THE INTERCEPT

28 Jan. 2023

Two weeks after Oklahoma carried out its first lethal injection of 2023, the new attorney general interrupted the state’s killing spree, upending its execution calendar and launching an independent investigation into the case of Richard Glossip, who was next in line to die. In a motion filed before the Oklahoma Court of Criminal Appeals last week, Attorney General Gentner Drummond, who witnessed the execution of Scott Eizember on January 12, wrote that “a reassessment of the current execution schedule is necessary to maintain confidence in the system.” Although he praised the Oklahoma Department of Corrections for its “work ethic, professionalism, and concern for the victims’ families,” it had become clear, he wrote, “that the current pace of executions is unsustainable in the long run, as it is unduly burdening the DOC and its personnel.”

On Tuesday, the court granted the motion, rescheduling seven executions and postponing 13 additional dates well into the future. Two days later, Drummond announced that he had appointed an independent prosecutor to reinvestigate Glossip’s case. For Glossip’s longtime attorney Don Knight, who has fought for years to save his client’s life, it was a banner week in a case that has become synonymous with the state’s dysfunctional death penalty system. “From the beginning of our work on this case, all we have asked for is a fair review of all the evidence,” Knight said in a statement. “The new evidence we have uncovered since 2015 shows conclusively … that no reasonable juror who viewed all the evidence would find Mr. Glossip guilty of murder for hire. We are confident that this new investigation will reach the same conclusion. Richard Glossip is innocent of this crime.”

Glossip, who was scheduled for execution on February 16, had already filled out the paperwork for witnesses and burial plans when news of the investigation arrived — a ritual he has undertaken multiple times. He is now set to die on May 18. Amid mounting pressure from Oklahoma lawmakers, however, it seems vanishingly unlikely that this new execution date — his ninth so far — will come to pass.

Drummond, who was sworn in on January 9, inherited Oklahoma’s execution spree from his predecessor, John O’Connor, who made executions a top priority during his short stint in office. Appointed in the summer of 2021 to finish the term of Michael Hunter, who was tasked with overhauling the state’s execution protocol before resigning amid a personal scandal, O’Connor immediately requested a slew of death warrants even as a lawsuit over the state’s new lethal injection protocol was pending in federal court. After the court upheld the protocol last June — despite evidence that the condemned have suffered when executed using the contested set of drugs — the state moved to set 25 execution dates.

Drummond’s intervention so soon after taking office caught many Oklahomans by surprise, including activists, attorneys, and people on death row. The previous schedule had set a pace of roughly one execution per month, which would have eliminated half the state’s condemned population within two years. The new schedule puts 60 days between each execution, reducing the number of remaining executions this year from 10 to four. Yet for those whose cases have not drawn the same public attention as Glossip’s, the order provides little more than temporary relief. One man whose execution will be postponed said that his date was not close enough to cause a lot of stress, although he had already begun to prepare psychologically for his execution. “There was the ‘ticking off of last things’ and that was a bummer — last World Series, last Thanksgiving, stuff like that,” he wrote. “Now, I have to begin anew.”

NEW YORK, NEW YORK - NOVEMBER 18: A small group of anti-death penalty activists hold a vigil for Oklahoma death row prisoner Julius Jones on the day of his scheduled execution, November 18, 2021, in Washington Square Park in New York City. Two hours before his execution the governor of Oklahoma commuted Jones' sentence to life in prison.  (Photo by Andrew Lichtenstein/Corbis via Getty Images)

Anti-death penalty activists in New York City hold a vigil for Oklahoma death row prisoner Julius Jones on Nov. 18, 2021.

Photo: Andrew Lichtenstein/Corbis via Getty Images

Unacceptable Risks

The news in Oklahoma came as other active death penalty states announced that they would halt executions altogether to reevaluate their killing protocols. In Tennessee, where the execution of Oscar Smith was called off at the last minute in April, an investigation recently revealed that prison officials had run afoul of their own protocol since executions resumed in the state in 2018. In Arizona, whose record of botched executions carried into 2022, newly elected Gov. Katie Hobbs announced plans to appoint a death penalty independent review commissioner “to review and provide transparency” into the state’s protocols. Arizona’s new attorney general vowed not to seek any execution dates while the review was underway.

Yet Oklahoma’s own recent history shows how tenuous and short-lived such de facto moratoriums can be. The state’s death chamber was inactive for six years following a series of disastrous executions that made national headlines. In 2015, Oklahoma nearly executed Glossip using the wrong drug, reversing course at the last minute and sparking a series of investigations that uncovered myriad problems with the way the state carried out capital punishment. In 2017, a bipartisan commission issued a nearly 300-page report critiquing every aspect of the state’s system. The report’s co-chairs expressed hope that the study would “foster an informed discussion among all Oklahomans about whether the death penalty in our state can be implemented in a way that eliminates the unacceptable risk of executing the innocent, as well as the unacceptable risks of inconsistent, discriminatory, and inhumane application of the death penalty.”

Yet virtually nothing changed. In the years following the review, the state remained mired in controversy as it moved to resume executions. John Grant, the first man put to death, convulsed and vomited on the gurney during his 2021 execution. Officials accused witnesses of exaggerating what they saw. Later that year, Julius Jones, a Black man sentenced to die by a nearly all-white jury compromised by racial bias, came within hours of execution despite an activist movement proclaiming his innocence. Gov. Kevin Stitt commuted his sentence to life. In other cases, issues like untreated mental illness, severe childhood trauma, and questionable convictions have been brushed aside in order to put people to death.

Nevertheless, due largely to Glossip’s case, even staunch supporters of the death penalty have begun to question Oklahoma’s system. Last fall, after the Oklahoma Court of Criminal Appeals refused to consider new evidence pointing to Glossip’s innocence — including exculpatory evidence destroyed by police between his first and second trials — state Rep. Kevin McDugle wrote a scathing op-ed in The Oklahoman, warning that such a system posed a threat to anyone who might find themselves wrongfully accused. “Oklahoma has a sad history of pushing cases through the full judicial process and declaring them final and over, only to have many convicted men later exonerated when DNA evidence proved their innocence,” he wrote. “Undeniably, this system has failed before; we cannot insist everything is fine just because we went through the process. Who will take responsibility for this travesty?”

“Who will take responsibility for this travesty?”

Indeed, while the same court granted the attorney general’s request to slow down executions, such willingness to intervene in carrying out the death penalty is an exception for the judges, not the rule. Judge Gary Lumpkin made clear that he was reluctant to go along with the order, grousing in a concurrence that the “major complaint in the application of the death penalty is the amount of time it takes to complete the carrying out of the sentence to provide finality for crime victims and their families.” Now the DOC was asking for even more time with “no more than a claim of inconvenience.”

The death penalty’s application has always hinged more on political will than a meaningful approach to crime, subject to the whims and priorities of whoever is in power at a given time. It’s no coincidence that the slowdown in executions comes not only at the hands of a new attorney general, but also at the behest of newly appointed Department of Corrections Director Steven Harpe, who worked as an executive for the governor’s mortgage company before joining his administration — and has no background in prisons or punishment. Nor is it any secret that executions take a toll on those who are tasked with carrying them out.

For activists who have fought the relentless tide of executions since 2021, the impact on prison personnel has become abundantly clear during visits to the state penitentiary in McAlester. Sue Hosch, the Oklahoma coordinator of Death Penalty Action, who regularly visits and corresponds with men on death row, said that guards who work at the prison are among the unseen individuals who are adversely impacted every time a human being is put to death. The men on death row “have a system of people they’re involved with — family, friends, loved ones, both inside and outside the prison,” Hosch said. “It hurts to see these people executed one after another like they’re meaningless people in the world, because they’re not.”

The post Oklahoma Slows Down Frenzied Execution Spree and Launches Probe Into Richard Glossip Case appeared first on The Intercept.

28 Jan. 2023
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Foto: Hervé Collart/Getty Images

Já está claro que a tragédia vivida pelo povo Yanomami não é meramente fruto da omissão do governo Bolsonaro. É muito mais que isso. É consequência da retomada de um projeto antigo das Forças Armadas que se iniciou nos primeiros anos da ditadura militar. Como bem lembrou Carla Jimenez na última newsletter do Intercept, “a ditadura militar foi pródiga em dizimar indígenas em nome do progresso”.

A Funai foi criada pelos militares três anos após o golpe de 64 e foi comandada por militares guiados pelo lema da bandeira nacional: Ordem e Progresso. A política indigenista da ditadura tinha como objetivo integrar o indígena ao “mundo civilizado”. Em 1970, durante o governo Médici, o regime militar comandou o Plano de Integração Nacional, com objetivo de expandir as fronteiras internas do país, abrir rodovias e criar novas cidades. Para isso foi necessário perseguir, prender, torturar e assassinar lideranças indígenas que lutavam pelos seus territórios. Em 1972, o general Ismarth de Araújo, superintendente da Funai, disse que “índio integrado é aquele que se converte em mão de obra”. Os indígenas que se rebelaram contra esse projeto acabaram mortos.

O ex-capitão do Exército Jair Bolsonaro, que sempre foi reconhecidamente um deputado vagabundo, trabalhou bastante contra os povos indígenas — especialmente contra o povo Yanomami — durante sua passagem pelo parlamento. O então deputado atuou incansavelmente pela extinção da etnia. Em 1992, ele apresentou um decreto legislativo que previa a extinção da reserva Yanomami, que tinha sido demarcada no ano anterior. O projeto foi arquivado, mas Bolsonaro tentou emplacá-lo em outras quatro oportunidades. Em um dos seus discursos no plenário em defesa do decreto, Jair Bolsonaro disse: “a cavalaria brasileira foi muito incompetente. Competente, sim, foi a cavalaria norte-americana, que dizimou seus índios no passado e hoje em dia não tem esse problema no país”.

A ascensão do bolsonarismo ao poder possibilitou a continuação desse projeto militar. Assim como na ditadura, a política indigenista do governo Bolsonaro oferece duas opções aos povos indígenas: a integração forçada ou a extinção. As cenas de homens, mulheres e crianças Yanomami subnutridos, com os ossos do corpo inteiro aparecendo, retrata o sucesso da retomada desse projeto. A desnutrição e a fome são consequência direta da ocupação de seus territórios por garimpeiros ilegais. A garimpagem na região impede o povo Yanomami de exercer suas atividades produtivas básicas.

Não me recordo de uma tragédia mais anunciada do que essa. Durante os últimos quatro anos, o avanço do garimpo ilegal e a saúde dos povos indígenas foram assuntos de destaque no debate público nacional. Reportagens e órgãos públicos como o Ministério Público Federal, o STF e a Corte Interamericana de Direitos Humanos alertaram sobre a gravidade da situação. Desde o primeiro ano de governo Bolsonaro, o MPF fez pelo menos oito recomendações relacionadas à falta de atenção básica de saúde nas terras Yanomami.

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Deputada Joênia Wapichana e Dario Yanomami em reunião com o Vice-Presidente Hamilton Mourão.

Foto: Divulgação/Planalto

Em 2020, o MPF fez o primeiro alerta ao governo sobre a fome dos Yanomami em Roraima. O órgão determinou que a Sesai, a Secretaria Especial da Saúde Indígena, deveria providenciar a compra de alimentos para abastecer a comunidade. Absolutamente nada foi feito. Claro, durante o governo Bolsonaro a Sesai serviu ao projeto iniciado no regime militar. Nesse período, ela foi comandada por militares sem nenhuma experiência em saúde indígena. O primeiro a assumir a pasta foi o coronel do Exército Robson Santos da Silva. Depois, foi a vez de outro coronel: Reginaldo Ramos Machado, amigo pessoal de Jair Bolsonaro. Ambos comandaram a destruição da estrutura de atendimento da pasta. Cargos e departamentos importantes do órgão foram encerrados. Mecanismos de controle e participação social como os Conselhos Distritais de Saúde Indígena (Condisi) e o Conselho Nacional de Política Indigenista (CNPI) foram extintos. A fome dos Yanomami é resultado de uma política muito bem planejada pelas Forças Armadas e pelo governo Bolsonaro.

A garimpagem na região impede o povo Yanomami de exercer suas atividades produtivas básicas.

As digitais dos militares estão impregnadas em todos os pontos da tragédia vivida pelos Yanomami. O ex-vice-presidente e hoje senador Hamilton Mourão presidiu por três anos o Conselho Nacional da Amazônia Legal. O general não convidou ninguém da Funai e do Ibama para integrar o conselho. Escolheu 19 militares da sua confiança. A função desse conselho é prestar assistência aos povos indígenas da região, mas Mourão e os militares fingiram não ver o descalabro. Em entrevista ao Jornal da Globo, a liderança Dário Kopenawa contou que conversou pessoalmente com Mourão em julho de 2020. A principal reivindicação foi a retirada dos garimpos ilegais de ouro instalados no território indígena. O garimpo nessa região é comandado maciçamente por empresas clandestinas ligadas ao contrabando e ao crime organizado. General Mourão ouviu o pedido dos Yanomami, publicou foto com Kopenawa e não tomou absolutamente nenhuma providência.

A reivindicação não foi atendida, pelo contrário. Os militares bolsonaristas atuaram para legalizar a garimpagem no território dos Yanimami. No fim do governo Bolsonaro, antes de apagar as luzes, o general da reserva Augusto General Heleno, ex-ministro do Gabinete de Segurança Institucional, o GSI, autorizou o garimpo de ouro em área próxima à Terra Indígena Yanomami.

A pessoa agraciada com a autorização é uma garimpeira que já cumpriu pena por tráfico de drogas e já foi acusada pelo Ministério Público por receptação de pneus roubados. Essa é a política da “ordem e progresso” beneficiando diretamente uma garimpeira com histórico de envolvimento com o crime em detrimento da saúde de povos indígenas. Trata-se de um episódio bastante representativo da hipocrisia que integra a essência do bolsonarismo.

Não é que os militares simplesmente permitiram a garimpagem em área indígenas. Eles atuaram em conluio com os garimpeiros. Militares do Sétimo Batalhão de Infantaria da Selva por exemplo, chegaram a ter um grupo de WhatsApp com garimpeiros da região Yanomami para poder avisá-los sobre eventuais ações desencadeadas ali. Esse é apenas um exemplo. Há uma pororoca de outros que mostram como os ataques dos militares contra os povos indígenas. Vejamos algumas manchetes que pipocaram no noticiário nos últimos tempos: “Militares que dirigiram Ibama ignoraram plano de socorro a povo Yanomami”;
“Em áudio, militares na Funai prometem atropelar Ibama e liberar garimpo em terras indígenas”; “Relatório aponta militares comprados pelo garimpo na TI Yanomami no início da gestão Bolsonaro”; “Tenente do Exército, coordenador da Funai fala em ‘meter fogo’ em índios isolados no AM”; “Na cidade mais indígena do Brasil, Exército ocupa e domina vida civil”; “Militar da Funai é acusado de desviar patrimônio de indígenas Mura”; “Militares arrendam ilegalmente terras indígenas para latifundiários”.

Não é que os militares simplesmente permitiram a garimpagem em área indígenas. Eles atuaram em conluio com os garimpeiros.

A ministra dos Povos Indígenas Sônia Guajajara iniciou uma desmilitarização da Funai. Já foram demitidos 43 militares que boicotavam a proteção dos povos indígenas. Esse é o começo de um longo processo necessário para reconstruir o órgão. É urgente que o país puna severamente os militares e todos aqueles que encamparam esse projeto de dizimação dos povos indígenas desenhado durante a ditadura militar. Trata-se de um crime de lesa humanidade. As Forças Armadas precisam ser enquadradas para que não tentem retomar esse projeto no futuro. Não é possível mais ver uma importante instituição da democracia brasileira trabalhando diretamente pela destruição dos povos originários, enquanto atua em conluio com garimpeiros, golpistas e terroristas.

É preciso que fique claro que o genocídio sofrido pelos Yanomami não foi um mero caso de incompetência e omissão de um governo, mas um projeto de governo dos militares.

The post Bolsonaro recuperou projeto da ditadura militar contra os Yanomami: mão de obra ou extinção appeared first on The Intercept.

27 Jan. 2023

Attorney General Merrick Garland names an independent special counsel to probe President Joe Biden’s alleged mishandling of classified documents at the Justice Department in Washington, D.C., on Jan. 12, 2023.

Photo: Olivier Douliery/AFP via Getty Images

We do not yet know if any of the cases involving former presidents and vice presidents improperly retaining classified documents are as incendiary as some partisan commentators would have us believe. The dominant view projected by the liberal media is that Joe Biden and Mike Pence are benign, accidental document hoarders and that Donald Trump is a criminal who absconded with vital national secrets that could destroy the republic as we know it. Pro-Trump outlets have generally run with the narrative that the former president had every right to take the documents because he had magically declassified them in his mind, but Biden took the documents to engage in acts of corruption, including sharing them with his wayward son Hunter. The broader right-wing position is effectively to downplay or ignore Trump’s document situation unless it is convenient for hammering on Biden, and to portray the Biden document case as a breathtaking scandal that portends dark secrets that must be exposed.

