

“None of these incidents were referred for prosecution or prosecuted, except for those involving No More Deaths volunteers,” the attorneys noted, including the four defendants cited in connection with last summer’s search and rescue operation.

Other groups that do search and rescue work were not similarly cited, the lawyers added. The difference between No More Deaths and those organizations, they argued, is that No More Deaths publicly critiques the Border Patrol and U.S. border enforcement policies. “Thus,” attorneys for the volunteers contended, the Fish and Wildlife Service’s “own records indicate that defendants were subject to enforcement action as a result of their affiliation with an organization speaking out against the government’s immigration policies and conduct.”

Last summer, as the number of remains recovered on Cabeza Prieta reached record highs, land managers tweaked permit applications for the refuge, requiring applicants to explicitly agree to not leave food, water, or clothing on the refuge. No More Deaths saw the change as a direct attempt to undermine their efforts to provide lifesaving aid in a place where people are clearly dying. Their attorneys say the change was illegitimate, arguing that the land managers failed to publish the new permit language in the federal register, “nor was it subject to public notice and comment procedures as required by the Fish and Wildlife Service Manual and the Code of Federal Regulations governing the Service’s rulemaking.”

The enforcement of permitting rules stemming from “illegally-amended language” against No More Deaths volunteers alone amounts to violation of an international smuggling protocol the U.S. ratified in 2005, the attorneys say. The protocol requires that the state cooperate with nongovernmental organizations “in protecting and preserving the human rights of smuggled migrants,” the attorneys noted. But it goes deeper than that, they argued. By seeking to imprison a group of humanitarian volunteers over their efforts to save three people in the desert, the state had entered into dark territory reserved for the worst regimes, the attorneys contended.

“Common decency requires that a government do what it can to prevent unnecessary death and suffering inside its borders,” the lawyers argued in the motions filed this week. “To actively thwart efforts of its citizens to assist those in need through the provision of the most basic necessities — emergency food and water — is cruel and shameful behavior. And to threaten to imprison citizens for searching for distressed migrants stranded in highly dangerous locations — generous, humane actions the government should encourage and applaud — is unconscionable. It violates the universal sense of justice.”

In the southern Arizona, a place with a long and vibrant history of humanitarian aid work in the desert, the combination of arrests, raids, and prosecutions has had a profound effect. When asked to describe the current state of relations between those groups and law enforcement, Reineke, the veteran anthropologist at Colibrí, offered two words: “Completely broken.”

Top photo: The U.S. Customs and Border Protection station in Ajo, Ariz.

The post Justice Department Attempts to Suppress Evidence That the Border Patrol Targeted Humanitarian Volunteers appeared first on The Intercept.

How a Ragtag Group of Oregon Locals Took On the Biggest Chemical Companies in World — and Won

The people who wrote an ordinance banning the aerial spraying of pesticides in western Oregon last year aren’t professional environmental advocates. Their group, Lincoln County Community Rights, has no letterhead, business cards, or paid staff. Its handful of core members includes the owner of a small business that installs solar panels, a semi-retired Spanish translator, an organic farmer who raises llamas, and a self-described caretaker and Navajo-trained weaver.

And yet this decidedly homespun group of part-time, volunteer, novice activists managed a rare feat: They didn’t just stop the spraying of pesticides that had been released from airplanes and helicopters in this rural county for decades. They also scared the hell out of the companies that make them, according to internal documents from CropLife America, the national pesticide trade group. Although some of the world’s biggest companies poured money into a stealth campaign to stop the ordinance, and even though the Lincoln activists had no experience running political campaigns, the locals still won.

The Lincoln County aerial spray ban, which passed in May 2017, is just one of 155 local measures that restrict pesticides. Communities around the country — including Dubuque, IowaReno, NevadaSpokane, Washington; and Santa Fe, New Mexico — have instituted protections that go beyond the basic limits set by federal law. Some are aimed at specific pesticides, such as glyphosate, others list a few; while still others ban the chemicals altogether. In the three decades after the first local pesticide restriction was passed in 1970 in Maine, the bans came in a slow trickle. These days, they are coming in a flood, with towns and counties passing more of these measures in the past six years than they did in the 40 before that, according to data from the advocacy group Beyond Pesticides.

The uptick in local legislation is a testament to public concerns about the chemicals used in gardening, farming, and timber production, and reflect a growing frustration with federal inaction. In recent years, scientific research on pesticides has shown credible links between pesticides and cancer, endocrine disruption, respiratory illnesses and miscarriage, and children’s health problems, including neurobehavioral and motor deficits. As scientists have been documenting these chemicals’ harms, juries have also increasingly been recognizing them.

But federal regulation has lagged behind both the research and public outrage. Notably, the Environmental Protection Agency has allowed glyphosate, the active ingredient in RoundUp, to remain in use despite considerable evidence linking it to cancer. Under Donald Trump, the EPA also reversed a planned ban of chlorpyrifos, a pesticide linked to neurodevelopmental problems in children. Frustrated by the lack of federal action, many people have turned to their towns and counties, only to find that they have been hamstrung by state laws forbidding local limits on pesticides.

In 43 states, laws prevent cities, towns, and counties from passing restrictions on pesticide use on private land that go beyond federal law. A provision in the Farm Bill now before Congress would extend that restriction to the entire country and could potentially roll back existing local laws. The House version of the bill that passed in June and is now being reconciled with the Senate version included a section that prevents “a political subdivision of a State” from regulating pesticides.

The measure is one of several “anti-environmental provisions” in the bill “that threaten public health,” according to a letter from 107 House members. The Republican-backed attempt to clamp down on local governments also flies in the face of the party’s rhetoric, according to Scott Faber, vice president of governmental affairs at the Environmental Working Group.

“Hypocrisy is not a strong enough word for Republicans working to block local public health ordinances designed to protect children,” said Faber. “It’s a party that more or less exists to empower local government to make decisions.”

While the industry is hoping to tighten its already fierce grip on localities through federal law, it’s also waging a stealth campaign against local “brushfires,” as CropLife America refers to the local attempts to restrict and ban pesticides. In Lincoln County and elsewhere, the national trade group is quietly putting its vast resources into fighting local activists through opposition research, monitoring their social media, and trying to stop opposition to pesticides from spreading to other communities.

OREGON COAST, OR - SEPTEMBER 8: Rio Davidson perches on a stump to a better view of clear cutting. September 8, 2018 (Photo by Beth Nakamura For The Intercept)

Rio Davidson perches on a stump to a better view of logging land along the Oregon coast. Davidson, who owns a solar panel company, is one of several locals who volunteer with Lincoln County Community Rights.

Photo: Beth Nakamura For The Intercept

“Tier 1 Concerns”

While the campaign for the aerial pesticide ban in Lincoln County was being run on the cheap, opposition to the measure, which was ultimately voted on by fewer than 14,000 Lincoln County residents, came from some of the world’s biggest companies. CropLife America, the industry group, which reported more than $16 million in revenue in 2015 and represents and collects dues from the major pesticide manufacturers, including Monsanto, Syngenta, Dow AgroSciences LLC, and DuPont Crop Protection, ranked state and local issues as the top of its list of “tier 1 concerns” for both 2017 and 2018, according to internal documents obtained by The Intercept that pinpointed Oregon as ground zero for the fight.

Teaming up with Paradigm Communications, a division of the U.K.-based public relations firm Porter Novelli, CropLife America launched a national campaign to provide “intense levels of support where the most dire battles are,” according to a state activities memo prepared for the CropLife America 2017 annual meeting, showing that Paradigm had spent 44 percent of its budget for this effort in just two Oregon counties: Lincoln and Lane, its neighbor to the south.

The industry group’s work to fight the local campaigns in Oregon included holding two “meetings to organize Protect Family [sic] Frames and Forests” — a group that was central to opposition to the ban in Lincoln County; creating and testing messages; conducting a “brainstorm session for potential activates”; setting up meetings with key players in the county; conducting “Sentiment Research,” holding trainings in media, social media, and public speaking; creating direct mailers, a logo, and a website; doing “social media research” on voters; creating a “Facebook strategy,” which included a Facebook page and a “secret Facebook Page”; writing a script for door knocking; creating talking points; writing and editing 15 letters to the editor; and “auditing strategies” of three groups involved with the local laws — including the Oregon-based environmental group Beyond Toxics and the Community Environmental Legal Defense Fund, which the CropLife America documents referred to as “CEDF.”

While the national industry group paid for all this, its name never appeared on the materials or was referenced in the local fight, which was instead framed as being led by local farmers.