We do not have enough information yet to determine if there were malicious motives at play in any of these cases, nor do we know if any actual harm was done. There is no denying, however, that Trump’s situation is different from the Pence and Biden affairs — because of Trump’s scuttling of the investigation (potentially in a criminal manner), his resistance to returning documents, and the sheer volume of documents he took. There may well be a finding that some or all of these officials violated regulations or laws governing the handling of classified or national defense materials. In the end, what will really matter is the precise nature of the documents they improperly retained. In Trump’s case, his actions after he took the documents may prove more problematic for him and his team legally than the act of improperly retaining the materials.

For good reasons, this story is receiving widespread coverage and will be the focus not only of the special counsel probes, but also congressional investigations. The Republicans, wielding their majority in the House, will certainly zero in on the Biden document case. He is, after all, the sitting president, and lawmakers are right to investigate. However, if the House Republicans elect to ignore Trump’s actions or minimize their importance while simultaneously running an aggressive examination of Biden’s conduct, that will severely undermine the credibility of the process. Unfortunately, that seems to be a likely scenario.

“No one’s been investigated more than Donald Trump. Who hasn’t been investigated? Joe Biden, and that’s why we’re finally launching an investigation of Joe Biden,” said Rep. James Comer, the chair of the House Oversight Committee. “I don’t feel like we need to spend a whole lot of time investigating President Trump because the Democrats have done that for the past six years.” Comer and other Republicans, however, have indicated they intend to question the government on what they allege was a politically motivated raid of Trump’s Florida resort home last August. “My concern is how there’s such a discrepancy in how former President Trump was treated by raiding Mar-a-Lago, by getting the security cameras, by taking pictures of documents on the floor,” he said.

In recent weeks, Comer has fired off a slew of letters demanding information about the documents as well as details about how they were discovered, who had access to them, and the communications between the Justice Department and Biden’s team. He has also asked the White House and the Secret Service for visitor’s logs for Biden’s home in Delaware. “President Biden’s mishandling of classified materials raises the issue of whether he has jeopardized our national security,” Comer wrote in a letter to chief of staff Ron Klain. “Without a list of individuals who have visited his residence, the American people will never know who had access to these highly sensitive documents.” In another letter to the University of Pennsylvania, Comer also requested a detailed list of everyone, including members of the Biden family, who may have had access to the Penn Biden Center, where the initial batch of documents was discovered.

Rep. Jim Jordan, the Republican chair of the Judiciary Committee, has also announced an investigation into Biden’s documents with an initial focus on Attorney General Merrick Garland’s decision to appoint a special counsel and the communications between Biden’s lawyers and the Justice Department about the discoveries of classified materials. “It is unclear when the Department first came to learn about the existence of these documents, and whether it actively concealed this information from the public on the eve of the 2022 elections,” Jordan wrote in a January 13 letter to Garland.

Biden and his lawyers have been emphatic in asserting that they followed proper protocol once they discovered classified papers at the Penn Biden Center. The administration has blasted House Speaker Kevin McCarthy for putting “extreme MAGA members,” such as Reps. Marjorie Taylor Greene and Paul Gosar, on oversight committees, charging among other things that they have promoted “dangerous conspiracy theories.”

Some leading Democrats, including Illinois Sen. Dick Durbin, have openly criticized Biden over the documents case, while Majority Leader Chuck Schumer said he would support bipartisan legislation spearheaded by Michigan Democrat Sen. Gary Peters aimed at preserving presidential and other federal records. Rep. Ritchie Torres, a New York Democrat, said he will introduce legislation that would require “federal officials, within 30 days of leaving office, to certify under oath that they possess no classified documents.” Most Democrats, when asked about Biden’s actions, defer to the special counsel probes, while pointing to the differences between the Biden and Trump situations. Many of those same people over the past year have shown no hesitation to blast Trump and portray his taking of classified documents as a nondebatable threat to national security despite the limited amount of concrete information made public about the specific nature of the materials in question. After Connecticut Democrat Rep. Jim Himes remarked that Biden “has apparently done what Trump did in retaining classified documents,” the New York Times reported, “His response irked some Democrats on the Hill, who said they want to maintain a consistent message that the special prosecutors should be able to conduct their investigations without being influenced by politics.”

While the investigations in the House of Representatives appear to be narrowly aimed at Biden’s conduct, there are some indications of bipartisan efforts brewing in the Senate. Sen. Mark Warner, the chair of the Senate Intelligence Committee, has expressed frustration that lawmakers never received a briefing on the Trump documents case and has called for one dealing with both the Biden and Trump matters. Warner, a Democrat from Virginia, said that there was unanimous support among both Democrats and Republicans on the Intelligence Committee in demanding a full briefing on the documents recovered from both Trump and Biden. “We don’t want to get into a question of threats at this point,” Warner said after a closed-door briefing from the Director of National Intelligence Avril Haines on January 25. Senators said that Haines told the committee that they would not receive a briefing while the special counsel investigations are ongoing. “We have a job to do. It is our job to make sure that the security of our country is protected and that the intelligence that our country depends upon is not compromised,” Warner said. “The notion that we have to wait until a special prosecutor blesses the Intelligence Committee’s oversight will not stand.” Arkansas Republican Sen. Tom Cotton has threatened to block Biden’s nominees “for any department or agency and take every step I can on every committee on which I serve, to impose consequences on the administration until they provide these documents for Congress to make our own informed judgment about the risk to national security.”

Jeremy Scahill discusses the mistreatment of whistleblowers and Washington’s culture of secrecy on Democracy Now!, Jan. 24, 2023.

It would be indefensible for the Biden administration to stonewall a bipartisan effort from the Democrat-led Senate Intelligence Committee to conduct a classified investigation of these matters. It is worth remembering that in 1976, then-Sen. Biden was a co-sponsor of the legislation that established the permanent intelligence committees, following the widespread abuses committed during the Nixon administration. Biden was an original member of the Senate Intelligence Committee and criticized various administrations for failing to comply with its oversight mandates.

Even if such briefings on the Biden and Trump documents happen, the public would be kept largely in the dark, save for some inevitable leaks to the media, for the foreseeable future. As the Justice Department investigations unfold, one of the most valuable public responses from Congress would be to convene a thorough, independent, bipartisan investigation of the entire bureaucracy of secrecy that exists throughout the federal government. It should interrogate the pervasive practice of overclassification, the uneven legal treatment — depending on their status or positions of power — of individuals who mishandle classified materials, as well as the abuse of the Espionage Act by both Democratic and Republican administrations to target whistleblowers and journalistic sources.

There is another aspect to these scandals that we should not lose sight of: the general climate of impunity that exists among the powerful when it comes to secrecy and abuse of power. Under President George W. Bush and Vice President Dick Cheney, the U.S. was operating a global kidnap and torture regime after 9/11. Senior CIA personnel destroyed videotapes of their torture of detainees. The CIA, under John Brennan, spied on U.S. Senate investigators and hacked into their computer systems. In the lead up to the 2003 Iraq invasion, Cheney and other officials abused the system of classified intelligence, cherry-picking unverified data to fabricate a justification for war. James Clapper, the former director of national intelligence under Barack Obama, perjured himself in front of the U.S. Senate when he lied about the National Security Agency’s bulk collection of the communications of Americans. Modern U.S. history is rife with such malignant actions on the part of senior officials. No one has ever faced any real consequences for these abuses of power — and in fact, many people involved, such as Gina Haspel, who served as CIA director under Trump, continued to be promoted in government or received lucrative deals in the private sector.

It is a disservice to the public to exploit the Trump, Biden, and Pence cases for solely partisan purposes. Each case should be investigated on its merits and the public informed of the extent of the misconduct. At the same time, this moment should serve as an opportunity to launch a serious and wide-ranging investigation into the broader culture of secrecy in Washington, D.C., that leads to such cases.

But the investigation shouldn’t stop there. Any meaningful inquiry must include an accounting of a wider range of abuses, including the secret torture program, and must develop a system of meaningful consequences for the perpetrators regardless of their prominence or the powerful positions they hold.

The post Classified Documents Scandals Point to Larger Culture of Impunity appeared first on The Intercept.

27 Jan. 2023

Os atos terroristas de 8 de janeiro em Brasília despertaram até mesmo o indolente procurador-geral da República Augusto Aras. Antes ocupado em colocar panos quentes em quaisquer suspeitas que envolvessem o presidente que o nomeou, ele resolveu trabalhar. Mandou criar um Grupo Estratégico de Combate aos Atos Antidemocráticos, que já denunciou à justiça 98 pessoas acusadas de participação nos ataques.

No braço do Ministério Público da União responsável por investigar e oferecer denúncias contra militares das Forças Armadas, entretanto, um milagre semelhante não se repetiu. “Até o momento, o Ministério Público Militar não requisitou a instauração de Inquérito Policial Militar relacionado aos atos ocorridos no dia 8 de janeiro”, me respondeu a instituição nesta quinta-feira, 26, via Lei de Acesso à Informação.

“Requisitar a instauração”, neste caso, é uma expressão – propositalmente? – imprecisa. O MPM não precisa pedir autorização a quem quer seja para abrir inquéritos contra militares. Basta que decida fazer isso. Mas, quase três semanas após o ataque mais grave à democracia brasileira desde o golpe de 1964, a turma chefiada pelo procurador-geral de Justiça Militar, Antônio Pereira Duarte, ainda não deu nem sequer o primeiro passo necessário para acusar membros das Forças Armadas que tenham participado dos ataques às sedes dos Três Poderes.

Por ora, apenas “algumas notícias de fato estão sendo apuradas pela Procuradoria de Justiça Militar em Brasília”, mas ainda não resultaram em inquérito. Notícia de fato é o nome dado a qualquer denúncia apresentada ao Ministério Público por um cidadão. Se ela for verdadeira e minimamente embasada, dá origem a um inquérito. Três semanas após os ataques, o MPM ainda não conseguiu dar conta desse trabalho preliminar.

O procurador-geral de justiça militar, Antônio Pereira Duarte.

Foto: Reprodução/MPM

“Eu estranho, e muito, que o Ministério Público Militar fique para trás. O que está esperando?”, questionou o jurista, professor e procurador de justiça aposentado Lenio Luiz Streck, a quem pedi um comentário sobre o caso. “Já deveria ter requisitado inquéritos, já deveria ter feito denúncias. Porque, se o Ministério Público – entre aspas – comum já denunciou 90 e tantas pessoas, como é que no militar não tem nenhum ainda?”.

A demora do MPM é ainda mais relevante porque, atualmente, todos os crimes de militares, no Brasil, são tratados como crimes militares – ou seja, os previstos no Código Penal Militar. Um exemplo: o assassinato de um soldado da Força Aérea Brasileira por um colega, em novembro passado, em Brasília, é apurado e investigado pela própria Aeronáutica. E será julgado pela justiça militar. Como se fossem uma casta, os militares têm até seu sistema de justiça exclusivo. Uma aberração que deverá finalmente ser revista pelo Supremo Tribunal Federal após o 8 de janeiro.

Enquanto isso, o único inquérito policial militar já concluído – pelo Exército – sobre o 8 de janeiro indicia o coronel da reserva Adriano Camargo Testoni. O crime dele? Ofender as Forças Armadas, a quem xingou de “filhas da puta” por não terem apoiado (mais) um golpe de estado. Mesmo nesse caso, o letárgico MPM ainda não ofereceu denúncia.

The post 18 dias após ataques, Ministério Público Militar sequer abriu inquérito contra fardados suspeitos appeared first on The Intercept.

27 Jan. 2023
ATLANTA, USA - JANUARY 21: Firefighters work to extinguish a fire after an Atlanta police vehicle was set on fire during a "Stop cop city" protest in Atlanta, Georgia, United States on January 21, 2023. Multiple buildings were vandalized and an Atlanta police vehicle was set on fire as multiple arrests were made. (Photo by Benjamin Hendren/Anadolu Agency via Getty Images)

Firefighters work to extinguish a fire after an Atlanta police vehicle was set on fire during a Stop Cop City protest in Atlanta, Ga., on Jan. 21, 2023.

Photo: Benjamin Hendren/Anadolu Agency via Getty Images

The movement to stop the construction of a $90 million police training center atop vast acres of Atlanta forest has been extraordinarily successful over the last year. With little national fanfare, Defend the Atlanta Forest/Stop Cop City activists nimbly deployed a range of tactics: encampments, tree-sits, peaceful protest marches, carefully targeted property damage, local community events, investigative research, and, at times, direct confrontation with police forces attempting to evict protesters from the forest. The proposed militarized training compound known as Cop City has thus far been held at bay.

The Atlanta-based movement should be seen as an example of rare staying power, thoughtful strategizing, and the crucial articulation of environmentalist politics situated in anti-racist, Indigenous, and abolitionist struggle. Unsurprisingly, however, significant national attention has only been drawn to the forest defenders in the last week thanks to the extreme law enforcement repression they are now facing.

A forest defender was killed by police last Wednesday, and a total of 19 protesters now face capricious and ungrounded domestic terror charges for their involvement in the movement — a rare deployment of a state domestic terror statute, threatening to exhaust and crush a resilient and developing movement.

On Thursday, Georgia’s Republican Gov. Brian Kemp announced a “state of emergency” in response to the protests in downtown Atlanta in the week following the killing of the protester. The executive order grants the governor’s office extensive and preemptive repressive powers, including the ability to call on as many as 1,000 National Guard troops to quell protests at any moment.

“At this point the police seem to be charging every protester they arrest with ‘domestic terrorism’ regardless of the circumstances.”

“This is an unprecedented level of repression,” said Marlon Kautz, 38, an Atlanta-based organizer with the Atlanta Solidarity Fund, which provides bail funds and legal support to protesters who are targeted for involvement in social movements, including against Cop City.

“At this point the police seem to be charging every protester they arrest with ‘domestic terrorism’ regardless of the circumstances,” he said. “The other pattern we’ve noticed is they are charging everyone arrested on a given day with all crimes which happened that day.”

Kautz told me, by way of example, that during a protest in which a police car was burned, all arrestees from the day now face arson charges. “Needless to say, the law doesn’t work this way, so we interpret this as a strategy of blatant malicious prosecution.”

The Defend the Atlanta Forest movement endeavors to combine the tactics of, and to learn from, previous struggles — including the 2016 encampments at Standing Rock and the 2020 George Floyd uprisings — while experimenting with novel resistance compositions. The escalatory response from police and prosecutors, on the other hand, reveals a new and troubling combination of counterinsurgent strategies.

The forest defenders have already faced months of aggressive policing and intimidation, which escalated into deadly violence during a multiagency raid last Wednesday. Police shot and killed 26-year-old Manuel “Tortuguita” Terán. The authorities claim that Tortuiguita shot at them first, wounding an officer — a narrative fiercely challenged by fellow activists and family members.

Protests and vigils sprung up nationwide demanding “justice for Tort,” while mainstream environmental organizations, including Greenpeace and the Sierra Club, alongside left-wing Reps. Cori Bush, D-Mo., and Rashida Tlaib, D-Mich., condemned the police’s violence and called for an independent investigation into the activist’s killing. Up until this point, they had said little about the year-plus long struggle against Cop City.

As forest defenders mourn and seek justice for their fallen friend, the movement must also fight a barrage of excessive criminal charges, most notably state domestic terrorism charges carrying a possible 35 years in prison.

“Since December, the police have repeatedly stormed the forest with military-grade weapons, pointed assault rifles at protesters, fired chemical weapons at tree sitters, and used chainsaws in an attempt to dismantle treehouses with tree sitters still in them,” said Elias, a 24-year-old Atlanta-based student in the movement, who asked to withhold his full name for fear of police harassment. “Their decision to create a dangerous, volatile, chaotic situation now has led to the murder of our friend Tortuguita.”

Elias told me “the police are trying to justify their negligence by charging people with domestic terrorism. However, nothing these protesters have done even remotely resembles domestic terrorism. The police are trying to redefine terrorism to mean ‘sitting in a treehouse’ or ‘breaking windows.’”

The terror charges, all handed down within the last two months, were not from nowhere. Political and business interests behind Cop City have been pushing related rhetoric for well over a year. Communications records uncovered by activists between Cop City supporters — local self-identifying “stakeholders,” business owners, council members, and Atlanta law enforcement officials — show that these parties have been calling the protesters “eco-terrorists” since at least last April.

Though no one has yet been convicted on these bogus terror charges, Kemp, the governor, has readily used the term “domestic terrorists” to describe the arrestees. Kemp has also invoked the tired trope of “outside agitators” to delegitimize an Atlanta-based movement, which has made a point to invite activists to join from out of state. Notably, in recognition that the land on which Atlanta stands was stolen in the 1800s from the Muscogee (Creek) people, the forest protest encampment has been host to dozens of visitors from around the country who descended from the displaced Indigenous community.

The recent wave of arrests are part and parcel of a “green scare,” which began in the 1990s and has seen numerous environmental and animal rights activists labeled and charged as terrorists on a federal level consistently for no more than minor property destruction. Yet the Atlanta cases mark the first use of a state domestic terrorism statute against either an environmental or anti-racist movement.

The 19 protesters are being charged under a Georgia law passed in 2017, which, according to the Republican state senator who introduced the bill, was intended to combat cases like the Boston Marathon bombing, Dylann Roof’s massacre of nine Black churchgoers in Charleston, South Carolina, and the Orlando Pulse nightclub shooting.