The industry has also been waging surreptitious campaigns outside of Oregon. In Boulder, Colorado, which voted last year to phase out neonicotinoid pesticides and GMOs on public land, the CropLife America and Paradigm Communications team worked behind the scenes to push back the date that the phaseout would take effect and conducted “adversary research,” according to the CropLife document.

CropLife America and Paradigm Communications also conducted adversary research in Washington state, where they spent another 29 percent of their budget. In Washington, their tactics also included building “out geo-focused Facebook Groups to establish internal communications” and holding a four-day training for nearly 50 people that included sessions on “how to interact” and “how to read body language.”

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Barbara Davis and Rio Davidson walk along a logging road on land owned by Weyerhaeuser along the Oregon coast mountains. September 8, 2018 (Photo by Beth Nakamura For The Intercept)

Barbara Davis and Rio Davidson walk along a logging road on land owned by Weyerhaeuser along the Oregon coast mountains on Sept. 8, 2018.

Photo: Beth Nakamura For The Intercept

Volunteering to Fight Pesticides

Lincoln County Community Rights doesn’t have an office, so the group often holds its meetings in members’ homes, which are scattered throughout the county’s more than 1,000 square miles of forest and coastline. On a recent Friday, it was Debra Fant’s turn to host. A retired nurse whose house near the coast is surrounded by tall spruce, hemlock, and fir trees, Fant made quiche for the occasion.

As her fellow advocates sat eating around her dining room table in flip-flops and T-shirts and their dogs nosed around for crumbs on the floor, Fant thumbed through records of the group’s expenses. There weren’t many. Almost all of their work is done for free. Fant herself volunteers about 20 hours a week, emailing and making calls as well as managing the group’s social media. John Colman-Pinning, a farmer who grows organic vegetables and raises a small herd of llamas, does research for the group in his spare time. And Rio Davidson, who owns a solar panel company, designed and maintains the group’s website and Facebook page.

Barbara Davis, an intensive care nurse, considered herself apolitical before she began volunteering for the group a few years back. Davis moved to the area from Reno, which had felt overdeveloped and far from nature. Lincoln County, which is 90 percent forest and has no big cities, seemed the perfect antidote. “We came here in 2004 thinking it was clean and green,” said Davis. Learning about the spraying changed her feelings about her home.

The Forest Service banned aerial spraying in national forests in 1984, in part due to a fierce battle over the issue in Lincoln County. But timber companies still regularly apply herbicides and fungicides from airplanes onto private land here, Davis discovered. The chemicals are used to eliminate plants that compete with trees before clearcutting, a practice used in the timber industry to uniformly remove all the trees in an area. Among the chemicals they spray are 2,4-D and glyphosate, respectively labeled possible and probable carcinogens by the World Health Organization, and atrazine, an endocrine disruptor. Aerial application of the chemicals is cheaper than employing people to apply it from the ground or pull weeds by hand. But it allows the chemicals to drift over large areas, affecting water supplies, and the health of people and animals.

OREGON COAST, OR - SEPTEMBER 8: Barbara Davis is part of the group Lincoln County Community Rights, who were able to get an ordinance passed to stop the aerial spraying of pesticides. September 8, 2018 (Photo by Beth Nakamura For The Intercept)

Barbara Davis looks over clearcut land near the Siletz River, along the Oregon coastal mountain range.

Photo: Beth Nakamura For The Intercept


Davis began reading — and worrying — about the health effects of pesticides. Although she had previously shied away from difficult political conversations, she began driving her old Honda around the county with a hand-scrawled “public health or corporate wealth” sign in its back window to promote the ordinance. Davis met with little resistance when she explained that it would reduce pesticide exposure, as well as the health problems she feared it was causing around the county.

Judging from the conversations she struck up as she distributed leaflets, many of her fellow Lincoln County residents shared her concern. “I would start knocking on doors in my neighborhood and they’d start telling me about their cancer stories,” Davis said. “I had two neighbors down the road who died of brain cancer. Nobody can prove cause and effect, but I connected it to the spraying — and a lot of other people did, too.”

The group decided to highlight stories of some of the people who had suffered from pesticide exposure. One of its mailings featured Loren Wand, a local farmer and landscaper whose wife, Debra, had been sprayed by pesticides from a helicopter in her 20s. “Prior to getting sprayed, she looked like Ali MacGraw,” Wand told me recently. Directly afterward, Debra developed respiratory problems that gradually worsened. Her health steadily deteriorated and she died of cancer at age 44. “I have no question the spraying was related,” said Wand, who doesn’t use pesticides in his farming or landscaping businesses.

But while the members of Lincoln County Community Rights were talking about the human consequences of pesticide use, their opponents were pushing out their own message. Three local business owners who rely on pesticides argued that the ordinance threatened their families’ legacy by taking “away essential tools to prevent the spread of invasive species.” Others argued that the ban would increase farmers’ expenses. And Oregonians for Food & Shelter, a statewide organization, felt that “counties really lack the expertise” to regulate pesticides, as Scott Dahlman, the group’s policy director, told me. “It’s why we have state agencies that handle that.”

The ban’s opponents didn’t tackle the health questions, focusing instead on one of the law’s provisions that spelled out citizens’ rights to use “direct action” to enforce the ordinance if necessary.

Who’s Afraid of Direct Democracy?

The group remains split on the wisdom of including the direct action provision, which a county judge ultimately decided was the one part of the ordinance that should not be enforced. Maria Sause, the part-time translator who helped write the aerial spray ban, felt the language clarifying people’s rights to enforce the law corrected an existing power imbalance. “We’re being accused of being eco-terrorists,” Sause said. “But the way the laws are right now, the corporations have priority over the citizens’ right to defend their own health and safety. That’s terrorism.”

For his part, Davidson thinks the group shouldn’t have included the phrasing that gave citizens the right to enforce the ordinance because it resulted in their being tarred as dangerous extremists. “At least we could have put in nonviolent direct action,” he said of the language, which he noted was added in the last week before the measure was submitted.

In any case, much of the opposition to the ban focused on its direct action provision, arguing that it showed that people who wanted to limit pesticides were dangerous radicals. The opposition group created by CropLife America — and given the environmentally friendly-sounding name Protect Family Farms and Forests — produced videos warning that the ordinance would allow “anyone to take the law into their own hands with no legal consequences.” On Facebook, the group warned about the possibility of “trespassing, vandalism, destruction of property, and even bodily harm,” should the law take effect.

While the activists had no experience crafting campaigns and very little money to pay for outside help, Protect Family Farms and Forests seemed to have ample resources to effectively push out their message.

“They were trolling us pretty hard. Any time we had a radio interview, they would come out with a press release two hours later bashing us,” said Davidson. “Every single website you go to would have their ads running. They paid for advertising everywhere. Radio, TV, internet.” And while both sides had dueling Facebook pages, opponents of the ban also bought ads on the site. “Even when you were on our page, you’d see ads for theirs,” said Davidson.

Protect Family Farms and Forests also mailed fliers about the dangers of the ordinance to everyone in the county, including Colman-Pinning, the llama farmer. Although they were designed to raise opposition to the ban, Colman-Pinning saw the glossy mailers describing the ban as an assault on family farms as a call to action. “It was really smarmy stuff,” said Colman-Pinning. “Karl Rovian.” And it was voluminous. “They sent out eight direct mails to every one of ours.”

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One of the flyers mailed out by Protect Family Farms and Forests to residents of Lincoln County.

Photo: Courtesy of Barbara Davis

Unreported Campaign Contributions

In a meeting of CropLife America’s board of directors held last September in Laguna Nigel, California, Paradigm Communications presented its activities in Oregon as a success. A briefing document for the meeting listed their campaign in Lincoln County as one of five major accomplishments of 2017.

Poll numbers listed in the state activities memo (which at first incorrectly places the effort in Lane County) showed that opponents of the spray ban were initially lagging by 26 points. “Through a combination of messaging and on the ground activates we were able to close that gap to zero,” the memo notes. “The methods used to fight the battle in Lincoln County showed that with intense training and local involvement; we can move large portions of the voting population.”

Yet in Lincoln County, where the spray ban is now in effect, the fight over the ordinance can also be seen as an illustration of the exact opposite point: that a small, committed band of people can restrict the use of pesticides even when their resources are dwarfed by those of their opponents. The ordinance passed by 61 votes in May of last year despite the contributions of powerful groups, including the Fertilizer Institute, the Koch-supported Oregon Forest Industries Council, more than a dozen local farm bureaus, DuPont, and Oregonians for Food and Shelter — a group created in 1980 to “do battle with activists seeking an initiative to ban the aerial application of forest herbicides,” according to an archived page of its website.