“During legislative debate over this law, the concern was raised that as written, the law was so broad that it could be used to prosecute Black Lives Matter activists blocking the highway as terrorists. The response was simply that prosecutors wouldn’t do that,” Kautz told me. “There are similar laws passed in many other states, and we believe that the existence of these laws on the books is a threat to democracy and the right to protest.”

The Georgia law is exceedingly broad. Domestic terrorism under the statute includes the destruction or disabling of ill-defined “critical infrastructure,” which can be publicly or privately owned, or “a state or government facility” with the intention to “alter, change, or coerce the policy of the government” or “affect the conduct of the government” by use of “destructive devices.” What counts as critical infrastructure here? A bank branch window? A police vehicle? Bulldozers deployed to raze the forest? What is a destructive device? A rock? A firework? And is not a huge swathe of activism the attempt to coerce a government to change policies?

Police affidavits on the arrest warrants of forest defenders facing domestic terror charges include the following as alleged examples of terrorist activity: “criminally trespassing on posted land,” “sleeping in the forest,” “sleeping in a hammock with another defendant,” being “known members” of “a prison abolitionist movement,” and aligning themselves with Defend the Atlanta Forest by “occupying a tree house while wearing a gas mask and camouflage clothing.”

It is for good reason that leftists, myself included, have challenged the expansion of anti-terror laws in the wake of the January 6 Capitol riots or other white supremacist attacks. Terrorism laws operate to name the state and capital’s ideological enemies; they will be reliably used against anti-capitalists, leftists, and Black liberationists more readily than white supremacist extremists with deep ties to law enforcement and the Republican right.

Since its passage in 2017, the Georgia domestic terrorism law has not resulted in a single conviction. As such, there has been no occasion to challenge the law’s questionable constitutionality. Chris Bruce, policy director at the American Civil Liberties Union of Georgia, told the Atlanta Journal-Constitution that “the statute establishes overly broad, far-reaching limitations that restrict public dissent of the government and criminalizes violators with severe and excessive penalties.” He said of the forest defender terror charges that they are “wholly inapposite at worst and flimsy at best.”

“The state is attempting to innovate new repressive prosecution, and I think ultimately that will fail for them,” Sara, a 32-year-old service worker who lives by the imperiled forest and has been part of Stop Cop City since the movement began, told me.

“What we are seeing bears some resemblance to the J20 case, where prosecutors attempted to put blanket charges on people in the vicinity of a protest,” said Sara, who also asked to withhold her surname for fear of police harassment. She described the strategy as “an expensive and dangerous prosecutorial endeavor.”

“It’s evident the Atlanta area law enforcement, including prosecutors, believe heavy charges will crush dissent.”

The J20 prosecutions didn’t involve terror charges but rested on infirm claims of collective culpability, which flew in the face of the legal standard requiring individual probable cause for arrest. Those prosecutions fell apart, but not before traumatizing and exhausting the resources of the 200-plus people charged and their communities.

“The authorities’ legal strategy seems to be to load protesters up with extreme charges with no intention of actually making them stick, simply to discourage continued protest,” Kautz, of the Atlanta Solidarity Fund, told me.

At present, seven of the 19 forest defenders facing terror charges are being held either with bond denied or set unaffordably high. Supporters are working to raise funds to ensure their freedom and cover legal fees, while refusing to abandon the forest defense.

“It’s evident the Atlanta-area law enforcement, including prosecutors, believe heavy charges will crush dissent. Instead, the movement seems to have only grown with every attack from the police,” said Sara.

She noted that the violent raid and Tortuguita’s killing has been “especially devastating and heart-wrenching” but that “many people are newly moved to action.” In the last week, as many as 50 acts of solidarity — from vigils to banner drops to protests — have taken place across the country to honor Tortuguita and to express support for those in Atlanta defending the forest against Cop City and the violence it represents.

The post The Crackdown on Cop City Protesters Is So Brutal Because of the Movement’s Success appeared first on The Intercept.

27 Jan. 2023
livro-armas-para-quem

Foto: Reprodução/Facebook

No dia em que tomou posse, o presidente Luiz Inácio Lula da Silva cumpriu uma de suas promessas de campanha e revogou uma série de normas do governo Jair Bolsonaro que facilitavam e ampliavam o acesso indiscriminado da população a armas de fogo e munições – muitas delas, outrora de uso restrito a forças policiais.

CACs – como são chamados caçadores, atiradores desportivos e colecionadores – influencers e recém-eleitos chiaram nas redes, mesmo que os pontos mais temidos, como a retirada de armas de circulação e fechamento de clubes de tiro, não tenham sido estabelecidos pelas novas regras. Pelo contrário, alguns especialistas acharam as mudanças bem moderadas.

Para o policial federal e especialista em Gestão de Segurança Pública e Justiça Criminal que participou da transição do governo Lula, Roberto Uchôa, esse primeiro decreto serviu apenas para dar um freio ao que ele chama de “farra armamentista”. Senadores da oposição anteciparam a intenção de derrubar as novas normas por projetos de decretos legislativo. Os PDLs podem revogar normas do Poder Executivo, mas precisam ser aprovados pelas duas casas do Congresso Nacional. Ou seja, não é um trabalho fácil ou rápido.

“Com a suspensão de novos registros de CACs, aquisições de armas e de registros de clubes de tiro, o governo deixou claro que reconhece haver um grave problema no controle e fiscalização do mercado legal de armas”, explicou, em entrevista ao Intercept, o conselheiro do Fórum Brasileiro de Segurança e autor do livro “Armas para Quem? A Busca por Armas de Fogo”.

Para ele, como o decreto foi de certa forma emergencial, o objetivo não era melhorar a regulação do mercado, o que será feito por meio de um grupo de trabalho futuro para discutir a elaboração de uma nova regulamentação para o Estatuto do Desarmamento. Mas a medida “é essencial depois do caos normativo criado por Bolsonaro”, ressaltou. O número de armas nas mãos de CACs já bateu a marca de 1 milhão, e a categoria já supera o total de PMs e de militares em todo o Brasil.

Confira os principais trechos da entrevista:

roberto-uchoa-livro

Foto: Reprodução

Intercept – O Exército tem, entre suas responsabilidades, gerir informações sobre CACS, mas assumiu que não sabe o tamanho do arsenal na mão da categoria em cada cidade brasileira. A Polícia Federal fica com outra parte da informação. Como ter uma política pública sem informação, nesse campo tão sensível?

Roberto Uchoa – Há um problema no país relacionado ao controle de bancos de dados. Muitas instituições públicas tratam os bancos de dados sob seu controle como verdadeiros patrimônios e resistem a compartilhar informações contidas neles. O Exército parece sofrer do mesmo problema. Foram quase 20 anos simplesmente ignorando determinação legal [do Estatuto do Desarmamento] sem ter sofrido nenhuma punição por isso. Acredito que isso só vai ocorrer agora porque já ficou provado que os militares não têm capacidade para controlar e fiscalizar a parte do mercado legal de armas de fogo sob sua responsabilidade. Porém, acredito que passar essas atribuições para a Polícia Federal não será a solução.

Por quê? Qual é então a solução?

A PF tem grande carência de servidores e não tem estrutura adequada para absorver mais atribuições. Como a fiscalização e controle de armas não é atividade fim nem do Exército, nem da PF, essa atividade tem sido sempre deixada de lado. A saída, a meu ver, é a criação de uma agência nacional de armas de fogo ou uma secretaria vinculada ao ministério [da Justiça e da Segurança Pública], focada em controlar e fiscalizar todo o mercado legal de armas de fogo, com banco de dados único e compartilhado com todas as instituições policiais do país. Não dá para elaborar uma política de segurança pública municipal adequada, por exemplo, quando sequer é possível saber quantas armas de fogo há na região.

‘Um atirador desportivo poder adquirir 180 mil munições por ano sem rastreamento é injustificável’.

Na sua pesquisa que deu origem ao livro, em clubes de tiro em Campos dos Goytacazes, no Rio de Janeiro, você constatou que metade dos frequentadores não participavam de competições. Há CACs então que não são CACs?

Durante a pesquisa, observei que um novo público estava se registrando como CAC apenas para possuir armas de fogo. Não eram pessoas interessadas na prática do esporte, e isso aconteceu em razão da criação do porte de trânsito, ainda no governo Temer em 2017. Chamado no meio por “porte abacaxi”, na verdade, era a permissão para que o atirador desportivo fosse e voltasse de sua casa ao clube de tiro com uma arma municiada e pronta para uso. Isso foi uma novidade, já que a regra era que a arma fosse levada em uma caixa, sem munição, para ser municiada somente no clube. A medida fez com que várias pessoas que tinham o interesse em andar armadas se tornassem CACs e se filiassem a clubes de tiro com esse objetivo. Isso ficou evidente também quando constatei que que a grande maioria dos CACs ia no máximo 10 vezes por ano ao clube, um pouco mais do que as oito vezes obrigatórias para manter o registro de atirador. Em 2021, foi aberto mais de um clube de tiro por dia. Posso afirmar com segurança que a grande maioria dessas pessoas que se registraram como CACs não tem interesse no esporte.

Vemos muitas notícias sobre CACs repassando armas para traficantes, milicianos, assaltantes de bancos. Os mecanismos de fiscalização e controle acompanharam a demanda vinda com o aumento do acesso a armas e munições?

A conexão entre os mercados legal e ilegal de armas de fogo nunca foi tão intensa como atualmente. A todo momento surgem notícias de criminosos tendo acesso a armas adquiridas legalmente e, para isso, aproveitam várias brechas na fiscalização dos militares, se é que podemos chamar isso de fiscalização. São casos de uso de terceiros para aquisição de armas, os famosos laranjas, aluguel de armas para uso em empreitadas criminosas e até mesmo criminosos se registrando como CACs para adquirir armas. Na festa das armas, o crime organizado foi um dos principais convidados. Um argumento comum utilizado por armamentistas é que criminosos sempre tiveram acesso a armas de fogo e que não teriam por que ir atrás de armas no mercado legal. Porém, só esquecem de pontuar que um fuzil no mercado ilegal custa cerca de R$ 60 mil, e um fuzil T4 [legal] da Taurus pode ser comprado por até R$ 20 mil, um bom desconto, e ainda é entregue onde o comprador estiver, sem necessidade de passar por aeroportos, portos e estradas. Um sonho para qualquer criminoso, comprar um fuzil mais barato, com garantia e entregue em casa.

Quais os impactos para a segurança pública destes quatro anos liberando armas e munições outrora restritos a policiais e militares?

Isso é péssimo e, se formos falar sobre o mercado de munições e o fato de elas não serem numeradas como as armas de fogo, aí é um verdadeiro pesadelo. A possibilidade de um atirador desportivo adquirir a cada ano até 180 mil munições e 20 quilos de pólvora –que dariam para recarregar cerca de 40 mil munições –, sem possibilidade de qualquer tipo de rastreamento, é um absurdo que não tem justificativa. Espero que esse ponto seja tratado com muita profundidade no grupo de trabalho.

Com tantos armamentistas eleitos, alguns deles apoiados abertamente pelo Proarmas, como serão as decisões tomadas nesse campo?

Acho que o grupo Proarmas terá menos impacto do que muitos acreditam. Há uma percepção entre muitos CACs de que a maioria dos eleitos utilizou o debate armamentista e a fixação de Bolsonaro sobre o tema para conseguir a eleição e que a prática cotidiana no parlamento difira dos discursos. Claro que irão continuar a bravejar, acusar e defender o armamento da população, mas acredito que surgirão cisões e intrigas entre os próprios, algo que já tem ocorrido de certa forma.

Com os incentivos à abertura do mercado de armas e munições a fabricantes internacionais, a Taurus trincou o monopólio que detinha no Brasil. Mas agora, o presidente da empresa, também presidente da Associação Nacional da Indústria de Armas e Munições, buscou diálogo com Lula e propôs restrições à importação. Como você enxerga isso?

Confesso que, quando li a carta da associação, fiquei curioso ao ver o apoio a restrições e a concordância de que o mercado legal de armas de fogo precisa ser melhor regulado. Inclusive apoiam a iniciativa da criação de uma agência nacional de armas que iria centralizar tudo relacionado ao mercado. Acredito que seja como o ditado diz: para não perder o braço, entrega-se a mão, porque, enquanto defende maior regulação, [a indústria] busca a volta do monopólio sobre o mercado, algo que existia desde 1965.

Não podemos demonizar a indústria armamentista. Não há problema nenhum em termos uma indústria forte que gere empregos e divisas para o país. que não podemos admitir é que sejamos um dos poucos países com uma forte indústria armamentista e que sofra com uma verdadeira epidemia de mortes por armas de fogo. Acredito que também não seja interesse deles que essa violência continue. É um sinal interessante e acredito que esse diálogo deve ser feito, mas sempre considerando o interesse da sociedade. Uma parceria da indústria com o poder público seria muito bem-vinda.

The post ‘Lula precisa criar Agência Nacional de Armas de Fogo e banco de dados único’, diz policial federal appeared first on The Intercept.

26 Jan. 2023

The White House is unwilling to say whether the U.S. will provide depleted uranium anti-tank rounds to Ukraine, according to the transcript of a press briefing, despite decades of research suggesting the weapon causes cancer and birth defects long after the fighting ends.

At a background briefing on January 25, an unnamed reporter asked the unnamed “senior administration officials” at the session whether the Bradley Fighting Vehicles now being sent to aid in Ukraine’s defense against Russia would come armed with the 25 mm armor-piercing depleted uranium rounds they’re capable of firing. As the reporter noted, firing these radioactive rounds “is part of what makes them the ‘tank killer’ that Pentagon officials called them.” The administration official who responded declined to answer, saying, “I’m not going to get into the technical specifics.”

But the technical specifics of these weapons could have dire consequences for Ukrainians. Depleted uranium is a common byproduct of manufacturing nuclear fuel and weaponry, and, owing to its extreme density, ammunition made from the stuff is a fantastic way of punching through the thick armor of a tank and igniting everyone inside. But these anti-tank rounds also happen to be radioactive, extremely toxic, and have been linked with a variety of birth defects, cancers, and other illness, most dramatically in Iraq, where doctors reported a spike in birth defects and cancers since the Gulf War, when the U.S. fired nearly a million depleted uranium rounds, and the 2003 invasion of that country.

“[Uranium] binds avidly to bio-molecules including DNA,” according to Keith Baverstock, a radiobiologist at the University of Eastern Finland, former World Health Organization researcher, and longtime scholar of depleted uranium arms and their effects. “Where [uranium] is used in munitions (bullets and bombs) to penetrate hardened targets (using its high density) the munition may shatter and since [uranium] is pyrophoric, catch fire and burn, producing oxide particles which are partially soluble and, thus, potentially a source of systemic [uranium] if inhaled.” Uranium particles may remain embedded in the land where these rounds were fired, too, presenting a possible environmental hazard years later.

While research linking depleted uranium weapons to adverse health effects is disputed — and heavily politicized given who’s fired it and at whom — experts told The Intercept that the risk alone means the White House owes the public transparency.

“It’s been a concern since the start of the invasion,” said Doug Weir, research and policy director with the Conflict and Environment Observatory, particularly given that Russia claims to have its own depleted uranium arsenal, though it’s not clear whether any have been used in Ukraine. Were the U.S. to provide uranium rounds for Ukraine to deploy against Russia, the odds might increase of Russia using its arsenal too (if it hasn’t already).

Generally speaking, Weir explained that “the most severe contamination incidents will occur where a vehicle with a full load of DU cooks off after being struck. This may be a tank, or a supply vehicle. Similarly, arms dumps containing large volumes of DU may create contamination incidents when destroyed or burned.” Weir added, “It is important that journalists pin down the U.S. government on its DU decision.”

Despite our popular associations with uranium, “the biggest problem there is metal pollution, not radiation,” explained Nickolai Denisov, an environmental scientist who has closely monitored the health impacts of the Ukraine war. “Still, pollution by heavy metals is dangerous and long term, hence transparency in these matters is indeed important.”

It can be uncomfortable to advocate against the use of a weapon that would no doubt be a near-term boon for Ukrainian resistance. As the International Coalition to Ban Uranium Weapons put it at the onset of the Russian invasion, “When there is war, everything else is secondary compared to sheer survival. On the other hand, the outcry because of environmental destruction must not be omitted if the country is to be habitable again afterward.”

If the Pentagon sends uranium rounds to Ukraine, it would surely have supporters: The ammo would be highly effective at destroying the armored vehicles Russia has poured into the country. As the White House faces — and bends to — growing pressure to share increasingly powerful arms with Ukraine, candid discussions about the unintended consequences of these arm transfers can become unpopular. But some scientists who’ve spent careers scrutinizing these weapons will likely remain opposed, despite the immense sympathy of the Ukrainian cause.

Asked about the White House’s refusal to discuss uranium rounds in Ukraine, Baverstock, the Finnish scientist, replied simply, “I would certainly hope that there is no intention to use it.”

The post White House Refuses to Say Whether Ukraine Will Receive Toxic Depleted Uranium Ammo appeared first on The Intercept.

26 Jan. 2023

Saadiq Long was on his way to a night shift at the transportation company he works at when he saw flashing lights behind his car. Two police cruisers were signaling him to pull over. This would be the third time in just over a month that Long, a U.S. Air Force veteran with no criminal record, had been pulled over without explanation by Oklahoma City police officers. The stops frustrated Long. He suspected he was being targeted.

After wondering again why he’d been pulled over, this time would be different: He would get some answers, however unsettling, about why it was happening.

Long, 52, was initially told by an officer who stopped him that his car had been listed in a gang database. After waiting in his car for roughly 20 minutes, the officer, according to a video that Long made of the incident, came back with a different story. The police officer told Long that his car had come up as a “hit” in a national watchlist database, one that “automatically alerts us that this vehicle is under suspicion for a terrorist watchlist.” The cop said that Long’s presence on the watchlist, rather than any driving-related infraction or accusation of criminality, was why he had been pulled over.

Long is no stranger to harassment by federal authorities. In 2015, he sued the U.S. government over his placement on the Department of Homeland Security’s no-fly list, as well as the larger terrorist watchlist from which that database is built. Eventually, Long was told his name was removed from the no-fly list, but, as the traffic stops in Oklahoma indicate, he has remained on the broader terrorism watchlist. His lawsuit in federal court related to that watchlist is still ongoing.

More immediately, Long is trying to deal with the very local consequences of being on the federal watchlist.

The U.S. government’s terror lists are often thought of as a tool for protecting against foreign national security threats. Yet in Long’s case, his continued presence on the list, which is secret and has no clear avenues for an individual to be delisted, has now resulted in an unending cycle of harassment from local police in his hometown of Oklahoma City, where he lives with his family.

Since the December 30, 2022, stop where he was verbally informed that his car was on the terrorist watchlist, things have gotten much worse for Long. In subsequent stops, he has been pulled over, handcuffed, and placed in the back of a police cruiser. In one incident, Oklahoma City police officers leveled their guns at Long while blaring orders over a loudspeaker instructing Long to exit his vehicle.

Having failed thus far in his case against the federal government, Long is now suing the Oklahoma City Police Department over the traffic stops, as well as their use of the federal terrorist watchlist as a pretext to target his vehicle. (The Oklahoma City Police Department declined to comment on the case.)

“He is not under investigation for anything, but this secret list is still terrorizing him whether on land or air.”

“As Saadiq Long drives the roads of his city, the Oklahoma City Police Department has been watching, aiming its vast network of cameras and computers at him repeatedly,” the lawsuit says. “Using a secret, racist list of Muslims that the FBI illegally maintains, officers have repeatedly pulled Saadiq Long over, sometimes at gunpoint, unlawfully arresting him twice in the last two months.”

“Despite the fact that he has never been arrested or charged for any crime, due to his presence on this list, he has lost work licenses, been denied visas, and been prevented from flying on airplanes,” said Gadeir Abbas, an attorney with the Council on American-Islamic Relations who is representing Long. “The officers who are pulling him over are just doing it because their computers are telling them to do so due to his watchlisting status. He is not under investigation for anything, but this secret list is still terrorizing him whether on land or air.”

In 2013, Long was prevented from boarding a flight to Oklahoma from Qatar, where he then resided. A U.S. citizen and Air Force veteran, the denied flight to Qatar was when Long first discovered that he was on the DHS’s no-fly list. Ever since, he has faced detention and other harassment while traveling.

Long sued in 2015 to clear his name from this secret database. In 2020, Homeland Security informed Long that he had been removed from the no-fly list and would not be placed back on absent further information. The government argued in court that the removal of Long’s name from the no-fly list had rendered his claims moot. Yet his removal from the no-fly list has not meant his removal from the broader terrorism watchlisting database, nor from the dire consequences of his status.

Civil liberties advocates, who routinely challenge the constitutionality of the terrorism watchlist in court, have grown increasingly alarmed by the expansion of its use by local law enforcement agencies. In some cases, these local agencies have been tasked with both monitoring individuals assigned to the list and expanding its scope. In 2014, The Intercept published the government’s secret guidance for selecting individuals to the watchlist. Disclosures in a lawsuit from 2017 revealed that the watchlist had grown to 1.2 million people, the majority of whom are believed to be noncitizens and nonresidents of the United States.

Presence on the watchlist can generate numerous problems for those targeted, from harassment and detention while traveling to the type of routine law enforcement threats and harassment Long now faces.

“His experience, unfortunately, is very common for people who are still on watchlists, even if they are not on the no-fly list. It is par for the course for anyone on a watchlist to experience more aggressive traffic stops,” said Naz Ahmed, a staff attorney with the Creating Law Enforcement Accountability and Responsibility project at the City University of New York School of Law. “Officers are instructed not to do anything that gives away that a person they have pulled over is on a watchlist or to carry out warrantless searches. But you can imagine how an officer may react who doesn’t have much training on this subject, and does not see it commonly, when they come across someone in this situation.”

A 2016 report by Yale Law School and the American Civil Liberties Union found that the U.S. government had “drastically expanded a consolidated watchlisting system that includes hundreds of thousands of individuals based on secret evidence.” The report documented how the system was now being used and interpreted by local police forces who were frequently acting upon “potentially erroneous, inaccurate, or outdated information.” Unlike the no-fly list, which has some limited redress processes, the broader terrorism watchlist remains largely opaque and unchallengeable.

“The FBI accepts almost every single ‘nomination’ to its list submitted by anyone,” Long’s lawsuit says. “This is because the FBI uses a standard so low that, based on a string of speculative inferences, any person can be made to qualify.”

Long’s lawyers filed suit against the local police department in Oklahoma City on Thursday, to compel its officers to stop pulling him over based on his watchlisting status. Long is also asking for financial compensation for violations of his Fourth Amendment rights. (The Department of Homeland Security did not immediately respond to a request for comment about the suit.)

Despite his recent experiences, Long has continued driving to work, doing errands, and visiting family in Oklahoma City but with increasing trepidation about how his watchlisting status is being interpreted by local police. Some police officers have been apologetic while pulling him over; others have responded aggressively, treating him as a threat, pulling out weapons, and causing him to fear for his life.

“For the past year or two, I noticed that the Oklahoma City police often followed me while driving, though without pulling me over,” said Long. “I got kind of used to it, but just recently, within the last month and a half, that’s when this started turning into something much more serious.”

“I was wondering if they were going to make my wife a widow now for something so silly, just for me being on this list, when they themselves don’t even know why I’m on it.”

The most recent incident, when he was pulled over earlier this month by a group of police officers who drew guns on him and ordered him out of his vehicle — an incident that Long also caught on his own dashboard camera — was the most alarming in his recent series of run-ins. A video of the incident shows police officers yelling contradictory instructions at him for several minutes while standing with guns drawn behind his vehicle.

“I was wondering if they were going to make my wife a widow now for something so silly,” Long said, “just for me being on this list, when they themselves don’t even know why I’m on it.”

The post Local Cops Harassed and Threatened U.S. Veteran Because of Terror Watchlist, Lawsuit Says appeared first on The Intercept.

26 Jan. 2023

The National Institutes of Health failed to effectively monitor a controversial grant that was used to study coronaviruses in China, according to a lengthy report released this week from the Office of the Inspector General at the Department of Health and Human Services.

The report takes to task both the NIH and EcoHealth Alliance, a New York-based nonprofit that received nearly $8 million in grant money from the NIH between May 2014 and July 2021, some of which it used to help fund coronavirus research at China’s Wuhan Institute of Virology. EcoHealth Alliance’s work with the Wuhan lab has plunged it into the center of the stormy debate over the origin of Covid-19.

Among other findings, the inspector general report concluded that EcoHealth Alliance failed to immediately notify the NIH about the unexpected results of certain U.S.-funded research in Wuhan that involved lab-manipulated coronaviruses, despite an obligation to do so. The report also found that since late 2021, the Wuhan Institute of Virology has not been responsive to NIH and EcoHealth Alliance requests to provide lab notebook entries and electronic files that could offer insight into the nature of the federally funded experiments performed at the lab. Given the lack of cooperation, the report recommended that the NIH consider referring the institute to the Department and Health and Human Services for debarment, which would block it from receiving NIH funding in the future. The NIH, in a written response, concurred with the inspector general’s recommendation concerning the Wuhan lab.

Of the three major NIH grants that EcoHealth Alliance has received since 2014, the most high-profile by far is titled “Understanding the Risk of Bat Coronavirus Emergence,” also known as grant R01ATI10964. The new inspector general report primarily focuses on this grant. First awarded in 2014 and renewed again in 2019, the grant awarded roughly $3.7 million to EcoHealth Alliance, with subawards totaling nearly $600,000 to the Wuhan Institute of Virology, according to the report. The grant money was meant to examine the risk of future coronavirus emergence from wildlife by screening bats for coronaviruses and conducting experiments on coronaviruses in cell culture and in humanized mice, among other research activities.

Between 2018 and 2019, the fifth year of the grant, researchers at the Wuhan lab infected humanized mice with hybrid coronavirus chimeras; such chimeras contain genes combined together from multiple naturally occurring bat coronaviruses. One of these chimeras, according to a 2021 letter from the NIH to Congress, unexpectedly caused mice to “become sicker” than they did when infected with a wholly natural bat coronavirus. Both the NIH and prominent scientists have said that these specific experiments could not have caused the Covid-19 pandemic; the viruses involved are too genetically distant from the pandemic virus.

Nevertheless, the inspector general wrote that EcoHealth Alliance should have immediately reported the experiment’s unexpected results to NIH, as the terms of its grant required, but it failed to do so in part due to limited guidance on reporting requirements from NIH. The inspector general also found that EcoHealth Alliance submitted its Year 5 progress report — which contained details of these unexpected results — almost two years late. The progress report was due in September 2019, but EcoHealth Alliance did not turn it in until August 2021, according to the report. The inspector general chastised both EcoHealth Alliance and NIH for failing to ensure that the progress report was submitted on time.

The Wuhan Institute of Virology, meanwhile, has continued to stonewall both the NIH and EcoHealth Alliance, according to the report.

“On November 5, 2021, NIH requested that EcoHealth provide certain scientific documentation from WIV substantiating research covering EcoHealth’s Year 4 (project period June 1, 2017, to May 31, 2018) and Year 5 (project period June 1, 2018, to May 31, 2019) progress reports to gain insights into the nature of the experiments that were performed,” the report says. “In turn, EcoHealth requested the information from WIV. However, based on records reviewed, we did not see evidence that EcoHealth obtained the scientific documentation. EcoHealth officials confirmed to us that WIV had not been responsive to its request to provide the scientific documentation and indicated it was unlikely to receive the requested information.”

The inspector general found other faults with the NIH and EcoHealth Alliance. In April 2020, amid pressure from the Trump administration, the NIH abruptly terminated its R01ATI10964 grant to EcoHealth Alliance. The inspector general found that the termination was not conducted in accordance with federal regulations and policies. The grant was later reinstated, though the NIH immediately suspended it. In August 2022, the agency terminated the grant’s subaward that was being used to fund the Wuhan Institute of Virology.

The 64-page report also found that EcoHealth Alliance had improperly used nearly $90,000 in grant funds since 2014, including for things like salaries and bonuses, travel, and tuition.

In a public statement and a written response to the inspector general, EcoHealth Alliance said it welcomed the oversight, but it pushed back on some of the report’s findings. The group said that it has reimbursed the NIH for the improperly used grant funds, which amounted to only “1% of the NIH grant awards to EHA.” It also objected to the inspector general’s characterization of the tardy Year 5 progress report and the unexpected experimental results it detailed, saying, among other things, that the results of the experiments in question have been misinterpreted. The NIH generally concurred with the inspector general’s findings and recommendations.

Lawrence Gostin, a professor of global health law at Georgetown University and an informal adviser to the Biden administration on biosecurity issues, said the inspector general’s report reveals “serious deficiencies that need to be corrected as a matter of urgency.”

“It shows clearly that NIH did not monitor and rigorously implement its policies to ensure the safety of the research it funded,” he said. “The public has the right to know in a transparent way how NIH is going to ensure rigorous oversight in the future.”

Sen. Roger Marshall — a Republican from Kansas, a physician, and a member of the Senate Health, Education, Labor, and Pensions Committee — said in a statement that the report “confirms NIH’s inability to properly oversee risky research funded by its massive $47.5 billion annual budget.”

The inspector general’s report comes on the heels of a major new draft report from national biosecurity experts that recommends increased oversight of federally funded research that involves dangerous pathogens.

The post NIH Urged to Consider Banning Wuhan Institute of Virology From Future Grants appeared first on The Intercept.

26 Jan. 2023

When Safari users in Hong Kong recently tried to load the popular code-sharing website GitLab, they received a strange warning instead: Apple’s browser was blocking the site for their own safety. The access was temporarily cut off thanks to Apple’s use of a Chinese corporate website blacklist, which resulted in the innocuous site being flagged as a purveyor of misinformation. Neither Tencent, the massive Chinese firm behind the web filter, nor Apple will say how or why the site was censored.

The outage was publicized just ahead of the new year. On December 30, 2022, Hong Kong-based software engineer and former Apple employee Chu Ka-cheong tweeted that his web browser had blocked access to GitLab, a popular repository for open-source code. Safari’s “safe browsing” feature greeted him with a full-page “deceptive website warning,” advising that because GitLab contained dangerous “unverified information,” it was inaccessible. Access to GitLab was restored several days later, after the situation was brought to the company’s attention.

The warning screen itself came courtesy of Tencent, the mammoth Chinese internet conglomerate behind WeChat and League of Legends. The company operates the safe browsing filter for Safari users in China on Apple’s behalf — and now, as the Chinese government increasingly asserts control of the territory, in Hong Kong as well.

Apple spokesperson Nadine Haija would not answer questions about the GitLab incident, suggesting they be directed at Tencent, which also declined to offer responses.

The episode raises thorny questions about privatized censorship done in the name of “safety” — questions that neither company seems interested in answering: How does Tencent decide what’s blocked? Does Apple have any role? Does Apple condone Tencent’s blacklist practices?

“They should be responsible to their customers in Hong Kong and need to describe how they will respond to demands from the Chinese authorities to limit access to information,” wrote Charlie Smith, the pseudonymous founder of GreatFire, a Chinese web censorship advocacy and watchdog group. “Presumably people purchase Apple devices because they believe the company when they say that ‘privacy is a fundamental human right’. What they fail to add is *except if you are Chinese.”

Chu tweeted that other Hong Kong residents had reported GitLab similarly blocked on their devices thanks to Tencent. “We will look into it,” Apple engineer Maciej Stachowiak tweeted in response. “Thanks for the heads-up.” But Chu, who also serves as vice president of Internet Society Hong Kong Chapter, an online rights group, said he received no further information from Apple.

“Presumably people purchase Apple devices because they believe the company when they say that ‘privacy is a fundamental human right’. What they fail to add is *except if you are Chinese.”

The block came as a particular surprise to Chu and other Hong Kong residents because Apple originally said the Tencent blocklist would be used only for Safari users inside mainland China. According to a review of the Internet Archive, however, sometime after November 24, 2022, Apple quietly edited its Safari privacy policy to note that the Tencent blacklist would be used for devices in Hong Kong as well. (Haija, the Apple spokesperson, did not respond when asked when or why Apple expanded the use of Tencent’s filter to Hong Kong.)

Though mainland China has heavily censored internet access for decades, Hong Kong typically enjoyed unfettered access to the web, a freedom only recently threatened by the passage of a sweeping, repressive national security law in 2020.

Silently expanding the scope of the Tencent list not only allows Apple to remain in the good graces of China — whose industrial capacity remains existentially vital to the California-based company — but also provides plausible deniability about how or why such site blocks happen.

“While unfortunately many tech companies proactively apply political and religious censorship to their mainland Chinese users, Apple may be unique among North American tech companies in proactively applying such speech restrictions to users in Hong Kong,” said Jeffrey Knockel, a researcher with Citizen Lab, a digital security watchdog group at the University of Toronto.

Knockel pointed out that while a company like Tencent should expected to comply with Chinese law as a matter of course, Apple has gone out of its way to do so.

“The aspect which we should be surprised by and concerned about is Apple’s decision to work with Tencent in the first place to filter URLs for Apple’s Hong Kong users,” he said, “when other North American tech companies have resisted Hong Kong’s demands to subject Hong Kong users to China-based filtering.”

The block on GitLab would not be the first time Tencent deemed a foreign website “dangerous” for apparently ideological reasons. In 2020, attempts to visit the official website of Notepad++, a text editor app whose French developer had previously issued a statement of solidarity with Hong Kong dissidents, were blocked for users of Tencent web browsers, again citing safety.

The GitLab block also wouldn’t be the first time Apple, which purports to hold deep commitments to human rights, has bent the company’s products to align with Chinese national pressure. In 2019, Apple was caught delisting an app Hong Kong political dissidents were using to organize; in November, users noticed the company had pushed a software update to Chinese iPhone users that significantly weakened the AirDrop feature, which protesters throughout the country had been using to spread messages on the ground.

“All companies have a responsibility to respect human rights, including freedom of expression, no matter where in the world they operate,” Michael Kleinman, head of Amnesty International’s Silicon Valley Initiative, wrote to The Intercept. “Any steps by Apple to limit freedom of expression for internet users in Hong Kong would contravene Apple’s responsibility to respect human rights under the UN Guiding Principles.”