Exactly how much was spent fighting the local ban is unclear. According to state records, supporters of the ordinance, who created a separate nonprofit called Citizens for a Healthy County in order to be able to lobby, received $21,600 in cash and in-kind contributions, most of them small gifts from individuals, including several members of Lincoln County Community Rights. Meanwhile, the group formed to lobby against the ban, the Coalition to Defeat 21-177, received more than $475,000 in contributions, much of that from farm bureaus and industry groups.

But the total amount of contributions to the Coalition to Defeat 21-177, which represents 22 times the contributions to the ban’s proponents and about $34 spent for every voter, doesn’t reflect any expenditures or services provided by CropLife America. The group’s internal documents show that it spent heavily to fight the ban in Lincoln County. The documents didn’t specify the total spent on its joint effort with Paradigm Communications, but they do show that CropLife America expected to spend more than $10 million on staff, consultants, and vendors in 2017 and clearly considered its work in Oregon a top priority. Yet none of the group’s spending on the ban was recorded in the Oregon Secretary of State’s database. State law requires public reporting of all contributions to campaigns over $750, including those from out-of-state organizations.

“I believe it’s a violation of both the spirit and letter of the law,” said Kate Titus, executive director of Common Cause Oregon, when alerted to CropLife America’s unreported expenditures on the Lincoln County ordinance. The state’s campaign finance law requires the reporting of anything of value given to influence the outcome of an election on a measure — whether it’s cash or services — to an online system run by the Oregon Secretary of State. “The intent of that is to make sure voters know who’s behind all the money in elections. Contributions to campaigns are supposed to be reported,” said Titus.

Dan Meek, a public interest attorney based in Portland, Oregon, agreed that CropLife America’s failure to report its spending to fight the ordinance was a violation of state law. “Every contribution has to be reported,” said Meek after being told of the spending. Meek, who began representing Community Rights Lane County last month, said that “everything the national group did is an illegal contribution” — whether the group was acting in conjunction with the organized attempt to defeat the ban or independently. “If they are found to be doing this willfully, it is also a felony.”

CropLife America did not return repeated phone calls or respond to emailed questions about its campaign. Porter Novelli also declined to comment for this story or answer specific question about its involvement with CropLife America.

OREGON COAST, OR - SEPTEMBER 8: The Siletz River, which runs through the Oregon's coastal mountain ranges. September 8, 2018 (Photo by Beth Nakamura For The Intercept)

The Siletz River, which runs through the Oregon’s coastal mountain ranges, was affected by aerial pesticide spraying.

Photo: Beth Nakamura For The Intercept

Communities Fight Back

Much of the opposition to pesticides in recent years has focused on enforcing existing laws, some of which establish buffer zones around schools, parks, and other areas in which pesticides cannot be used. But the groups in Oregon — along with others that have sprung up around the country — have taken another tack: changing the laws.

Like the ordinance in Lincoln County, a similar proposal in neighboring Lane County didn’t just specify that aerial spraying would be outlawed, it asserted people’s “inherent and inalienable right of local community self-government.” Both measures were inspired by the Community Environmental Legal Defense Fund, which views the aerial spraying of pesticides as violations of citizens’ basic rights to clean air, water, and soil.

CropLife America has taken a particular interest in the group, which was co-founded by Thomas Linzey and has distinguished itself by arguing not just for the rights of people, but the rights of nature itself. “That sounds hippie-dippy, but the fact is that pesticide applications affect ecosystems, rivers, and forests,” Linzey said when contacted by phone. The Community Environmental Legal Defense Fund was founded in 1995 and started off doing traditional legal work, such as enforcing statutes like the Clean Water Act and Clear Air Act. But the group switched to the community rights approach in 2001, out of frustration with their lack of progress. Since then, Linzey said, it helped pass more than 200 local ordinances in 10 states focusing on longwall coal mining, fracking, and large-scale water withdrawals, among other issues.

In Lane County, which reaches from the Pacific to the Cascade Mountains, the environmental group’s help has yet to yield any victories. An amendment to the Lane County charter that would ban aerial spraying of pesticides has been in the works for at least three years, but has yet to make it to a vote. Supporters of the ban gathered some 30,000 signatures, but a local judge ruled that the proposal couldn’t be added to the ballot after a timber industry supporter sued the county.

Michelle Holman, who has been fighting against pesticide use in Lane County for years, moved to rural Oregon to be closer to nature. But soon after she arrived in the late 1970s, Holman discovered that many local women were having health problems. Just among her own friends, she knew of four who had had miscarriages, two who had stillbirths, and one whose baby died shortly after being born. Holman herself wound up having 10 miscarriages.

“Nobody knows unequivocally why these things happen,” she said. But she came to focus on the pesticides that were sprayed from planes and helicopters in the area. And her gut sense that pesticides played a role in her repeated losses was bolstered by ample evidence linking pesticides with miscarriage.

Holman joined the board of Beyond Toxics, an Oregon group that was working on pesticides among other issues. “We did all the traditional activism — protests, calling agency people, writing letters, having agency people come here, going to corporate headquarters. But we were always told the same thing: This stuff has been tested and it’s legal.”

After Holman went to a presentation on community rights, she became convinced that only way to win the fight against pesticides was to change the laws — and helped found Community Rights Lane County. “I don’t think the planet has time for this incremental shit,” she said. “We need to ban the stuff.”

Unfortunately for Holman and the growing number of people now focusing on changing the laws that determine local control of pesticides, the companies that make these chemicals have already had the same thought. In 1991, after the Supreme Court ruled a town in Wisconsin could pass a ban on pesticide spraying that was more restrictive than the federal pesticide law, it became clear that communities around the country had the legal right to pass their own limits on pesticide use.

“We were really happy about the Supreme Court decision,” said Jay Feldman, executive director of Beyond Pesticides, an organization that formed that year to promote non-chemical pest management alternatives and help rid the world of toxic pesticides. But soon after the ruling, the industry launched a state-by-state campaign to pass laws that prevented other local pesticide limits.

Today, 43 states have some form of pesticide pre-emption law. Twenty-nine, including Oregon, have state laws that specifically prevent localities from adopting restrictions on pesticides that are stricter than the federal law. And 14 have a more limited form of pre-emption, in which a state commissioner or board manages pesticides — an option that Feldman says is “like giving the fox the henhouse.”

Implied Pre-emption

But even in states that don’t have laws specifically outlawing local restrictions, pesticide makers have sometimes succeeded in fighting them. In Hawaii, one of seven states without pre-emption laws, pesticides have become a huge health and environmental issue. Kauai, the fourth-largest Hawaiian island, which is a testing ground for several major pesticide manufacturers, has been particularly hard-hit. Dow, BASF, DuPont, and Syngenta sprayed 17 times more restricted-use insecticides per acre on cornfields there than on those in the U.S. mainland, according to a 2015 report from the Center for Food Safety. A recent study by the Hawaii Department of Agriculture found pesticides in 31 of 32 water samples on Kauai and Oahu, the island to its south. And a substantial number of honey samples on the island were also recently found to contain glyphosate.

In 2013, when he was a member of the Kauai County Council, Gary Hooser proposed a bill to limit the spraying of highly toxic pesticides near schools, homes, day care centers, hospitals, and waterways. The fight over the bill was bruising. “They painted people like me as being crazy activists, anti-science,” said Hooser.

“I’ve been doing politics and government for 20 years, and I’ve never worked with any industry as intense and thuggish as the chemical companies,” said Hooser. “They filled the room full of their workers and told the world that Gary Hooser, and this bill was going to cost them their jobs.”

Despite the efforts, the Kauai measure passed. But Syngenta, BASF, and Agrigenics, a company affiliated with Dow AgroSciences, sued on the grounds that Kauai’s law was pre-empted by state law. And even though Hawaii has no pre-emption law, a federal appeals court judge agreed with the companies in 2016 and struck down the measure.

In Montgomery County, Maryland, another local pesticide ban was overturned last year despite the fact that the state has no pre-emption law. The Healthy Lawns Act would have prohibited the use of certain pesticides on lawns starting in January of this year. But six local lawn care companies, along with the lobbying arm of CropLife America called Responsible Industry for a Sound Environment, or RISE, successfully sued the county. The county has since appealed the ruling to a Maryland Court of Special Appeals, which heard the case this week and is expected to rule on it soon.

“RISE was basically the lead,” said Ling Tan, a mother who began working on a local law to restrict pesticides after she realized that toxic lawn products were being sprayed while her two daughters, who both have asthma, were outside playing. Tan, who first asked her homeowner’s association and the Maryland State Department of Agriculture for help with the issue, has been working on the ban with other parents since 2013.

“What’s so disheartening is that it took just one judge to undo years of activism by so many groups,” said Tan.

OREGON COAST,  OR - SEPTEMBER 8:  Barbara Davis, left, gathers support from Debra Fant, right, after becoming emotional at the sight of clear cutting of old growth timber along the coastal mountain range of Oregon.  The two are part of the group Lincoln County Community Rights, who were able to get an ordinance passed to stop the aerial spraying of pesticides. 
September 8, 2018 (Photo by Beth Nakamura For The Intercept)

Barbara Davis, left, and Debra Fant share a moment after viewing large swathes of clearcutting of old growth timber along the coastal mountain range of Oregon.

Photo: Beth Nakamura For The Intercept


A court may soon reverse the hard-fought win in Lincoln County, too. On June 6, 2017, one day after the ban on spraying from planes and helicopters took effect, a lawsuit was filed to declare it invalid on the grounds that Oregon state law pre-empted the ordinance. The named plaintiff, Rex Capri, who owns timberland in the county, was later joined in the suit by Wakefield Farms LLC, another local landowner. Both have aerially sprayed their timber trees with pesticides in the past and want to continue doing so.

The complaint filed in their suit doesn’t mention CropLife America. But a report from the trade group’s legal department notes that “CLA is closely working with Oregonians for Food and Shelter (OFS) and Oregon Forest Industries Council (OFIC) in a legal challenge to” the Lincoln County ban.

Legal wrangling also continues in Lane County, where the authors of their spray ban are still fighting to bring it before the people of the country for a vote. Rob Dickinson and Michelle Holman, members of the all-volunteer group that has been working on the charter amendment for years, acknowledge that the county may not succeed in banning aerial spraying of pesticides — and that, if they do, the ban may then be overturned by the court.

Either way, they feel the fight is worth having. “When the black students sat down at that lunch counter, it wasn’t a failure that they didn’t get served lunch,” said Dickinson. “The only way we fail is if we stop fighting.”

As much as it is fueled by a deep desire to get the chemicals out of their air and water, the activists say their fight is about democracy. “We’re the freaking people. We have inalienable rights,” said Holman. As long as they keep fighting, there’s at least a chance they’ll be able to exercise those rights to rid their communities of pesticides.

“It’s definitely a David and Goliath situation,” said Holman. “But sometimes David wins.”

Additional research by Nick Surgey of Documented.

Top photo: Debra Fant, left, Rio Davidson, and Barbara Davis are part of the group Lincoln County Community Rights, who were able to get an ordinance passed to stop the aerial spraying of pesticides.

The post How a Ragtag Group of Oregon Locals Took On the Biggest Chemical Companies in World — and Won appeared first on The Intercept.

Why We Should Be Protesting the National Anthem

Francis Scott Key observes the bombardment and the U.S. flag over Fort McHenry.

Francis Scott Key observes the bombardment and the U.S. flag over Fort McHenry.

Image: Bettmann Archive/Getty Images

From day one, the United States has always struggled to walk its talk. In 1776, as the U.S. declared itself independent from Great Britain, the framers of said declaration noted that “all men are created equal.” But Thomas Jefferson, the lead author of the Declaration of Independence, owned men. In his “Notes on the State of Virginia,” he compared Africans to apes. He had sex with an enslaved woman and kept her children in bondage.

This is not just me looking back 242 years and imposing my present-day worldview onto a different era — the hypocrisy was seen and known in real-time.

“How is it that we hear the loudest yelps for liberty among the drivers of Negroes?’’ English writer Samuel Johnson wrote in 1775. A year later, English abolitionist Thomas Day wrote, “If there be an object truly ridiculous in nature it is an American patriot signing resolutions of independency with the one hand and with the other brandishing a whip over his affrighted slaves.”

We are expected to judge this nation’s early leaders on their words and not their deeds.

In other words, we are expected to judge this nation’s early leaders on their words and not their deeds. When it comes to the past, we’re supposed to basically do the opposite of what Martin Luther King Jr. said we should do in his “I Have a Dream” speech: actually overlook the content of someone’s character.

Here’s the thing, though: It appears that that’s easier for some people to do than others. I’m stuck. I am simply incapable of respecting someone who bought, sold, traded, bred, and forced human beings into a brutal life of slavery. It’s a disqualifier for me. And my guess is that, the less your ancestors were affected by such a practice, the less of a disqualifier it is for you. But some of us value black lives so much that we find it pretty hard to be wooed by someone’s otherwise brilliant words when they owned black people. Kind of like how it’s hard to marvel over the poetry of Nazis or the photographic skills of 9/11 hijackers. At some point your character, or lack thereof, gets in the way of your contributions.

Francis Scott Key, the author of what is now known as our national anthem, absolutely needs to be on the list of folks drummed out of polite company for their transgressions. He was a genuinely horrible human being. He was an open, flagrant bigot. He was not a silent bigot; he put his bigotry into words and actions.

Key said that African-Americans were “a distinct and inferior race of people.” Of course he thought that: He came from a long line of slaveowners. His family got wealthy off buying, selling, trading, breeding, and working human beings to death. He continued the practice himself and owned human beings for most of his life. Not only that, but as the district attorney of Washington, D.C., Key fought against the rights and human dignity of black people every chance he got. In case after case, he fought against the rights of abolitionists and sought any means available to silence them.

All the way back in 1833, Key was defending heinous incidents of police brutality against African-Americans. The man fought to protect slavery until the day he died. He was no timid beneficiary — Key fought tooth and nail to protect it.

I have a problem with Francis Scott Key. I don’t care how great his poetry may or may not have been — I see him as evil.

All of that results in me having a problem with Francis Scott Key. I don’t care how great his poetry may or may not have been — I see him as evil. I see slavery as an evil institution. Participating in it, for Key, was not a one-time choice, but a gross daily decision to benefit from and defend at all costs.

When he wrote a poem based on his eyewitness account of the War of 1812, it makes perfect sense that his absolute loathing of free black people found itself into “The Star-Spangled Banner.” There, Key gleefully wrote about the murder of enslaved Africans that had been enlisted in the fighting. Their deaths were a highlight for him. The poem says:

No refuge could save the hireling and slave
From the terror of flight or the gloom of the grave,
And the star-spangled banner in triumph doth wave
O’er the land of the free and the home of the brave.

This poem bothers me. Again, this is not me viewing the 19th century through a 21st century lens. It bothered abolitionists of the day. They, too, were irked by how easily the deaths of enslaved Africans could be celebrated in the same stanza in which this land was hailed as “the land of the free.” Abolitionists even created other songs to the tune of “The Star-Spangled Banner” that spoke of the true pain and costs of slavery and how desperately freedom was desired.

There’s a reason why this history is so important. Former NFL quarterback Colin Kaepernick started his demonstration during the national anthem to protest the repetitive cycle of systemic injustice and police brutality in this nation. It did not feel right to him to stand up to a song full of empty promises.

Kaepernick is not alone in the annals of sports. Jackie Robinson, in the final years of his life, in 1972, reflected back on injustice in this nation and said, “I cannot stand and sing the anthem. I cannot salute the flag.” And he was a veteran who gave years of his life in the military. It all ringed so hollow to him.

And it does to me as well. I am a man. I have a brain. I have a heart and soul. My fight in this country is against injustice. The same is true of Colin Kaepernick and Eric Reid and so many other NFL players who’ve taken a knee. But something weird has happened where it’s now seemingly politically incorrect to say that anybody is protesting the anthem.

So let me say it: I am protesting the anthem.

I am protesting its deeply bigoted author — who owned human beings for convenience and profit.

And I am protesting injustice in this nation on behalf of so many families that continue to experience systematic racism, police brutality, and inequality — all while others expect us to get up and sing with a heart full of happiness.

I’ll take a pass.

The post Why We Should Be Protesting the National Anthem appeared first on The Intercept.