In 2019, Apple publicly acknowledged that it had begun using a “safe browsing” database maintained by Tencent to filter the web activity of its users in China, instead of an equivalent list operated by Google. Safe browsing filters ostensibly protect users from malicious pages containing malware or spear-phishing attacks by checking the website they’re trying to load against a master list of blacklisted domains.

In order to make such a list work, however, at least some personal information needs to be transmitted to the company operating the filter, be it Google or Tencent. When news of Apple’s use of the Tencent safe browsing list first broke, Matthew Green, a professor of cryptography at Johns Hopkins University, described it as “another example of Apple making significant modifications to its privacy infrastructure, largely without publicity or announcement.”

“I suppose the nature of having a ‘misinformation’ category is that China is going to have its own views on what that means.”

While important questions remain about exactly what information from Safari users in Hong Kong and China is ultimately transmitted to Tencent and beyond, the GitLab incident shows another troubling aspect of safe browsing: It gives a single company the ability to unilaterally censor the web under the aegis of public safety.

“Our concern was that outsourcing this stuff to Chinese firms seemed problematic for Apple,” Green explained in an interview with The Intercept, “and I suppose the nature of having a ‘misinformation’ category is that China is going to have its own views on what that means.”

Indeed, it’s impossible to know in what sense GitLab could have possibly been considered a source of dangerous “unverified information.” The site is essentially an empty vessel where software developers, including corporate clients like T-Mobile and Goldman Sachs, can safely store and edit code. The Chinese government has recently cracked down on some open-source code sites similar to GitLab, where engineers from around the world are able to freely interact, collaborate, and share information. (GitLab did not respond to a request for comment.)

Notably, the censorship-evasion and anonymity web browser Tor has turned to GitLab to catalog instances of Chinese state internet censorship, though there’s no indication it was this activity that led to GitLab’s addition to the Tencent list.

While Tencent provides some public explanation of its criteria for blocking a website, its decision-making process is completely opaque, and the published censorship standards are extremely vague, including offenses like “endangering national security” and “undermining national unity.”

Tencent has long been scrutinized for its ties to the Chinese government, which frequently leverages state power to more closely influence or outright control nominally private firms.

Earlier this month, the Financial Times reported that the Chinese government was acquiring so-called golden shares of Tencent, a privileged form of equity that’s become “a common tool used by the state to exert influence over private news and content companies.” A 2021 New York Times report on Tencent noted the company’s eagerness to cooperate with Chinese government mandates, quoting the company’s president during an earnings call that year: “Now I think it’s important for us to understand even more about what the government is concerned about, what the society is concerned about, and be even more compliant.”

While Tencent’s compliance with the Chinese national security agenda ought not to come as a surprise, Knockel of Citizen Lab says Apple’s should.

“Ultimately I don’t think it really matters exactly how GitLab came to be blocked by Tencent’s Safe Browsing,” he said. “Tencent’s blocking of GitLab for Safari users underscores that Apple’s subjection of Hong Kong users to screening via a China-based company is problematic not only in principle but also in practice.”

Update: January 28, 2023
An earlier version of this story referred to Chu Ka-cheong by his given name instead of his surname. The references have been updated.

The post Apple Brings Mainland Chinese Web Censorship to Hong Kong appeared first on The Intercept.

26 Jan. 2023

Quando foi resgatada, em 2005, a onça Gavião pesava 100 quilos. Passou 11 anos de sua vida amarrada como um cachorro em um cabo de aço de 20 metros. Teve suas garras cortadas. Com ela, os policiais encontraram uma grande quantidade de armas. Naquele dia, a força-tarefa com Ibama, Ministério Público Federal e a Polícia Federal buscavam caçadores de onças na fazenda São Jorge, em Lambari do Oeste, no Mato Grosso.

Um vídeo com cenas de matança durante a caça de três onças havia sido vazado para o programa do Ratinho. A força tarefa foi atrás dos caçadores ilegais, mas não encontrou ninguém na fazenda – além de Gavião e das armas. A onça foi levada a um abrigo. Um veterinário chamado Éderson Viaro, conhecido como Dersão, foi apontado como o responsável pelos maus-tratos e pela caça ilegal.

Quase duas décadas depois, foi na fazenda de Viaro que encontramos o Clube de Caça e Tiro Esportivo do Estado de Mato Grosso.

Já mostramos no Intercept que os estados da Amazônia Legal tiveram uma explosão de clubes de tiro nos últimos anos. A expansão desse tipo de estabelecimento seguiu a rota do agronegócio e explodiu sob Bolsonaro. Os clubes cercam indígenas, municiam agromilícias e ajudam a explicar a violência acima da média da região. Agora, um novo levantamento feito com base em dados fundiários, cruzados com os registros de clubes de tiro do Exército, traz uma nova camada de informação: a maioria desses clubes fica em zonas rurais – e muitos dentro de fazendas, algumas com histórico comprometedor.

Encontramos, por exemplo, clubes de tiro em fazendas ligadas a sojeiros, políticos e acusados de diversos crimes, como lavagem de dinheiro e invasão de terras indígenas – além da caça ilegal.

Em 2004, um caçador preso em Cáceres apontou Dersão, dono da Fazenda São Jorge, como seu patrão. O fazendeiro teria conseguido escapar do flagrante da Fundação Estadual do Meio Ambiente no Parque Estadual do Guirá, região do Pantanal. Na ocasião foi informado que Dersão era considerado um caçador experiente e tinha autorização do Exército para transportar armas, sob a justificativa de fazer parte de clube de tiro, podendo conduzir o armamento para participar de competições.

Dersão também foi acusado de maus tratos contra animais silvestres depois da divulgação da notícia que a onça Gavião foi mantida em cativeiro em sua propriedade por pelo menos 11 anos. Vídeos divulgados na época mostravam até a participação de estrangeiros nos safáris organizados por ele e o uso de cachorros para auxiliar na caça.

Dersão foi acusado de maus tratos – uma onça foi mantida em cativeiro por ele durante 11 anos.

Foto: Reprodução

O Clube de Caça e Tiro Esportivo Mato Grosso foi fundado poucos anos depois das denúncias, em 2010. É presidido pelo advogado Marcelo Barroso Viaro, filho de Dersão. Em 2022, Dersão chegou a assinar um Termo de Ajustamento de Conduta com o MPF em 2022 em que se compromete a parar de caçar animais silvestres e realizar safáris.

A página do clube está desatualizada e o site, fora do ar. O advogado Marcelo Barroso Viaro foi procurado no número que consta em seu cadastro no Conselho Nacional da Ordem dos Advogados do Brasil, mesmo telefone que consta no site do clube de tiro. Em contato pelo Whatsapp, informaram que o celular não era dele.

Outro histórico preocupante no Mato Grosso é o clube Associação de Tiro de Alta Floresta, fundado em 2018, que fica na zona rural da cidade mato-grossense de mesmo nome. Seu presidente, André Bianchini Serafin, é também sócio da Brasil Tropical Pisos, uma fabricante que, segundo seu site, exporta pisos e decks de madeira maciça “para mais de 35 países”. O clube está localizado em um lote rural em nome da empresa.

A Brasil Tropical Pisos é ré em uma ação civil pública em que o Ministério Público Federal a acusa de fazer parte de um grupo que invadiu o Parque Nacional do Juruena. O espaço, criado em 2006, fica em uma área próxima à divisa do Mato Grosso com o Amazonas, em pleno arco do desmatamento.

A região ainda está em vias de ser delimitada como território indígena. Um despacho da Fundação Nacional do Índio, de 2011, aprovou as conclusões para reconhecer os estudos de identificação e delimitação da Terra Indígena Apiaká do Pontal e Isolados, onde moram indígenas das etnias Apiaká, Munduruku e por um grupo de indígenas isolados “cuja filiação étnica resta desconhecida”.

A Brasil Tropical Pisos foi condenada em primeira instância a deixar a área do parque em que se localiza a Fazenda Soberana, de 18 mil hectares, e não fazer novas ocupações na área. Em um recurso em abril deste ano, a empresa alega que o decreto de criação do parque caducou, sob o argumento que o processo não foi concluído, com o pagamento de indenizações aos antigos proprietários das terras. A Brasil Tropical afirma ainda que já deixou o local, além de ter ingressado com um processo de desapropriação indireta para receber pela área.

O presidente André Serafin não foi incluído na ação, sob o argumento que a empresa tinha patrimônio próprio para responder na justiça. O Intercept tentou falar com Serafin no telefone do clube de tiro, mas não houve retorno do contato.

Clube de um, fazenda do outro

O levantamento feito pelo Intercept também encontrou um clube de tiro funcionando dentro da Fazenda Santa Bárbara, uma produtora de soja que nos registros do Incra consta como pertencente à Amaggi, empresa da família do ex-governador do estado e ex-ministro da Agricultura Blairo Maggi.

Ao Intercept, a Amaggi afirmou que “foi compromissada” a venda da Fazenda Santa Bárbara em junho de 2018 e “desde então transmitida a posse” e que as atividades econômicas na área “vêm sendo realizadas pelo comprador” – razão pela qual afirmam não ter “nenhuma relação com o referido clube de tiro”. O Cadastro Ambiental Rural do imóvel foi cancelado, mas nele consta o nome da Rotta Agropecuária, uma produtora de soja, algodão e gado.

Localizado em Sapezal, no Mato Grosso, o Clube de Tiro e Caça Patriotas foi fundado em outubro de 2021, em meio ao boom de estabelecimentos do tipo no governo Bolsonaro. O clube de tiro não tem relação direta com os sócios da Rotta e nem da Amaggi – ele é presidido pelo empresário Henrique Caceres Ribas, dono de uma construtora no município de Sapezal.

Só no Mato Grosso, ainda encontramos outros cinco clubes de tiro dentro de fazendas – em quatro deles, os presidentes dos clubes são diferentes dos administradores das propriedades rurais.

A mesma situação acontece em Roraima. Lá, o clube de tiro Associação Desportiva Hubertus é presidido por Luiz Antonio Araujo de Souza e fica em uma área da Wilt Empreendimentos. A empresa está em nome da família do médico Jan Roman Wilt, morto em outubro deste ano. Ele foi preso durante a Operação Exodus da Polícia Federal em 2006, ao lado de outros seis empresários e de José Evandro Moreira, à época presidente da Companhia de Água e Esgoto de Roraima, e cunhado do então governador Ottomar Pinto, morto em 2007.

Wilt é apontado também como dono de hospital e hotel. Assim como outros presos na ação, foi acusado de crime contra o sistema financeiro, lavagem de dinheiro, evasão de divisa e formação de quadrilha, com a movimentação de dinheiro não declarado em offshores. A suspeita era de que o dinheiro teria se originado de desvio de recursos públicos e contrabando de diamantes, segundo a imprensa noticiou na época. O médico era um atirador premiado, com participação em diversos campeonatos nacionais.

A Wilt Empreendimentos e a Associação Desportiva Hubertus foram procuradas no telefone que consta em seus cadastros. O número, no entanto, pertence a um escritório de contabilidade onde não souberam informar o contato dos responsáveis por ambas.

Clubes em unidades de conservação

O levantamento do Intercept, feito pelo geógrafo Eduardo Carlini, especializado em cartografia, aponta que aproximadamente seis em cada dez novos estabelecimentos abertos entre 2019 e 2021 na região Amazônica ficam em áreas rurais, e não em cidades, onde há mais concentração populacional.

O número de novos clubes abertos em áreas rurais não é preciso porque a definição do que é área urbana e área rural em cada município é definido por legislação municipal, explica Carlini. A estimativa leva em conta a interpretação das imagens de satélite das regiões e o fato de alguns desses clubes estarem localizados em áreas identificadas como pertencentes a imóveis rurais, de acordo com o Instituto Nacional de Colonização e Reforma Agrária, o Incra.

Nem todos os clubes de tiro rurais apontados na pesquisa são abertos ao público.

A análise aponta ainda que existem seis clubes construídos dentro de unidades de conservação: três deles no Amazonas, dois em Rondônia e um no Acre, algumas delas em áreas públicas. São os casos da Área de Proteção Ambiental Lago do Amapá, no Acre, da Floresta Estadual de Rendimento Sustentável Periquito e do Rio São Domingos, em Rondônia, e das áreas de proteção ambiental da Margem Direita do Rio Negro – Setor Panuari-Solimões, Tarumã/Ponte Negra e Presidente Figueiredo/Caverna do Maroaga, no Amazonas.

Também existem 17 clubes de tiro dentro de antigos assentamentos. Em geral, aponta o geógrafo, não são os assentamentos de reforma agrária, mas sim antigos instrumentos de colonização usados pela ditadura brasileira, como o Projeto de Assentamento Rápido, o Projeto Integrado de Colonização e o Projeto de Assentamento Dirigido. Foram seis casos constatados no Mato Grosso, seis em Rondônia, três no Pará, um no Acre e outro em Roraima.

Nem todos os clubes de tiro rurais apontados na pesquisa são abertos ao público. Em agosto de 2021, tentei visitar dois deles em Rondônia. Para tentar chegar, usei aplicativos como o Google Maps, mas o acesso terminava em porteiras fechadas, sem qualquer informação na entrada. Nem mesmo os vizinhos sabiam da existência desse tipo de atividade no local. Rondônia, como o Intercept já mostrou, é o estado em que mais clubes foram abertos no governo Bolsonaro e também onde mais houve assassinatos de camponeses em 2021.

The post Encontramos clubes de tiro na Amazônia em fazendas de acusados de invadir terras indígenas, lavar dinheiro e até caçar onças appeared first on The Intercept.

25 Jan. 2023

A cadre of moderate Democrats and Republicans are joining together to revamp a political action committee to fight against progressive primary challengers to establishment Democrats.

With President Joe Biden’s former campaign manager as the PAC’s only consultant and a defense contractor executive as its treasurer, the Moderate PAC — not to be confused with the older Moderate Democrats PAC — stands to be an exemplar of the Democratic Party’s corporate-friendly, centrist wing. Its financial heft, though, comes from the other side of the aisle: So far, Republican megadonor Jeff Yass, the richest man in Pennsylvania, is virtually the only one putting money into the group.

“They would rather buy elections than let working-class progressives even run.”

“The corporate-backed establishment will stop at nothing to prevent more bartenders, nurses, principals, community organizers, and regular people from entering the Democratic Party in Congress,” Justice Democrats Executive Director Alexandra Rojas said in a statement to The Intercept. “They would rather buy elections than let working-class progressives even run. They will do everything in their power to make themselves richer at the expense of robbing poor and working-class Americans.”

Axios reported last week that the PAC planned to raise $20 million to fight off Democratic primary challengers in 2024 and “scare off” progressive groups like Justice Democrats that have backed several successful primary challengers and helped create a growing squad of progressive lawmakers in Congress. The article did not mention the group’s ties to the Biden campaign and the defense industry, nor the Republican funder.

As the number of progressives in Congress has continued to grow since 2018, the revamped PAC is one of several organizations launched in recent years to target progressive Democratic primary challengers and protect centrist incumbents. (The Moderate PAC did not respond to a request for comment.)

Ty Strong, the Moderate PAC president and founder, worked for a decade as a financial and business management analyst at Booz Allen Hamilton before joining a smaller financial firm in Pennsylvania in 2020 that closed abruptly the following year. He joined the Moderate PAC in October 2021. The committee’s treasurer, Marysue Strong, is chief financial officer at ProSync Technology Group, a defense contractor that provides IT services to the federal government. (Ty Strong did not respond to questions about his political experience or whether he and Marysue are related, though public records suggest that they are.)

In an op-ed for the Wall Street Journal last January, Ty Strong criticized what he called a “Democratic circular firing squad” and “progressive purity tests” that have threatened the political careers of centrist Democrats like Sens. Mark Kelly and Kyrsten Sinema in Arizona. If Democrats in purple states can’t find a way to “pivot back to the center and avoid death by circular progressive firing squad,” Strong wrote, “get ready for Republican control of both houses of Congress in 2023.” Less than a year later, Sinema announced that she was leaving the Democratic Party to become an independent.

The Moderate PAC has raised just over $1 million since last year, all from a single donor: Yass.

Yass, co-founder and managing director of a Philadelphia-based investment firm, gave the PAC $1 million in July. (The Democratic leadership’s house campaign arm, House Majority PAC, gave the Moderate PAC results from a poll in September 2022, which is recorded in disclosures, though no money changed hands.)

A vice chair at the Cato Institute, Yass has come under fire for using creative money-moving structures to avoid some $1 billion in taxes, according to ProPublica. Yass, most recently registered as a libertarian, occasionally gives to centrist local and national Democrats, but the overwhelming balance of his political contributions go to GOP candidates.

While Yass has recently expanded his focus to national politics and spent $47 million backing Republicans in federal elections last year, he has been most politically active in his home state of Pennsylvania. He backed Republican candidates up and down the ballot during last year’s midterm elections in the Keystone State.

Yass’s Commonwealth Foundation, a group based in Harrisburg, Pennsylvania, advocates to take the state’s public policy “back to its roots.” The group has drawn criticism for pushing policies that Yass’s critics say help him continue to accumulate wealth while avoiding taxes, like cutting funding for schools and public services. In addition to funding Republicans, Yass has funded state-level Democrats who align with his conservative objectives: He put money into the campaigns of Democratic officials in Pennsylvania who played a key role in the charge last year to try to impeach progressive Philadelphia District Attorney Larry Krasner.