How the Oslo Accords Betrayed the Palestinian Women Behind the First Intifada

Twenty-five years ago, after months of secret negotiations, the Norwegian government announced that a historic agreement had been reached between the Israeli government and the exiled Palestine Liberation Organization. The Oslo Accords, sealed by an iconic handshake between Israeli Prime Minister Yitzhak Rabin and PLO leader Yasser Arafat on September 13, 1993, in Washington, D.C., were celebrated as a victory for diplomacy and a monumental turning point in one of the world’s most intractable conflicts.

But the agreement came as a surprise to many Palestinians in the West Bank and Gaza, including a delegation of Palestinian representatives from the occupied territories who had also been engaged in peace talks with the Israelis, starting with the 1991 Madrid Conference. They, like everyone else, learned about Oslo — which would prove to be a colossal failure — from the news.

Minister of Foreign Affairs of Israel Shimon Peres puts his signature on the agreement during the signing ceremony of the Oslo 1 Accord, on the South Lawn of the White House on Sept. 13, 1993 in Washington, D.C.

Israeli Minister of Foreign Affairs Shimon Peres puts his signature on the agreement during the signing ceremony of the Oslo 1 Accord at the White House on Sept. 13, 1993, in Washington, D.C.

Photo: Arnie Sachs/AP

The blow was especially hard for the women who had been at the negotiating table in Madrid and those who rallied behind them at home. The Madrid Conference, and ultimately Oslo itself, were precipitated by the events of the First Intifada, the nonviolent, grassroots uprising that shook the region in the late 1980s. A rapidly organized insurrection that saw thousands of Palestinians take to the streets to protest the Israeli occupation, the intifada was led largely by women, who launched strikes and a boycott of Israeli goods that for the first time put real economic and international pressure on Israel to negotiate.

But there were no women at the talks in Oslo — a betrayal of those who had led the intifada as much as the terms of the accords were a betrayal of Palestinians’ aspirations to self-determination. The story of the First Intifada, its popular roots, and the way in which the movement’s hopes were crushed in Oslo is the subject of a recent film, “Naila and the Uprising,” told through the eyes of a woman, Naila Ayesh, whose life was marked by a chapter of Palestinian history that is often forgotten.

“Oslo was created as a way of empowering, again, the male Palestinian leadership that had been in exile,” Julia Bacha, the film’s director, told The Intercept. “The intifada had come from the grassroots and from local leaders who had been living in the West Bank and in Gaza and had created a model for resistance that was very appealing to the international community, because it was based on popular resistance. They had created the political circumstances at the time for a lot of pressure to be put on Israel.”

“American efforts to hold an international conference for peace between Palestinians and Israelis was a result,” Zahira Kamal, a leader of the First Intifada and one of two women representing Palestinians at the Madrid talks, says in the film. “If there had been no intifada, it wouldn’t have happened.”

Civilians flee gunfire from armed soldiers after violence broke out after rebel Israeli and Palestinian fighters protested during the First Intifada on Feb. 2, 1988 in Gaza, Palestine.

Civilians flee gunfire from armed soldiers during the First Intifada on Feb. 2, 1988, in Gaza, Palestine.

Photo: Patrick Robert/Sygma/AP

A Two-Track Insurgency

The First Intifada is seldom invoked in discussion of the Israeli-Palestinian conflict, often eclipsed by the Second Intifada of the early 2000s, which was much more violent. With striking parallels to recent uprisings in the region, the First Intifada erupted in Gaza in 1987, an outburst against the occupation with no immediate leadership. The PLO was initially taken by surprise — much of the leadership, including Arafat, had been in Tunisia for years and wouldn’t return to Palestine until after the Oslo Accords — and for the first time, Palestinians in the territories made decisions without waiting for guidance from their exiled leaders.

“It was purely a populist uprising,” Ayesh says in the film, describing the intifada’s early days. “It was spontaneous and quick.”

But the fact that it was spontaneous didn’t mean it wasn’t organized. Palestinian civil society quickly sprang into action, led by women’s collectives that multiplied across the occupied territories: The Women’s Action Committees, the Working Women’s Committees, the Union of Women’s Committees, and the Women’s Committee for Social Work were connected to Palestinian political parties that were crystallizing at the time — but their goals and methods were a radical departure from politics up to that point.

For Palestinian women, the intifada became a two-track insurgency: They stood up against the Israeli occupation while also seeking to liberate women from the barriers imposed by their own society.

“Women have been involved in the struggle for national liberation for a long time. But her presence was still limited,” Kamal says. “In Palestinian society, authority lies in the hands of men and elders. In villages, women didn’t participate because of the separation between genders.”

An Israeli soldier takes aim as a Palestinian woman hurls a rock at him during a demonstration in which one Palestinian youth was shot dead several months after the outbreak of the intifada on Feb. 29, 1988 in Gaza, Palestine.

An Israeli soldier takes aim as a Palestinian woman hurls a rock at him during a demonstration on Feb. 29, 1988, in Gaza, Palestine.

Photo: Jim Hollander/Reuters

“Our motto was that there was only one door to freedom,” Sama Aweidah, an activist during the intifada, says in the film. “We can’t be free as women unless we’re in a free country. And even if we’re free of the occupation, we can’t know freedom as long as we’re subjugated in our own society.”

Under the guise of social work, women took their organizing efforts into villages and refugee camps. They called for a boycott of Israeli products and worked with farmers to reduce reliance on them, concurrently helping women to set up businesses and become financially independent of the men in their families. When the Israelis closed Palestinian schools, women set up clandestine classrooms under the trees. When the Israelis banned gatherings, women knocked on doors to distribute food and hid political bulletins in bags of bread.

“Publicly, the women’s committees were known for their social work. But in reality, and covertly, it was all political organizing,” activist Naima Al-Sheikh Ali says in the film. “Nurseries, sewing workshops, teaching women how to knit, cook, etc. That was all window dressing.”

“Every problem that came up at the governmental level, we’d set up local committees to address them,” Azza Qassem, another activist, says. “The women’s organizations and unions worked in lieu of a full government that organized people’s lives.”

As the intifada intensified despite Israel’s efforts to crush it, it was mostly women who raised the then-outlawed Palestinian flag and faced off with soldiers at the mass rallies that became the trademark of the uprising. And as men were killed, imprisoned, and exiled, it was increasingly women who organized the movement. 

“Women were always the majority at these gatherings,” says Ayesh. “There were fewer men than women because some of them were in prison or had been martyred. Women became part of almost every political activity.”

“People would come to me from all over saying they needed this or that and asking for advice. We’d say to them, ‘Give us a couple of hours while we ask the brothers in the organization,’” says Rabeha Diab, who led Fatah, one of the largest Palestinian political parties, during a period of the intifada. “But there were no brothers.”

Naila-in-Demonstration_1-1536784193

Activist and organizer Naila Ayesh demonstrates during the First Intifada in Gaza, Palestine.

Photo: Luisa Morgantini/Courtesy of Just Vision

Sacrifice and Disappointment

In the film, Ayesh’s story unfolds alongside that of the intifada — a reminder of the personal sacrifice that was at stake as the political movement rose. At the time, any political organizing was punished, and merely being a member of a student union was considered a crime. Ayesh was interrogated by Israel’s secret service for two weeks, tied to a chair with a bag over her head. She was left out in the cold all night and dragged across the floor when her feet were too frozen to move. In prison, she miscarried her first child. “I had already told them that I was newly pregnant,” she says in the film. “They told me it didn’t make a difference.”

After she was released, Ayesh got pregnant again and continued her political work — once, she says, she accidentally handed out a sonogram along with political fliers. Her husband, also an activist, was arrested four days before she went into labor, and then deported. With her husband exiled in Egypt, Ayesh carried her newborn son around Gaza in a baby sling as she visited women in refugee camps. She was arrested again in the middle of the night when her son was 6 months old and was forced to leave him behind alone.

When relatives were allowed to visit her in prison, “of course I asked to hold my baby,” she says. “The guard refused and said the law doesn’t allow it.” Ayesh’s family eventually succeeded in convincing the Israelis to reunite mother and son — but in prison. Baby Majd learned to walk behind bars, surrounded by female prisoners who saw in him the children they too had been forced to leave behind.

Today, Ayesh insists that there was nothing unique about her struggle: It was the story of countless Palestinian families. In 1991, she tearfully left Gaza for Egypt — resigned to a two-year exile so her husband could finally meet Majd, who had only ever seen his father in a video of his parents’ wedding. A foreign documentary crew had followed them for months as they lived apart and then reunited — the footage from that time adds a layer of home-movie intimacy to a film that powerfully stitches together archival news reels, illustrations, and interviews with the women who led the intifada.

Naila-Ayesh-and-her-son_NAU_Still1-1536784191

Naila Ayesh with her son, Majd.

Photo: Naila Ayesh/Courtesy of Just Vision

Three decades later, the story they tell is one of disappointment.

Forced into peace talks as a result of the First Intifada’s appeal to the international community, the Israelis initially refused to negotiate directly with the PLO, which they considered a terrorist organization. The Palestinian delegation ended up being “a people’s delegation,” as spokesperson Hanan Ashrawi called it. At first, there were no women on the Israeli delegation to Madrid, but when they realized that the Palestinian delegation had two women, the Israelis also sent one. “We were proud that our delegation included women,” says Kamal, who was a representative along with Ashrawi, one of Palestine’s best-known female politicians. “This made us stand out.”

When the PLO leadership abroad started direct talks with the Israelis in Oslo, they did so without informing the Palestinians who had been at the forefront of the uprising and were now engaged in peace talks in Madrid.

“How could the PLO think it could set up negotiating teams without us present?” Al-Sheikh Ali asks. “Women were left out of all preparations for the formation of the Palestinian Authority. We represent 50 percent of society, sometimes more. If 50 percent of the population isn’t participating in decisions, that means society is half-paralyzed.”

“When you compare what we proposed to what came out of Oslo, you get truly sad. Because Oslo brought a lot less than what was on the negotiating table,” says Kamal. “The Palestinian leadership returned to the country and began to form the Palestinian Authority. People around the world assumed that negotiations would bring a solution. But the occupation was still in effect.”

“By the time the men returned, women had achieved a lot in their position, but the expectation was that men would slot straight back into their position,” she adds. “And women would have to step aside.”

As the Palestinian Authority took over, women were horrified to learn that they would now need a male guardian to get a passport. Some took to the streets again, this time against their own leadership — but their protest fell on deaf ears.

“They said: Your role is done,” says Qassem.

The Steep Price of Failed Peace

“What Oslo did was it replaced a truly representative diplomatic process with a very top-down and, I would argue, much more security negotiation, rather than peace negotiation,” Bacha, the film’s director, told The Intercept. “Oslo really became about Israel wanting to guarantee that the Palestinian Authority would serve their needs, in terms of preventing another uprising from taking place, completely ending the First Intifada, and then never allowing again for Palestinian civil society to rise as effectively as they had done.”

“And Arafat agreed to those terms.”

For years after Oslo, with some notable exceptions, Palestinian women who had been integral to the intifada were excluded from the Palestinian Authority and further attempts at peace. At a recent screening of “Naila and the Uprising,” a former Palestinian negotiator recalled participating in an all-male delegation to South Africa. The South Africans agreed to meet with the Palestinians out of solidarity for their cause, he said, but they stressed that they were making an exception to their rule not to receive delegations that were not truly representative of their societies.

Ayesh and her husband returned to Palestine after the Oslo Accords. She became the director of the Women’s Affairs Center, an NGO that advocated for gender equality in Palestine and encouraged women to participate in political life.

But she sometimes wondered how things might have turned out differently had women been at the table in Oslo. “Men were not as aware of the details on the ground,” she told The Intercept this summer, noting that women were often the ones who bore the brunt of water shortages after Israel annexed the West Bank’s aquifers, or kept up relations between towns and villages that were cut off from one another.

It is still women who pay the steeper price of failed peace in their everyday lives, she added. In Gaza, where the Israeli blockade means constant electricity cuts, “it is women who wake up in the middle of the night to wash things when the electricity comes back.”

Ahed Tamimi arrives for a press conference, with her mother after her release from an Israeli prison on July 29, 2018 in Nabi Saleh, Palestine.

Ahed Tamimi arrives for a press conference with her mother after her release from an Israeli prison on July 29, 2018, in Nabi Saleh, Palestine.

Photo: Ilia Yefimovich/AP

I met Ayesh in Nabi Saleh, a Palestinian village in the West Bank, at the house of another activist, Manal Tamimi, on the day that her niece Ahed Tamimi was released from an Israeli military prison after slapping a soldier last year. It is on the image of a young Ahed Tamimi, surrounded by other girls shouting at soldiers, that “Naila and the Uprising” ends — a deliberate effort to let hope speak louder than disillusion, or at least, to give it the last word.

To young Palestinians — the overwhelming majority in the West Bank and Gaza — the system set up by Oslo is the only reality they have ever known. Illegal Israeli settlements have increased by 140 percent since Oslo; the occupation continues. But many young people have little faith in their political leadership and are increasingly protesting the Palestinian Authority as they continue to resist, like earlier generations, the Israeli occupation.

“There is a new generation, a younger generation, that actually doesn’t identify with this political system at all,” said Bacha. “That’s where I see women’s leadership flourishing again.”

“I believe it will happen,” she added. “But it does require a reckoning with history, and a reckoning with the outcomes of Oslo.”

Top photo: A group of Palestinian women protest during the First Intifada in Gaza, Palestine.

The post How the Oslo Accords Betrayed the Palestinian Women Behind the First Intifada appeared first on The Intercept.

No One Will Be Celebrating the 25th Anniversary of the Oslo Accords

On September 13, 1993, Israel and the Palestinian Liberation Organization signed the Oslo Accords on the lawn of the White House. Following some nudging from U.S. President Bill Clinton, Israeli Prime Minister Yitzhak Rabin and PLO Chair Yasser Arafat shook hands, thrilling the 3,000 assembled potentates.

The New York Times marked the occasion with a banner A1 headline, and the accompanying story by Thomas Friedman described Oslo as an “agreement between Jews and Palestinians to end their conflict” — “a triumph of hope over history.” The Times devoted its whole front page to the accord; another article referred to it as a “Day of Glory.” The Washington Post’s lead story was headlined “Ritual End To Decades Of Conflict.” Within a year Rabin, Arafat, and then-Israeli Foreign Minister Shimon Peres would win the Nobel Peace Prize.

Meanwhile, critics of the agreement, formally called a “Declaration of Principles on Interim Self-Government Arrangements,” were completely drowned out in the euphoria.

The late Edward Said, the most articulate champion of the Palestinian cause in the United States, immediately called Oslo “an instrument of Palestinian surrender.” Said quoted Israeli novelist Amos Oz as saying it was “the second-biggest victory in the history of Zionism,” after the establishment of Israel in 1948. Few would herald Said in the moment, but his criticisms have been more than borne out.

Oslo merely required Israel to recognize the PLO as the representative of the Palestinian people and pull back troops from parts of the occupied territories that Israel was happy to cede to soon-to-be formed Palestinian security forces. Managing civil affairs in densely populated Palestinian cities that Israel had no interest in keeping was a headache anyway.

Negotiations on everything important — “Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors” — were left to a “five year transitional period,” with no incentives for Israel to concede anything, including statehood, to the Palestinians. This “interim stage” purportedly leading to Palestinian self-government, Said wrote, “may be the final one.”

Who was right? Who was wrong? The answer is obvious from the silence this week of Oslo’s proponents — on the 25th anniversary of the accord. There are no op-eds from former State Department officials congratulating themselves on their hard work and diligence. Bill Clinton has not taken to Twitter to reminisce about that hallowed day.

They all realize, of course, that it would be ridiculous if they did. Today there is no Palestinian state, no peace — and no sign there ever will be either. Since Oslo, about 10,000 Palestinians have been killed by Israel, several thousand of them women and children, and more than 1,500 Israelis have been killed by Palestinians. The West Bank and Gaza have been politically severed from each other, even as the number of Israeli settlers has grown from about 250,000 in 1993 to 600,000 today. And the Israeli government and populace have grown more and more extreme, to the point that Prime Minister Benjamin Netanyahu, who once was seen as occupying the far-right of the political spectrum, now is part of the sensible center.

“It’s not that the PA has turned into a monster, I think it was born a monster.”

Worst of all from the perspective of Palestinians, 25 years after Oslo they do not have legitimate political representation. Said predicted in 1993 that the PLO would “become Israel’s enforcer, an unhappy prospect for most Palestinians.” This is exactly what has come to pass: The Palestinian Authority, set up after Oslo as the supposedly interim self-governing body for Palestinians, is largely a corrupt agent of the Israeli government.

This is no surprise to Palestinians. “It’s not that the PA has turned into a monster, I think it was born a monster,” Yara Hawari, a young activist and a policy fellow at the Palestinian think tank Al-Shabaka, told The Intercept this summer. “I don’t think it was ever going to be anything else just because of the way that it was set up: What it was supposed to do was maintain and manage the situation and assist it.”