As Yass has expanded his focus beyond Pennsylvania politics toward the national stage, his critics raised the alarm and warned both parties not to accept his money.

“Yass is a threat to democracy in Pennsylvania,” six organizers wrote in an op-ed last week titled “A deep-pocketed donor from Pa. is moving onto the national stage. That’s a problem.”

Yass has amassed his wealth in part by successfully avoiding paying taxes and used his financial influence to push candidates and policies for his own benefit, they wrote. “We need to call Yass’ donations what they are: money from a billionaire seeking to buy power,” the organizers wrote. “No one in public office should take money from billionaire Jeffrey Yass — Democrat or Republican.”

Correction: January 25, 2023, 8:00 p.m. ET
This story has been updated to reflect that, in 2023, Arizona Sen. Kyrsten Sinema left the Democratic Party to become an independent, not a Republican. 

The post Centrist Democratic PAC’s Sole Funder Is a Republican Megadonor appeared first on The Intercept.

25 Jan. 2023

Imagens de câmeras de segurança rodoviárias de 24 de novembro mostram um veículo Tesla Model S mudando de faixa e, em seguida, freando de forma abrupta na última pista da esquerda na San Francisco Bay Bridge, provocando a colisão de oito veículos. O acidente feriu nove pessoas, incluindo uma criança de 2 anos, e bloqueou o tráfego na ponte por mais de uma hora.

O vídeo e as novas fotografias do acidente, obtidas pelo Intercept por meio de uma solicitação da Lei de Registros Públicos da Califórnia, trazem a primeira visão clara do que aconteceu no dia 24 de novembro, confirmando os depoimentos de testemunhas na época. O motorista disse à polícia que estava usando o novo recurso “Full Self-Driving” do Tesla, conforme a ocorrência, antes do “sinal para a esquerda do Tesla ser ligado” e seus “freios serem ativados”, dirigindo-se para a faixa da esquerda, “reduzindo até parar diretamente no caminho [de um segundo veículo].”

Poucas horas antes do acidente, o CEO da Tesla, Elon Musk, fez um anúncio comemorando que o recurso “Full Self-Driving” da Tesla estava disponível na América do Norte, parabenizando os funcionários da empresa pelo “importante marco”. No final do ano passado, a Tesla lançou o recurso para mais de 285 mil pessoas na América do Norte, de acordo com a empresa.

O Tesla Full Self-Driving Beta agora está disponível para qualquer pessoa na América do Norte que o solicitar pela tela do carro, desde que tenha comprado esta opção. Parabéns para a equipe Tesla Autopilot/AI por alcançar este importante marco!

A Administração Nacional de Segurança do Tráfego em Autoestradas, ou NHTSA na sigla em inglês, afirmou que está iniciando uma investigação sobre o incidente. Os veículos da Tesla que usam seu sistema “Autopilot” de assistência ao motorista – o modo “Full Self-Driving” tem um conjunto expandido de recursos além do “Autopilot” – estiveram envolvidos em 273 acidentes registrados de julho de 2021 a junho de 2022, de acordo com dados da NHTSA. Os números mostram que os Teslas foram responsáveis por quase 70% das 329 colisões nas quais os sistemas avançados de assistência ao motorista estiveram envolvidos, bem como a maioria das mortes e ferimentos graves associados a eles. Desde 2016, a agência federal investigou um total de 35 acidentes nos quais os sistemas “Full Self-Driving” ou “Autopilot” da Tesla provavelmente estavam em uso. No total, esses acidentes mataram 19 pessoas.

Nos últimos meses, vieram à tona uma série de relatos nos quais motoristas de veículos Tesla reclamaram da “frenagem fantasma” repentina, que faz o carro acionar o freio em alta velocidade. Mais de 100 dessas queixas foram registradas na NHTSA em um período de três meses, segundo o Washington Post.

A criança ferida no acidente tinha 2 anos e sofreu uma escoriação na parte de trás do lado esquerdo da cabeça, bem como um hematoma, conforme o relatório detalhado do incidente obtido pelo Intercept. Em uma fotografia do acidente, um carrinho de bebê está parado em frente ao carro em que a criança se feriu.

An eight-car pile-up on November 24, 2022 on San Francisco’s Bay Bridge.

O engavetamento de oito carros em 24 de novembro de 2022, na Bay Bridge em São Francisco. Photo: California Highway Patrol

À medida que os fabricantes de carros tradicionais entram no mercado de veículos elétricos, a Tesla está cada vez mais sob pressão para se diferenciar. No ano passado, Musk afirmou que o desenvolvimento do recurso “Full Self-Driving” pela Tesla era “essencial”, chegando a dizer que “é a diferença entre a Tesla valer muito dinheiro ou basicamente zero.”

O termo “Full Self-Driving”, que significa “piloto totalmente automático”, foi criticado por outros fabricantes e representantes da indústria como sendo enganoso e até mesmo perigoso. No ano passado, a empresa de tecnologia de direção autônoma Waymo, de propriedade da controladora do Google, anunciou que não usaria mais o termo.

“Infelizmente, vemos que algumas montadoras usam o termo ‘piloto-automático’ de maneira imprecisa, dando aos consumidores e ao público em geral uma falsa impressão dos recursos da tecnologia de assistência ao motorista (que não é totalmente autônoma),” a Waymo escreveu em uma postagem de blog. “Essa falsa impressão pode levar alguém a assumir riscos sem saber (como tirar as mãos do volante), o que pode comprometer não apenas sua própria segurança, mas também a segurança das pessoas ao seu redor.”

Embora a Waymo não cite nenhum nome, a declaração foi “claramente motivada pela controversa decisão de Musk de usar o termo ‘Full Self Driving'”, conforme o site The Verge.

Na mesma linha, o principal grupo de lobby para carros autônomos recentemente mudou seu nome de “Coalizão da direção autônoma para ruas mais seguras” para “Associação da indústria de veículos autônomos”. A mudança, conforme o grupo, reflete seu “compromisso com a precisão e consistência na forma como a indústria, os formuladores de políticas, os jornalistas e o público falam sobre a tecnologia de condução autônoma.”

O Secretário de Transporte do governo federal dos EUA, Pete Buttigieg, também criticou as novas tecnologias de assistência ao motorista, enfatizando que elas não substituíram a necessidade de um condutor humano em estado de alerta. “Vou continuar dizendo isso até cansar: tudo o que você pode comprar no mercado hoje é uma tecnologia de assistência ao motorista, e não uma tecnologia de substituição do motorista”, disse Buttigieg. “Eu não me importo como essa tecnologia é chamada. Precisamos ter certeza de que estamos sendo claros sobre isso, mesmo que as empresas não o sejam.”

Embora os termos possam estar evoluindo, ainda não há restrições federais sobre o teste de veículos autônomos em vias públicas, embora os estados tenham imposto limites em certos casos. A Tesla não anunciou nenhuma mudança no programa ou em sua publicidade, mas o acidente foi mais um entre os vários ocorridos naquele mês. Vários dias antes do acidente na Bay Bridge, em 18 de novembro em Ohio, um Tesla Model 3 bateu em uma SUV da Patrulha Rodoviária do Estado de Ohio, que estava parada e com as luzes de perigo piscando. Aquele veículo Tesla também é suspeito de estar em modo autônomo e está sendo investigado pela NHTSA.

A NHTSA também está investigando um tuíte de Musk no qual ele disse que os usuários “Full Self-Driving” em breve teriam a opção de desativar as notificações de lembrete para que os motoristas mantenham as mãos no volante. “Usuários com mais de 10 mil milhas no FSD Beta deveriam ter a opção de desligar o volante”, postou um usuário do Twitter na véspera de Ano Novo, marcando Musk.

“Concordo, a atualização será em janeiro”, respondeu Musk.

Tradução: Antenor Salvodi Jr.

The post Exclusivo: Vídeo mostra acidente de carro da Tesla horas após Elon Musk anunciar ‘piloto automático’ appeared first on The Intercept.

25 Jan. 2023

Silicon Valley dodged a hail of congressional bullets through the last several months of 2022. A suite of antitrust legislation threatened to puncture the industry’s monopolistic business model, but the bills never left the upper chamber.

The legislative package represented the most advanced legislative threat to Big Tech since the industry’s birth. Several bills passed through the House of Representatives and others, sponsored by Sen. Amy Klobuchar, D-Minn., cleared the Senate Judiciary Committee.

Following the November elections, which saw Republicans take over the House, Big Tech’s Washington lobby kicked it into higher gear, working to make sure the threat didn’t materialize in the next Congress.

And they found an unlikely hero: Taylor Swift.

In mid-November, Swifties looking to secure tickets to the singer’s upcoming Eras Tour were foiled en masse by monopolistic incompetence of Live Nation, the parent company of Ticketmaster, which melted down amid the surge in demand. It was a poignant demonstration of monopolism run amok — and of what a mistake it had been for the Obama administration to have greenlighted the Ticketmaster-Live Nation merger that effectively ended competition in the ticketing industry.

Politicians dutifully denounced the decrepit company, and Big Tech spied an opening to deflect and distract.

The next day, the lobbying firm NetChoice, which represents the Big Tech conglomerates in Washington, urged Congress and antitrust policymakers to focus their attention on Ticketmaster.

“Congress and progressives like Amy Klobuchar are spending all this time going after tech leaders including Meta, Google, Amazon and Apple, which are far from monopolies,” NetChoice policy counsel Jennifer Huddleston said in an email November 16 to press and Washington power brokers. “Instead, the government should use existing laws and resources to protect consumers and investigate Ticketmaster’s anti-competitive practices in the concert marketplace.”

For its first hearing of the year on Tuesday, January 24, the Senate Judiciary Committee chose to target Live Nation, with Chair Dick Durbin, D-Ill., in a panel titled, “That’s the Ticket: Promoting Competition and Protecting Consumers in Live Entertainment.”

The hearing included testimony from Joe Berchtold, president and chief financial officer of Live Nation Entertainment; Jack Groetzinger, CEO of SeatGeek; Jerry Mickelson, CEO and president of Jam Productions; and musician Clyde Lawrence of the band Lawrence; and advocates on both sides of the issue.


The choice of hearing sends a signal regarding congressional priorities, and Swifties and Big Tech alike celebrated the coal-raking of Ticketmaster. Indeed, there are few companies less popular for better reasons than Ticketmaster, which controls some 80 percent of the concert venue market.


Big Tech’s targeting of Ticketmaster is far from altruistic, however. On Tuesday, Carl Szabo, vice president and general counsel of NetChoice, laid out the industry’s interest in the case. The Ticketmaster example, Szabo said in a statement, shows that, actually, there’s no need for all the work Congress and federal antitrust regulators like FTC Chair Lina Khan are doing to rethink competition policy in order to encompass industries like Big Tech. Ticketmaster is such a flagrant example of monopolistic practices, yet regulators have done nothing to break them up. If Washington won’t even bother with the low-hanging fruit, how can it chop down trees in Silicon Valley?


The industry also implied that reforming antitrust laws might make it harder to go after Ticketmaster, though that’s not the case. Szabo’s statement said:

We have seen Ticketmaster pressuring artists and venues to use their system, withholding thousands of tickets from sale to the general public, and helping ticket speculators circumvent anti-bot protections. At the same time, consumers can’t get access to tickets, and prices have continued to skyrocket—a clear example of consumer harm.

It’s obvious that this presents an antitrust enforcement action under the consumer welfare standard—the current legal framework in the U.S. for bringing antitrust cases. This already-existing legal criteria is meant to deter the government from targeting businesses based on political leanings. Under the consumer welfare standard’s 3-pronged test, the government must show a company’s market power, abuse of that power and proof that the company’s actions resulted in consumer harm. Clearly, LiveNation’s practices would fit under this framework.

Yet the Biden administration and progressives in Congress have been trying to change these effective guidelines to serve their own political goals. It’s mind-boggling that Biden’s Department of Justice and Federal Trade Commission have wasted taxpayer resources and pursued legally-questionable antitrust enforcement actions, while simultaneously failing to address this clear case of consumer harm and anti-competitive practice in the ticket sales market.

While we’re glad to see the U.S. Senate Judiciary Committee is taking these anticompetitive practices seriously, antitrust law would not need to be changed to bring an enforcement action against LiveNation/Ticketmaster for this fiasco.

The argument did not appear to persuade the Department of Justice, which announced on Tuesday it plans to sue Google — again — for monopolizing the online ad market.

In testimony prepared for the Judiciary Committee, Live Nation’s president argued that Ticketmaster wasn’t all that bad. “Ticketmaster comes under a lot of criticism, and I look forward to addressing that today,” he said in prepared remarks. “But I can say with great confidence that technologically Ticketmaster is a much better ticketing system today than it was in 2010.”

Aside from Big Tech, railroad workers and antitrust advocates have been pushing Congress to take a stand against a merger between two of the few remaining railroad companies that have yet to be consolidated, Canadian Pacific and Kansas City Southern. Durbin, the chair of the Judiciary Committee and Senate majority whip, has publicly opposed that merger.

The post Big Tech to Congress: Listen to Taylor Swift and Go After Ticketmaster, Not Us appeared first on The Intercept.

25 Jan. 2023

The North Carolina Supreme Court rejected a partisan gerrymandered congressional map drawn to heavily favor Republicans last year. The map violated the state’s constitution. The North Carolina legislature is now arguing before the U.S. Supreme Court whether the state legislature has the authority to override the court and ignore its own constitution. The case, Moore v. Harper, raises the prospect of the independent state legislature theory — a fringe theory that, if the Supreme Court rules in favor of, would give state legislatures unfettered authority, remove checks and balances, and undermine future elections. In the second episode of Dissent, host Jordan Smith and Elizabeth Wydra of the Constitutional Accountability Center closely examine oral arguments and unpack how a favorable or even a middle-ground ruling would radically change elections.

[Remixed Intercepted theme music.]

JS: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an Intercepted miniseries about the Supreme Court.

Neal Kumar Katyal: There are three Federalist Papers on the Elections Clause. Not a word, anything like this. What he would do is gut the ordinary —

Ketanji Brown Jackson: So -—

NKK: — checks and balances.

KBJ: And so, to me, it’s not so much the sort of troubling worry of we have the state legislature violating federal constitutional law because we as the Supreme Court and other courts in the federal system can look at that because it’s a question of did they violate the federal Constitution. Here, he’s saying — no, we do have to comply with the federal Constitution; what we can violate is the state constitution. And what I don’t — I can’t wrap my mind around that argument.

NKK: I can’t either, Your Honor. In — [fades out].

JS: Listening to the Moore v. Harper oral arguments about this notion of an independent state legislature, I — like Justice Ketanji Brown Jackson and former acting U.S. solicitor general Neal Katyal — could not wrap my mind around the logic of the case. 

As U.S. Solicitor General Elizabeth Prelogar also argued, the theory before the Supreme Court would “sow chaos” in state and federal elections.  

Elizabeth B. Prelogar: Throughout our nation’s history, state legislatures enacting election laws have operated within the bounds of their state constitutions enforced by state judicial review. This practice dates from the Articles of Confederation, and the Framers carried it forward by using parallel language in the Elections Clause to assign state legislatures a duty to make laws. Text, long-standing practice, and precedent show that the Elections Clause did not displace this ordinary check on state law-making.

Petitioners’ contrary theory rejects all of this history and would wreak havoc in the administration of elections across the nation.

Their theory would invalidate constitutional provisions in every single state, many tracing back to the founding.

JS: The basic idea behind this so-called theory is that the Constitution’s Election Clause gives to state legislatures — and only state legislatures — the power to set conditions for holding elections for federal office — like the House of Representatives. And that, essentially, no one — and definitely not a state supreme court — can really stop them from doing whatever they want, like restricting voting by mail or decreasing the number of polling places, or by shamelessly gerrymandering an election map.

To break down this case and its far-reaching implications, I’m joined by Elizabeth Wydra. She’s the president of the Constitutional Accountability Center, a think tank, law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. 

Throughout her tenure, she has filed more than 200 briefs on behalf of the center and so many others – including preeminent constitutional scholars and historians; state and local government organizations; and other groups, like AARP and the League of Women Voters.

Elizabeth, welcome to Dissent.  

Elizabeth Wydra: Thank you so much for having me. I’m thrilled to be with you.

JS: OK — to start, can you give us a little background on the case, tell us who the parties are, how it landed at the court? And what is the theory that the North Carolina legislators are presenting?  

EW: Yes. Absolutely. 

So there is a very important case at the Supreme Court this term called Moore v. Harper, and it comes from an extreme partisan gerrymander in North Carolina for the North Carolina state elections. A lot of people, I’m sure, are familiar with the idea of a gerrymander, but the way it worked out, in this case, was: Let’s say there was pretty much an evenly split popular vote in the state of North Carolina, under this extreme, partisan, gerrymandered map it would have resulted in like 10 Republican seats and four Democratic seats, even if it was an evenly split popular vote. 