“It’s classic Fanon if you think about it,” Hawari said. “It’s like, Let’s create this class of people that are going to maintain the security of the oppressed or the natives, so that we don’t have to do it.”

The illusion in the U.S. since Oslo has been that the situation is a struggle between Israelis and Palestinians. In fact, it is largely a conflict between Palestinians on the one hand, and Israel, the U.S., and the Palestinian Authority on the other.

BAQUAR, JORDAN:  Fatah militiamen rest under a tent close to the Jordan river in Jordan 04 November 1969. After Israeli army started a lightning war in Syria, Sinan and Jordan in June 1967 the problem of Palestinian refugees increased without precedent in the Arab countries around Israel. Des militants du Fatah se reposent sous une tente prFs de la rive jordanienne du Jourdain le 04 novembre 1969. A la suite de la guerre-Tclair lancTe par l'armTe israTlienne en Syrie, dans le Sinan et en Jordanie en juin 1967, le problFme des rTfugiTs palestiniens a pris une ampleur sans prTcTdent dans les pays arabes entourant Isradl. (Photo credit should read AFP/AFP/Getty Images)

Fatah militiamen rest under a tent near the Jordan River in Jordan on Nov. 4, 1969.

Photo: AFP/Getty Images


To understand how this came to pass requires a look back at Palestinian and Israeli history.

The PLO was founded in Cairo in 1964, with the goal of “the liberation of Palestine” — i.e., the elimination of Israel. Then in 1967, Israel attacked its Arab neighbors and seized huge amounts of territory: the Sinai Peninsula and Gaza (from Egypt), the West Bank (from Jordan), and the Golan Heights (from Syria). Israel returned the Sinai to Egypt as part of the Camp David Accords in 1978, but its continued possession of the West Bank and Gaza meant that it was ruling directly over millions of Palestinians.

The PLO conceived of itself as a government in exile, with its main headquarters as of 1970 in Jordan. However, conflict with Jordan’s King Hussein led the PLO’s various factions to relocate to Lebanon over the next several years. Israel’s 1982 invasion of Lebanon then forced the PLO to again pull up stakes and move to Tunis, the capital of Tunisia.

During the 1970s, the PLO’s goals moderated. According to a 1977 State Department memo, Arafat strenuously argued to a U.S. diplomat that the PLO had already reached “tacit acceptance of [a] two-state solution” — that is, a solution to the conflict in which Israel would withdraw from Gaza and the West Bank, and they would become the territory for a new Palestinian state. Two resolutions calling for a two-state solution were introduced in the U.N. Security Council during this period; the U.S. vetoed both.

However, the PLO steadily weakened during the 1980s after its relocation to Tunis. Part of it was simply distance: It’s almost 1,500 miles from Tunis to Jerusalem, about as far as it is from New York City to Lubbock, Texas. Part of it was the PLO’s deep flaws: Noam Chomsky has described how “the corruption of the PLO has just infuriated Palestinians in the Territories. … Back in 1988 or so, and when you went into, say, the old city of Nablus, or villages, and talked to organizers or activists, their hatred and contempt of the PLO was just extraordinary.” Part of it was the First Intifada, a Palestinian uprising that began in 1987 and was led not by the PLO’s far-away, aging men, but mostly women who actually lived in Palestine and, for the first time, didn’t wait for guidance from their exiled leaders.

Then most damagingly, Arafat foolishly backed Saddam Hussein during the first Gulf War, in 1991. This angered the PLO’s patrons in other petrostates, which cut off funding. The PLO was now near collapse — leading Israeli military intelligence to advise Yitzhak Rabin that this made them the perfect partner for “peace.”

This is why the Oslo Accords were signed: Everyone significant got something they wanted. Israel got the chance to kick the legs out from under the surprisingly successful intifada and subcontract much of the occupation to PLO elites. The PLO and Arafat got the opportunity to become players again just as their power had been slipping away. And the U.S. was able to stabilize the situation for a client state — plus get a beautiful White House photo op.

Of course, regular, powerless Palestinians got something too. Danny Rubinstein, an analyst for the liberal Israeli daily Haaretz, described it as “autonomy,” but “autonomy as in a POW camp, where the prisoners are ‘autonomous’ to cook their meals without interference and to organize cultural events.”

For most Palestinians living in the occupied territories, the arrangement set up under the Oslo Accords is all they’ve ever known. More residents of the West Bank and Gaza were born after 1993 than before. In Gaza, nearly 40 percent of the population is under 14 years old.

Unsurprisingly, the Palestinian Authority’s legitimacy has been increasingly challenged, mostly by young Palestinians who see it as an additional layer to their oppression — on top of the Israeli occupation to which the PA is inexorably tied.

With portraits of late leader Yasser Arafat and Palestinian President Mahmoud Abbas hanging on the wall, a Palestinian woman, left waits in a line, not seen, in front of a cash machine to check if her salary had been deposited, in the West Bank town of Ramallah, Monday, Dec. 4, 2006. After Hamas won the Palestinian elections in January and took over the government, Western powers cut off aid to the Palestinian Authority because of the party's refusal to recognize Israel and renounce violence. The result has meant thousands of Palestinian civil servants have not received their salaries for months. (AP Photo/Muhammed Muheisen)

Portraits of Yasser Arafat and Palestinian President Mahmoud Abbas hang on a wall, in the West Bank town of Ramallah on Dec. 4, 2006.

Photo: Muhammed Muheisen/AP


The last Palestinian legislative elections were held in 2006, with the encouragement of the George W. Bush administration. Hamas, the more radical Islamist organization based in Gaza, won — not necessarily because Palestinians supported all their policies, but because of their reputation for being less corrupt than Fatah, the remnants of the PLO. Hillary Clinton, then a senator from New York, was stunned by Bush’s naiveté. “I do not think we should have pushed for an election in the Palestinian territories,” she said. “And if we were going to push for an election, then we should have made sure that we did something to determine who was going to win.”

The Bush administration clearly came around to Clinton’s perspective in the election’s aftermath. With Secretary of State Condoleezza Rice taking the lead, the administration attempted to organize a coup in which Fatah would overthrow the elected government. In response, Hamas seized control of Gaza, while Fatah retained power in the West Bank, a stalemate that remains in place to this day.

Meanwhile, Fatah’s Mahmoud Abbas continues to serve as president of the Palestinian Authority. Abbas, who was first elected in 2005 after Arafat’s death, should have faced another election when his term ended in 2009.  Instead he has stayed in office indefinitely.

Recent years have seen greater and greater tensions between Palestinians, mostly the young, and their leadership. In 2017, protests erupted after the prominent Palestinian activist Bassel Al-Araj was killed by Israeli forces after being detained a year earlier by Palestinian security forces. The PA brutally repressed the demonstrations. Abbas said at the time, “Our security cooperation with Israel is functioning well.”

Al-Araj’s death sparked widespread condemnation of the PA, with demonstrators in the street calling him a martyr not just of the occupation, a common refrain, but also of the “security coordination.”

RAMALLAH, WEST BANK - MARCH 12: Security forces intervene to protesters as they gather to protest against Palestinian court's trial on Basil al Arac, who was killed during Israeli soldiers' raid at his home, and his five friends in front of the Ramallah Minor Court in Ramallah, West Bank on March 12, 2017. Basil al Arac and his friends are judged for possession of unregistered firearm. (Photo by Issam Rimawi/Anadolu Agency/Getty Images)

Security forces clash with protesters outside the Ramallah Minor Court in Ramallah, West Bank, on March 12, 2017, after Palestinian activist Bassel Al-Araj was killed.

Photo: Issam Rimawi/Anadolu Agency/Getty Images


Then, last June, Palestinians once again took to the streets to protest a set of sanctions that the Palestinian Authority had imposed on Gaza, including slashing the salaries of government employees there and forcing a third into early retirement.

In Ramallah, hundreds of protesters were met with tear gas and stun grenades from a wide array of security officers in uniform and riot gear. The Palestinian Authority, which had forbidden the protest before it started, ordered it shut down. More than 40 people were arrested, and many were beaten and injured. In subsequent smaller demonstrations, security forces sometimes outnumbered protesters 10 to one.

“Many feel, Why would we criticize the PA when we can criticize Israel? But that’s just not a very nuanced understanding of what occupation means.”