So because the North Carolina State Constitution guarantees free elections, and here, it certainly did not seem as if it was a free election, because even if more people voted for Democrats, [laughs] they’d somehow end up with Republicans through the map, the North Carolina Supreme Court struck down the extreme partisan gerrymandered map and they went through a couple of iterations of this, and then a group of North Carolina Republican state legislators pushed the argument that because the Constitution gives to the state legislatures — the Constitution uses the term legislatures — the power to regulate the time, place, and manner of decisions, that this state Supreme Court of North Carolina couldn’t enforce North Carolina state constitutional guarantees, and basically that the North Carolina State Legislature had unfettered authority to draw the map however they want, even if it violated the North Carolina State Constitution. 

So we get up to the Supreme Court. And there, we see really a clash of the conservative majority against itself. [Laughs.] We see really spectacular legal advocacy from the side of the folks who are pushing back against this idea. And the backdrop for all of this is what’s known as the independent state legislature theory, which is what the North Carolina Republican legislators are pushing, this idea that state legislatures can do whatever they want with respect to elections without checks or balances, it would have an important impact not just on the drawing of congressional maps, or partisan gerrymanders, but it could have a huge impact on democracy itself. 

And so the independent state legislature theory is really, incredibly important. And that’s what’s at the heart of the Moore v. Harper case.

JS: We should be clear on the constitutional clause we’re talking about, and it seems like in the whole framework of the thing, it’s kind of unremarkable, and it’s just sitting there. 

But this is what it is. I was going to read it so everybody knows exactly what we’re talking about. 

Here’s the clause: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”

So if you could break down what’s happening here with this clause, and how the role of “the Legislature” is being used to further the objectives of the North Carolina legislators? 

EW: Yeah, so I guess as a backdrop: The Constitution, in many places, has layered authority for things. So sometimes state and local governments have certain authority; sometimes the federal government has the authority. Sometimes, like in this instance, the state has some authority subject to checks by the federal political branches, or the federal courts. And so what I want to acknowledge is that if you are a layperson and you’re reading this, it does say the word legislatures of the state — so you might be: Oh, OK, well, the North Carolina Republican state legislators have a good argument! 

No, they don’t! [Laughs.] And that’s because certainly when the Elections Clause was drafted by the framers of the Constitution in the 18th century, the idea that state legislative activity included other aspects of state lawmaking. So that would include a governor’s veto of state legislative action; it would include state court checks on state legislative activity. That was understood to be part of the legislative action of a state. 

In addition to that kind of mechanical understanding from the founding — not to be too shady about it, but the drafters of the Constitution, like James Madison, were extremely suspicious of, let’s say, the quality of state legislatures. So the idea that they would have given them in the Elections Clause, this unfettered power without any checks or balances, just doesn’t really match up to the feelings that the drafters of the Constitution had about state legislatures. 

But I think even more important, we don’t want to go on just vibes when it comes to interpreting the Constitution, as Justice Ketanji Brown Jackson noted in the oral argument that was held at the Supreme Court in Moore v. Harper, state constitutions create state legislatures. It’s all sort of the same organism. And so if you have the state constitution setting out certain guardrails for election processes, whether it’s with respect to voting rights, whether it’s with respect to the drawing of maps, or, as I’m sure we’ll talk about in more detail, the choosing of electors when it comes to presidential elections, which comes in Article Two of the Constitution, the idea that this those state constitutional restrictions apply to state legislative activity is just an organic part of how this stuff works. So what might seem like a reasonable argument at first blush really isn’t.

JS: Exactly. And we’ll get into some detail about all of these things for sure. But just first, for listeners, there were a lot of lawyers arguing this case – including current U.S. Solicitor General Elizabeth Prelogar and two former solicitors general, Neal Katyal and Donald Verrilli – each of whom argued against this independent state legislature thing — or, ISL thing, for short – on behalf of the various parties. And then there was lawyer David Thompson, representing the North Carolina state legislators who are hoping the Supreme Court will essentially bless this wholesale reimagination of the Elections Clause.

Here’s Thompson with his opening pitch to the justices:

David H. Thompson: Mr. Chief Justice, and may it please the Court: The Elections Clause requires state legislatures specifically to perform the federal function of prescribing regulations for federal elections. States lack the authority to restrict the legislatures’ substantive discretion when performing this federal function. 

As Alexander Hamilton wrote in Federalist 78, the scope of legislative authority is governed by the commission under which it is exercised.

JS: And here’s Katyal, essentially calling this whole idea utter madness: 

NKK: To accept Petitioners’ claim, you’d have to ignore the text, history, and structure of our federal Constitution as well as nearly every state constitution today. Petitioners say for two centuries nearly everyone has been reading the clause wrong.

That’s a lot of wrong — and a lot of wrong past elections. Frankly, I’m not sure I’ve ever come across a theory in this Court that would invalidate more state constitutional clauses as being federally unconstitutional, hundreds of them from the founding to today.

It’s worth taking a pause to think about what petitioners are saying. They claim the word “legislature” means a species of state law that has literally never existed.

JS: And here’s Prelogar, arguing as friend-of-the-court in support of the various respondents:

EBP: There is no category of state law that has previously existed that detaches the state legislature from the state constitution and allows it free rein to have whatever laws it wants without that state constitutional check. And we think that the text and the history and precedent forcefully reinforce this idea that the framers would have understood that when they were giving this law-making power, it carried with it those ordinary checks and balances.

JS: And Verrilli – basically, same vibe:  

Donald B. Verrilli, Jr.: I do want to just interject [laughs] one more time that they have said that this decision is a fair representation of North Carolina law. They are not challenging it under the standard I articulated or any other standard. They have made a different argument, which is that this is categorically a violation of the Elections Clause for state supreme courts to invoke — to apply — vague and general provisions. And so I’m happy to keep answering Your Honor’s questions, I am. But I just want to reinforce that they have conceded that this is a fair interpretation of North Carolina law.

JS: So, going back to the point that Verrilli was making, one of the many things, to me that’s really interesting – [laughs] or maybe baffling might be a better word – is that Thompson, arguing in favor of the ISL, on behalf of the legislators, made it clear that they agreed that the North Carolina Supreme Court had actually gotten the law right — that, in other words, they’d properly interpreted the state law and the state constitution, including its free elections clause, to determine that the map the Republican lawmakers had drawn was, essentially, an illegal gerrymander under state law. But I guess they’re arguing that it doesn’t matter that the [state] supreme court didn’t have the authority to go there.

You’ve got to go there. And also, I’m curious what you make of that concession – that they are about what the Supreme Court here did, that they actually got it right.

EW: That’s a really great question. And what Don Verrilli, who is a fantastic lawyer, is doing here is making clear to the Supreme Court that the proponents of independent state legislature theory in the Moore v. Harper case are swinging for the fences. They are asking for an extreme — extreme — understanding of what independent state legislature theory would mean, which is that even where the North Carolina State Supreme Court is getting the North Carolina constitution correct, and the state legislature engaged in unconstitutional under that state constitution partisan gerrymander, they cannot be — they cannot be — thwarted in their efforts to put this partisan gerrymander into place because, under their theory, state legislatures have unfettered authority. And what Don Verrilli is doing in that clip is trying to convince some of the perhaps more moderate, although it’s difficult to use that label with respect to the Supreme Court, but some of the more moderate conservative members of the court from adopting a middle ground. 

Because one thing that did seem fairly clear from the argument was that it would be tough for the Republican state legislators to get a five-justice majority for that extreme view that state legislatures can do whatever they want; they can unquestionably violate the state constitutional provisions and no one can do anything about it if you’re a member of the State Supreme Court. They did have a weird concession at one point that maybe a governor could veto it. But what Don is doing in that clip is trying to say: If you want to adopt ISL-lite, the idea that if a state Supreme Court has gotten its own standards wrong, then you could step in and say it improperly asserted authority over the state legislature. But that’s not even what they’re asking for. They are swinging for the fences with the broadest possible theory that they can.

JS: Yeah. At one point, earlier in the oral argument, Justice Sonia Sotomayor says the proponents of the ISL are trying to rewrite history. 

Sonia Sotomayor: Yeah, if you rewrite history, it’s very easy to do.

DHT: I’m not rewriting history, Your Honor.

What we’re saying is that when it says all elections, it’s referring to the offices that were created by that constitution. You can see that in Vermont. It says all freeholders shall be eligible for office. It’s not talking about the presidency of the United States, because there’s an age qualification. It’s talking about the —

SS: So why is it that in all of those states [sound of page turning] the legislatures understood that all elections meant that you were going to have paper elections, ballots, in both federal and congressional?

JS: This is a Supreme Court that professes this deep fidelity to original meaning, to this text, to this history. And yet here, Thompson had very few actual historical sites for this proposition that the state legislature is this free-wheeling, hands-off entity when it comes to federal elections. And this stands in stark contrast to the history y’all cite in your amicus brief. Could you tell us about the history, where the legislature comes from – and importantly, how this entity was viewed back at the founding?

EW: So I think this case is really remarkable, in that it puts the conservative supermajority on the Supreme Court’s fidelity to originalism to the test. Because here it’s unquestionably clear that the extreme proponents of the independent state legislature theory are arguing without any basis in constitutional text or history. 

At the time that the Elections Clause was written, the idea of legislatures of the states included checks and balances, like the state courts, like the governor, the idea that limits in state constitutions constrained state legislatures, and that was part and parcel of the idea of a legislature, were just commonly known and accepted by the drafters of the Constitution. 

And they had skepticism about state legislatures and the quality, perhaps, of their decision-making. And so they would never have given unfettered authority in the Elections Clause to state legislatures without those kinds of traditional checks from state courts and state constitutions. 

And I think what’s really interesting is, of course, we at the Constitutional Accountability Center make these originalist arguments against independent state legislature theory in our brief, but we have a lot of company in this case, from conservative originalists. Some of the leading lights of the conservative legal movement, like one of the co-founders of the Federalist Society, and several deeply conservative and well-respected, in conservative circles, judges, appointed by Presidents Bush, came out and said these arguments in support of ISL are complete bunk.

And so you have a cross-ideological, really just tsunami of argument against independent state legislature theory. And if you have these justices on the court who profess to be originalists ignoring all of that, it’s really going to say that this might not be so much about originalism and it might be more about pursuing a political partisan agenda.

JS: Yeah. And just sort of [laughs] naked power, it seems like. 

EW: Yeah. 

JS: Yeah. [Laughs.] There’s an interesting point — or I thought it was interesting, let me see what you think — where Justice Amy Coney Barrett is trying to get at history and saying: OK, well, at the time of the founding, would it be understood that the legislature had the power to set elections? And if that was a baseline understanding, then the second part of the clause, which allows for Congress to overrule them, would’ve been seen as a check on their power that already existed and not that this was some clause that was setting up some new power for the state legislature as Thompson seemed to be arguing. 

I think I read that right, but I was curious if you had any thoughts about that piece of that argument.

EW: Justice Coney Barrett, it was interesting to try to figure out where she was coming from. She definitely seemed skeptical of the North Carolina Republican lawyers’ presentation of history and also the conclusions that he was drawing about that, the concession that I think Chief Justice Roberts brought out of him that a governor could veto state legislative actions with respect to the elections clause — it didn’t seem to be consistent at all with his textual argument that legislatures get to do whatever they want. 

And so, Justice Coney Barrett did seem to pick up on that. And I think that’s why a lot of us, after listening to the argument, counted perhaps her and Chief Justice Roberts in the camp of people who weren’t going to maybe jump in with both feet on the independent state legislature theory. But I think there is definitely a possibility that there’s a majority on the court that could leave the door open for some variation of this. And that could do a lot of damage, even if the court doesn’t take the most extreme view of independent state legislature theory, which I certainly hope they will not.

JS: Another thing that struck me was that Justice Jackson kept coming back over and over again to a very basic question, which was: If the state legislature is a creation of the state constitution — and that’s where it derives its power — then how can it act outside the scope of power granted to it by the state constitution.

So, here’s a clip of one of those moments: 

KBJ: If the state constitution tells us what the state legislature is, and what it can do, and who gets on it, and what the scope of legislative authority is, then, when the state supreme court is reviewing the actions of an entity that calls itself the legislature, why isn’t it just looking to the state constitution and doing exactly the kind of thing you say when you admitted that this is really about what authority the legislature has? In other words, the authority comes from the state constitution, doesn’t it

DHT: No, Your Honor, it’s a federal function, and we know that from Leser. So this Court, in Leser, held it’s a federal function. When these duties are assigned to the states, that is a duty that is assigned by the federal —

KBJ: Yes, it’s a duty. The duty is to make this legislative determination — that is, the determination about elections. 

My question is: Where does the entity’s power come from to make any determinations at all, right? I mean, yes, I see that the federal Constitution is giving them the right to make a particular determination, but they’re not giving just anybody in the state that right. They’re giving somebody called the legislature. And, in order for us to have a thing called the legislature, we have to look at the state constitution to determine what that entity’s powers are, how they can be exercised; other than that, I don’t really understand how the legislature is authorized to act at all.

JS: Throughout the argument, she kept saying, basically: Yeah, yeah, yeah, yeah — but this! 

Right? So I’m curious what you make of this. Explain what she’s trying to get at over and over again here, that Thompson regularly seems to be sidestepping or just flat-out avoiding answering. 

EW: Yeah, I mean, it is a fundamental flaw in the logic. The proponents of independent state legislature theory are saying that they can act contrary to the very charter that creates them. Justice Jackson, one of the things that I really enjoyed seeing from her after she joined the bench, is the way that she just zeroes in on these fatal flaws in the logic of advocates’ cases. It’s probably terrifying if you’re arguing before the court [laughs] — but this was where she just really, I think, got them. 

And Thompson never came up with a good response to Justice Jackson, because there isn’t a good response. The idea that the state legislatures can ignore the state constitution, when the state constitution creates them, just doesn’t make any sense. And the state courts, applying the state constitution, that’s how those guardrails are applied. And she just really got to the point, and he never really was able to get around that.

JS: No. If not the state constitution, where would the legislature come from? [Laughs.] 

EW: Yeah. 

JS: And if it doesn’t come from anywhere else, then how can it not be bound by the thing that created it and, as you said, gives it the guardrails that it operates under in every other way?

EW: Exactly.

JS: I guess, except for: Asterisk! This one. [Laughs.]

EW: Yes. Right. 

It doesn’t make any sense. Thompson, the lawyer for the Republican legislators, never really came up with an answer. But some of the conservative allies of this argument on the court did try to suggest a way around that by saying, perhaps state courts, when it comes to the Elections Clause, have to be enforcing identifiable standards. And so they couldn’t be these vague, broad terms; they had to be identifiable standards. And so that was kind of the way that other conservatives tried to get around Justice Jackson’s trenchant point, but there’s no way under the most extreme theory that you can get around that.

JS: No. And also to that point, they’re like: Well, there’s these squishy things, like fair elections, what could that possibly mean? How could we possibly know? 

And I think there’s, at one point, where Sotomayor is like: What do we mean when we say it’s free speech? What do we mean, when we say due process?

I guess, in whatever the theory is about these mushy things, that somehow the federal court would be able to come in to decide, I guess, when it’s too mushy. 

EW: Yes. 

JS: But I mean, that makes no sense to me, either, because first of all, we have the same sort of mushy — that’s not the right word — we have the same sort of free-flowing kind of ideas that are embodied in our constitution that they still can’t agree on lots of times what they mean, let alone what they know what North Carolina meant by it, or Wisconsin or whoever else. I just thought this is a dangerous theoretical middle ground — 

EW: Yes. 

JS: — or we’re gonna give you some out here, and I find that — it scares me a little bit, because I don’t think that they’re better positioned to decide what that meant for the history of North Carolina or any other state than those Supreme Court justices in those states would be.

EW: Yeah, you’re exactly right. And this is where we get to some of the hypocrisy of some of the conservative justices and advocates, I think. We’re used to hearing from conservatives about federalism and states’ rights. And here, instead of broad deference to state courts, they floated this idea that unless state courts were doing something that was really along the lines of an identifiable and specific standard, the federal courts would come in and say, no, no, no — and that was a little unclear exactly what they were talking about there. 

But you’re exactly right: Our Constitution, and many state constitutions, have broad guarantees. And for a lot of us, that’s a good thing. We should have broad guarantees in the Constitution that then are translated into more specifics by legislation, by policymaking, by the political branches. But, often conservatives we’ve seen in this court, whether it’s with respect to reproductive rights, or other areas of equality and equal citizenship, [have] very limited vision of what those broad terms mean in the Constitution. And so there does seem to be a little bit of a freakout by some of these conservative justices about what are intentionally broad and sweeping guarantees. 

The idea of free elections, which is what we’re talking about under the North Carolina State Constitution, is a big term. It’s a big guarantee. It’s a broad guarantee. And it should be! [Laughs.] And so if we have a ruling from the court that cuts back on state courts’ ability to protect voter rights; to protect against suppression and obstacles being placed on the right to vote, in addition to partisan gerrymandering — not even getting to the fake elector scheme that former President Trump and his allies were trying to push using this same independent state legislature theory, there could be a lot of mischief made that that would be to the detriment of our democracy.

JS: Yeah. 

So we played that clip of Justice Jackson talking to Thompson, and Thompson tried to respond, and then Justice Sotomayor jumped in. 

DHT: Well, Your Honor, we know that’s not right because, in Leser, the people of Maryland tried to prevent women from voting, and the way they did that is they put in their state constitution a prohibition on adopting the Nineteenth Amendment, and then it came to this Court and this Court said that this is a federal function and that substantive limit of the state constitution was inapplicable. So that’s what we’re dealing with here, is a federal function.