Several people who were in Ramallah when the June protest was met with violence later told The Intercept that they originally thought the Israeli army had entered the city before realizing the security officers were “our own guys,” as one protester put it. Others said the display of force was reminiscent of that of Arab regimes in Syria and Egypt, and quietly warned about the Palestinian Authority’s descent into authoritarianism.

“People, even people high up, were very, very pissed off with the way that it was handled because it made the PA look like a very repressive body,” said Hawari, the activist. “Which it is.”

“Many feel, Why would we criticize the PA when we can criticize Israel?” said Hawari. “People will say that’s very divisive, and the main problem is the occupation, and we need to focus on the enemy. But that’s just not a very nuanced understanding of what occupation means.”

“Of course that’s not to say the main reason isn’t the occupation,” she added, “but the PA is a huge barrier in the way of liberation.”

If anger at the Palestinian Authority’s leadership is most noticeable among young Palestinians, members of older generations who experienced the occupation pre-Oslo feel deep resentment as well.

Qadura Fares, head of the Palestinian Prisoners Club and a close friend of imprisoned Palestinian leader Marwan Barghouti, spent 13 years in an Israeli prison for his political work. He was released as part of the Oslo process, along with other Palestinian political activists.

“We agreed and signed with the Israelis that these procedures should lead to the end of the occupation, and to create a new state beside Israel, living together in peace and cooperation,” he said, without masking his sarcasm, during an interview in Ramallah over the summer.

“You can keep saying that you represent the interest of the people,” he told The Intercept, “but your behavior is saying different things.” He compared the power and wealth enjoyed by Palestinian leaders to that of the authoritarian monarchs of the Persian Gulf. “If we could make real democracy happen in our life, we will win the battle with the occupation,” he added. “But if we don’t succeed to be a real democratic community, it’s a sign that we will not be a free Palestine.”

If the Palestinian Authority needs to die in order for Palestinians to pursue their liberation, the Trump administration may just have inadvertently brought its demise a step closer. Earlier this week, the U.S. State Department shut down the PLO’s mission in Washington, D.C., accusing the Palestinian body of refusing to engage with the U.S. and not having “taken steps to advance the start of direct and meaningful negotiations with Israel.” The Palestinian Authority called the move “a declaration of war on efforts to bring peace to our country and the region.”

For now — and for the foreseeable future — Edward Said’s warning about Oslo appears hauntingly accurate. For the Palestinians to “throw themselves on the tender mercies of the U.S.,” he wrote, “is almost certainly to suffer the fate the U.S. has meted out to rebellious or ‘terrorist’ peoples it has had to deal with in the Third World after they have promised not to resist the U.S. any more.”

Top photo: PLO Chair Yasser Arafat, right, shakes hands with Israeli Prime Minister Yitzhak Rabin as U.S. President Bill Clinton stands between them, after the signing of the Israeli-PLO peace accord at the White House on Sept. 13, 1993.

The post No One Will Be Celebrating the 25th Anniversary of the Oslo Accords appeared first on The Intercept.

Computer Science and Diversity

Today I saw a tweet quoting Mark Guzdial's blog saying "In last five years, little progress in increasing the fraction of American CS BS degree recipients who are African Americans."  It is a problem I've given quite a bit of thought to, but in my thinking, diversity is a problem I approached from another angle.  I've always been pleased that a large number of women have decided to work on the problems I care about.  When I came to the University of Alabama at Birmingham (UAB) I didn't come to "teach Computer Science."  I came to try to change the way we train, recruit, and equip cyber crime fighters.  I was fortunate that our department chairs in Computer Science (Anthony Skjellum) and Justice Sciences (John Sloan) believed that was something worth doing.  Since then, we've moved from having a certificate in Computer Forensics, to a Masters in Computer Forensics and Security Management, to a full Bachelors degree in Digital Forensics.  But the passion has stayed the same.  How do we train, recruit, and equip cyber crime fighters?

I hadn't realized that we were necessarily doing something unique until I had a visit from Jenn Lesser in April of 2013.  At the time, Jenn was the Security Operations Manager for Facebook.  We had a full agenda of things we were hoping to discuss with her, but something happened that halted all of that.  She came into my office, closed the door, and said  "You have SIX WOMEN working in your lab!  Would you mind if we cancel everything else and just let me interview them?"  At the time my lab was much smaller and that represented about 1/3rd of my employees. What Jenn learned was that most of the women in the lab were there because they wanted to fight crime, right wrongs, and serve the cause of Justice.  When they realized that learning to program and analyze hard drives, network traffic, and email headers could help serve that cause better, they were all in.

This fall, I'll have interactions with 83 students in the classroom and 28 of them are women. 11 of the 48 people on my lab payroll today are women, and I hope we'll hire several more at our job fair later this week! I should note that these are not "Computer Science" courses, but rather Computer Forensics courses being taught for Criminal Justice credit.

How do we recruit women?  It's the same as what our ladies told Jenn Lesser back in 2013.  None of them come to our program because they want to write code.  They come because they want to dedicate themselves to the cause of Justice, and they have learned, perhaps in an introductory course from myself or my colleague Arsh Arora, or perhaps in an introductory course from Criminal Justice professor Martha Earwood, that being skilled in technology is a force multiplier.  If you want to protect the financial assets of the elderly, technology helps.  If you want to identify and stop child predators and human traffickers, technology helps.  If you want to fight against hate speech on the Internet or cyber bullying in the schools, technology helps.  If you want to identify and stop the malware that it is stealing our data, finances, and intellectual property, technology helps.

As I was reading through Guzdial's blog post and following the linked stories, I read Kenneth Bowman's post on African American Computer Science enrollment, and also the 2017 Taulbee Survey on Computer Science Enrollment from the Computer Research Association.

The Taulbee survey has some stark numbers for US Citizen, Female, and African American enrollment in Computer Science at all levels.

At the PhD Level

In the US and Canada, they found 124 Computer Science departments awarded 1,557 PhDs.  891 went to "non-resident aliens."  291 went to Females.  10 went to African Americans.  Of the 291 females, 164 were non-resident aliens.  Of the American females, 64 were White, 27 Asian, 4 Black, and 2 Hispanic.

Of 12,689 PhD students currently studying Computer Science in 135 departments, 8,058 (64.3%) are non-resident aliens, 2,734 (21.1%) are female, and 170 are African American.

What about Masters Level?

132 US Computer Science departments awarded 12,483 Masters degrees last year.  8,813 (73.8%) are non-resident aliens.  26.1% of those students who reported a gender were female (3,162 females and 8,956 males). 111 (0.9%) of the students were Black.  Of the 3,162 females, 2,462 (81%) were non-resident aliens.  Of the American females, 272 were Asian, 250 were White, 32 were Hispanic, and 24 were Black.

Of the 25,126 currently enrolled Masters students in Computer Science, 16,414 are non-resident aliens.  Of the 6,682 females, 5,183 are non-resident aliens.  Of the 1,499 resident females, 661 are White, 620 Asian, 95 Hispanic, and 81 Black.

And at the Bachelor's Level?

131 reporting US Computer Science departments awarded 19,907 Bachelors degrees last year. At the Bachelor's level, we have a much greater percentage of American students.  Only 12.5% of these were non-resident aliens.  But of those remaining 15,433 students, only 547 were Black.  Of the 3,198 female Bachelor's degrees awarded, 2669 went to Americans women.  Of these, 1,110 (35%) were White, 1,104 (35%) were Asian, 200 (6%) were Hispanic, and 93 (3%) were black.

Of the 86,569 students currently enrolled in Computer Science Bachelor's programs, 10,704 were non-resident aliens.  Of the 75,865 citizens in CS BS programs, 13,358 (17.6%) were female. By ethnicity, 39,416 (51.9%) were White, 21,113 (27.8%)  were Asian, 8,395 (11%) were Hispanic, and 3800 (5%) were Black.

The Question

The question that data like this leaves me with is this?  Could it be that the lack of interest in Computer Science from women and minorities (especially African Americans) is similar to what I've found in my lab?  Perhaps the key to encouraging Computer Science is to look at it rather than a Subject to be studied, but as a Tool to be Mastered to enable the study of something else?  Computer Science as a tool (in my case) to improving your ability to help fight for Justice.  Computer Science as a tool to improving your ability to fight disease and illness.  Computer Science as a tool to improving your ability in economics. Computer Science as a tool to improving your ability to fight poverty.

Instead of asking "How to we get more women (or blacks) to study Computer Science?" Perhaps we should be asking "How can we learn what women (and blacks) want to make their life's work and show them how Computer Science can help make them do their life's work better?"