SS: But that was because it violated the federal Constitution, not because it violated the state constitution. But let me go back to what I don’t fundamentally understand about this case …

JS: And a bit later Thompson and Sotomayor have a back-and-forth on the difference between substance and procedure. 

SS: Well, it seems that every answer you give is to get you what you want, but it makes little sense. We have more than one occasion that we describe the task in Mistretta of distinguishing between substantive and procedural rules as a logical morass that the Court is loath to enter.

DHT: And one —

SS: And I simply — what I don’t understand is the question that Justice Jackson asked you, which is: If judicial review is in the nature of ensuring that someone’s acting within their constitutional limits, I don’t see anything in the words of the Constitution that takes that power away from the states.

JS: And this kind of gets to, what you were talking about, the veto thing, I think.  So I’m hoping you can try to kind of explain the significance of this idea; this procedure versus substance thing hurt my brain a little bit.

EW: [Laughs.]

JS: Because, it seems like Thompson is saying: Cool, right, so the legislature passes something and if it has this rote hurdle to cross — say, it has to be presented to the governor, and she has the power to veto it under state law — well, that’s just “procedure.” But anything “substantial,” that I guess would give anyone else — especially the courts — the opportunity to change what the legislature has done, then that’s out.

But what I don’t actually get is: Don’t they both get to the same place? Like if there’s an election map and the governor is like: Nope! Veto! 

Isn’t that basically a substantial change? So, is this just weird parsing without actual difference? Can you just help my brain wrap itself around this [laughs]? Because I found it all, whew, a little hot.

EW: Yeah. No one was really buying this distinction. 

JS: [Laughs.]

EW: Well, I shouldn’t say that. I don’t think there was a majority of justices on the Supreme Court who were buying that distinction.

It seemed to be an attempt to say something like the procedures by which a decision is adopted or made can be enforceable by the state courts or by a governor. But the actual substantive guardrails can’t be enforced by state courts.

And that just doesn’t really make any sense, other than through kind of a results-oriented, backward, [laughs] reverse-engineered logic. And I think that part of this when it was argued a little more coherently by some of the friendlier justices on the court in their questioning of the lawyers who were pushing back on independent state legislature theory, was this idea of trying to limit some of the interference on state legislatures when it comes to election procedures. And that’s where we get to the ghost of Bush v. Gore, where all bad things come from. [Laughs.]

JS: I was just going to bring this up. So why don’t we just go to that. Because the thing that keeps coming up over and over is Bush v Gore. So just a reminder that it is the court case that essentially ended the recount in Florida back in 2000, and landed George W. Bush in the White House. 

So why, why, why Bush v. Gore? 

EW: I know, right? 

JS: And what’s the significance and how terrified should I be? [Laughs.]

EW: Yes. 

JS: That this has somehow raised its head from the — ugh.

EW: It was supposed to be fact-bound, but somehow it still sticks around. 

JS: It’s escaped its cage! [Laughs.]

EW: Yes. Exactly!

And it’s interesting because many of the now-justices when they were lawyers, the conservative justices, worked on the Bush v. Gore case, on behalf of President Bush. 

So, in Bush v. Gore, there was a side argument from the late Chief Justice Rehnquist, a very conservative jurist, who argued that Florida didn’t follow its own procedures. And so the Florida State Supreme Court just kind of got the procedures wrong. And so that was an acceptable reason for interfering with the Florida State Supreme Court’s adjudication and decisions in the recount. 

Because again, normally, there is this deference that we provide to state courts when it comes to their interpretation of state law. Because they presumably are the experts and not the federal courts, who are experts in federal law. And so this kind of side argument from Chief Justice Rehnquist focused on the state court, presumably getting it wrong. And this was different from the majority’s basis for their ruling, which was obnoxiously on the equal protection clause of the federal Constitution. 

All of that is a long way of saying that there was sort of this attempt by some of the conservative justices in Moore v. Harper, who might not be willing to take the train all the way to crazy town when it comes to independent state legislature theory, but might be willing to sort of get on for half of the ride to say that if it seemed like state courts were not properly enforcing the state constitution, that there could be limits on the way that they check state legislative activity when it comes to federal elections. 

But that is very unclear, really, what that means. And it really would open the door, I think, to all sorts of shenanigans, and litigation, and major questions about something as sacred and fundamental to democracy as the vote of the people being understood to be reliable and predictable in the sense of: you cast your vote; your vote gets counted; your vote has meaning. That is concerning.

JS: Yeah, actually, there’s a great — I’m sure you remember — there’s a great part where Justice Elena Kagan really hit home, the ramifications, the fallout, I guess, essentially, that would come from an embracing of the ISL. Let’s play that clip:

Elena Kagan: [T]his is a theory with big consequences. It would say that if a legislature engages in the most extreme forms of gerrymandering, there is no state constitutional remedy for that, even if the courts think that that’s a violation of the Constitution.

It would say that legislatures could enact all manner of restrictions on voting, get rid of all kinds of voter protections that the state constitution, in fact, prohibits. It might allow the legislatures to insert themselves, to give themselves a role, in the certification of elections and the way election results are calculated. 

So — and, in all these ways, I think what might strike a person, is that this is a proposal that gets rid of the normal checks and balances on the way big governmental decisions are made in this country. And you might think that it gets rid of all those checks and balances at exactly the time when they are needed most, because legislators, we all know, have their own self-interest. They want to get re-elected. And so there are countless times when they have incentives to suppress votes, to dilute votes, to negate votes, to prevent voters from having true access and true opportunity to engage the political process.

JS: Following on that, it’s sort of: If the Supreme Court rules in favor of North Carolina, and we could go full train to crazy town or even just make a stop at the depot, however you want to take that, how would that affect the way elections are run? And what could be the ramifications, even, maybe, beyond what Justice Kagan has outlined during argument?

EW: If you start from the facts of the Moore v. Harper case, and then work your way out from that, obviously it would allow extreme partisan gerrymanders to go forward without meaningful checks. This is a real problem. You have states where, again, the popular vote, if you look at what the votes said in terms of who people voted for, and then look at the way that they’re translated into representatives, it bears very little relation. In this case, it would have been if there was about an evenly split popular vote, it would have gone to about 10 Republicans and four Democrats. 

And so you know that the extreme partisan gerrymandering maps — just the facts of this case are very concerning. And because the U.S. Supreme Court has said recently that they do not think that the federal courts have a role to play in striking down extreme partisan gerrymanders, that really would allow them to continue without any recourse for voters. So if you then expand from that, worth looking at state limits on the right to vote, voter suppression, making it harder for people to cast their votes, whether that’s changing voting procedures or the way that you register to vote, those could go forward without any sort of state court checks and balances.

And then jumping from Article One of the Constitution to Article Two, which deals with the way in which the President of the United States is elected.

JS: Actually, let me stop you, because we might as well just put that in the mix now because I was going to ask you about that. Because there’s this other piece, right, which is this Article Two piece. Maybe you can say what that is, because I think the fear I hear, in part, from what I’ve heard and read, is sort of like that this is like one step. This form of independent state legislature is one step, and there could be something far worse. And that is based on this ISL buried in Article Two. 

So maybe you could just unpack that a little bit, because I’m not sure that everybody knows exactly what that is. Although [laughs] we’ve heard fake-electors-this, fake-electors-that, but how does this all kind of tie together, I guess?

EW: Right. So the section that we’re talking about from Article One of the Constitution in Moore v. Harper deals with the time, place, and manner of congressional elections of representatives, and the ability of the legislatures of the states to prescribe the manner of elections. 

And then when you get to Article Two, and the clause that deals with the election of the President, it talks about the legislatures of the state. So again, the same wording, being in control of setting the manner of choosing electors to the electoral college. 

So generally, when we’re talking about how to interpret legal phrases and words in the laws, if it’s interpreted one way, in a related context, you interpret it similarly in the other context. And so the concern is that if there is this unfettered authority given to state legislatures with respect to the time, place, and manner of congressional elections, in that part of the Constitution, when it comes to the manner in which electors are chosen for the president in Article Two of the Constitution, then that same extreme independent state legislature theory would apply — and then you would get yourself into situations like we saw being pushed by team Trump, where they were urging state legislators to put up a whole new slate of electors that went against the will of the people in that particular state, and that would have kept President Trump in power, despite the vote of the people to the contrary.

JS: So nothing that much to worry about. [Laughs.]

EW: No, it’s definitely something to worry about!

JS: Ugh.

EW: And I think sometimes I understand that for folks who are not deeply entrenched in this, your eyes start to glaze over when it’s gerrymandering, and independent state legislature theory, and all of this. And in some ways, I think that was very savvy for proponents of the independent state legislature theory to bring it to the court in this particular context, and not in perhaps the most dangerous context of trying to keep a president in power, despite the vote of the people electing a different president, you know? And so I think there should be no mistaking that that is what we would be headed toward if independent state legislature theory is accepted in this particular case.

JS: Neal Katyal’s opening was sort of lasered in.

NKK: Thank you, Mr. Chief Justice, and may it please the Court: For 233 years, states have not read the Elections Clause the way you just heard. There are two reasons to affirm: One is that when enacting legislation, there’s no such thing as an independent state legislature. The other is that North Carolina statutes authorized what the North Carolina court did.

JS: So, on our first episode of Dissent I spoke to legal analyst Jordan Rubin about why the court would even take up this case, right? The point that Katyal is making here underscores that question. What do you make of the court taking the case in the first place?

EW: Yeah. I think it’s important to remember that to take a case you need four justices. And to win a case you need five. So we already know that there are a number of justices on the court who either are embracing the theory, I’d put under that category probably Justices Alito, Gorsuch, and Thomas. And then at least, Justice Kavanaugh, who, during his time as an advocate, argued, in a certain sense, for the independent state legislature theory. So I’m not surprised necessarily that there are four justices who wanted to hear it. 

Again, it’s tough using this label for this court, but it’s all in context, the more quote-unquote moderate conservative members of that conservative supermajority, like perhaps Chief Justice Roberts, might have wanted to tweak the theory to make it a little more palatable and not quite the extreme version that is being put forth by some conservatives. We don’t know because of the lack of transparency around the certiorari process which four justices — or maybe more — voted to hear the case. But I can see some reasons why they might want to. 

And again, if you’re someone who wants the independent state legislature theory to move forward, it’s probably better to have it in the North Carolina redistricting case, rather than a Trump v. Democracy case. And I will say, fortunately, we saw in most of those efforts from team Trump, when they tried to push this, they were roundly rejected by pretty much every court that John Eastman and company tried to push this theory in.

So yeah, they didn’t need to take the case, because, as Neil Katyal said in his opening, there’s been pretty much unanimous, historical understanding that the legislative process includes state constitutional restrictions as interpreted and applied by state courts. And also Supreme Court precedent itself suggests that that’s not the way that state legislatures operate when it comes to the Elections Clause. And the response from the proponents of ISL was just like: Yeah, overturn all of that. [Laughs.]

JS: [Laughs.] Another thing that Jordan Rubin and I talked a lot about [is] how the court essentially sets its own agenda; it can take these cases; and so that when you come out with an opinion that’s maybe not this full embracing of this thing, and you get trapped in this thing where you’re saying: Oh, well, we have a compromise. And I think that again, it’s dangerous, right? Because they reach out and take this — there was no reason for them to do it. And, I don’t know, I just really didn’t have a sense — we talked about this a little bit — it was very hard for me to tell where people stood at the end of this. And I don’t know even if there’s a compromise opinion that goes halfway to crazy town, like, should we accept that?

EW: No! [Laughs.] 

JS: Do you know what I’m saying? Is that still a problem? Yeah, maybe just go for it.

EW: Yeah I think one of the hallmarks of the current Supreme Court is that because it is so, so conservative really the window has shifted for the types of arguments that are being presented to the court. And those of us who are court watchers, and just all of us in this country, should really resist that shift. Again, so just because you don’t do the absolute craziest thing if you still do something crazy and dangerous, that is still bad. You know?

And so, I think really what we’re seeing — and it’s not just in this case, we’ve seen it, across the spectrum of issues — is that these really extreme arguments are being presented to the court. And in some cases, this court is embracing those theories, with the complete overturning of Roe v. Wade, [which] was the most extreme version of that. 

And just as we’ve seen in some other cases, we’re prepared for the absolute worst, and then when it doesn’t happen, I think there is sometimes this tendency to be like: Oh, OK!

No — do not give in to that tendency here. I mean, look, it could be really bad if they fully embraced the extreme, really unhinged theory of the Republican North Carolina State legislatures. But even opening the door to some version of independent state legislature theory could be extremely dangerous to democracy.

JS: Yeah. And I guess I’ll just wrap up on this, which would be that, obviously, the faith in the Supreme Court has just really dwindled, particularly after Dobbs, which just hit so many people like a bomb. And the cases that they’re taking up now don’t seem to offer much hope for this super-measured court. So I’m curious about your sort of broader thoughts on the direction of the court and about calls for reform. And I’m curious for you, what would reform look like?

EW: When it comes to reforming the Supreme Court, the way that I like to think about it, is to put on the lens of what are the problems of justice that we’re seeking to solve. And those problems are deep. And while I think probably the most obvious, and maybe easy decision of what reform steps to take is adding more justices to the court simply because, we haven’t done it for a long time, the country has grown bigger, our ideas of who is included are broader — thank goodness. And so simply having a few more justices is probably just good government, regardless of what side you’re on. 

But looking deeper at the problems of justice we want to solve, there are real problems of access to justice, of equal justice [and] fairness. And so we at the Constitutional Accountability Center have just done a look at the way in which these questions were looked at during the Reconstruction period after the Civil War. And so many of the same issues were being debated: Should we expand the court? Should we strip jurisdiction? Should we require a supermajority of justices in certain cases?

And one of the things that they did, in addition to expanding the court for a brief period, was they passed legislation that sought to make good on the promises of fair justice and equality in the Constitution. And so I would urge us when we talk about court reform, to think more broadly than just adding justices on the court, although that’s probably step number one, and think more about what can we do to actually create the system of justice that is truly just and is the one that we want, and deserve. 

And for this court, I think that this case, the Moore v. Harper case, is a real test for them, because there is this overwhelming consensus amongst conservative and more liberal scholars that the independent state legislature theory is absolute bunk, even according to the conservative originalist arguments that a majority of these justices profess to follow. And so if they don’t follow that constitutional text in history, where it leads, which in this case would be to slam the door on independent state legislature theory, then it is just going to make absolutely clear that they’re following something other than the law, which many people already suspect is a partisan ideological agenda. And that would just further damage confidence in the court and the public faith that we should and deserve to have in our courts of law.

JS: Elizabeth, thank you so much for joining us. 

EW: Thank you for having me. I really enjoyed the discussion.

JS: That was Elizabeth Wydra, president of the Constitutional Accountability Center. 

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

 

The post Dissent Episode Two: Judicial Adventurism appeared first on The Intercept.

24 Jan. 2023

Twitter and YouTube censored a report critical of Indian Prime Minister Narendra Modi in coordination with the government of India, according to a top Indian official. Officials called for the Big Tech companies to take action against a BBC documentary exploring Modi’s role in a genocidal 2002 massacre in the Indian state of Gujarat, which the officials deemed a “propaganda piece.”

In a series of posts, Kanchan Gupta, senior adviser at the Indian government’s Ministry of Information and Broadcasting, denounced the BBC documentary as “hostile propaganda and anti-India garbage.” He said that both Twitter and YouTube had been ordered to block links to the film, before adding that the platforms “have complied with the directions.” Gupta’s statements coincided with posts from Twitter users in India who claimed to have shared links to the documentary but whose posts were later removed and replaced with a legal notice.

“The government has sent hundreds of requests to different social media platforms, especially YouTube and Twitter, to take down the posts that share snippets or links to the documentary,” Indian journalist Raqib Hameed Naik told The Intercept. “And shamefully, the companies are complying with their demands and have taken down numerous videos and posts.”

“The government has sent hundreds of requests to different social media platforms, especially YouTube and Twitter, to take down the posts that share snippets or links to the documentary.”

This act of censorship — wiping away allegations of crimes against humanity committed by a foreign leader — sets a worrying tone for Twitter, especially in light of its new management.

Elon Musk’s self-identification as a “free-speech absolutist” has been a primary talking point for the billionaire as he has sought to explain why he took ownership of the platform last year. Much of his criticism of Twitter revolved around its decision to censor reporting around Hunter Biden, the son of then-presidential candidate Joe Biden.

While Musk has been glad to stand up to suppression of speech against conservatives in the United States — something that he has described as nothing less than “a battle for the future of civilization” — he appears to be failing at the far graver challenge of standing up to the authoritarian demands of foreign governments.

After publication of this story, Musk, who helms Twitter’s communications efforts himself, tweeted a response. “First I’ve heard,” Musk wrote. “It is not possible for me to fix every aspect of Twitter worldwide overnight, while still running Tesla and SpaceX, among other things.”

YouTube spokesperson Jack Malon told The Intercept that the BBC documentary had been removed from the platform because of a copyright claim by the BBC, but declined to comment on takedown demands from the Indian government.

Pushing back against censorship of the BBC documentary, members of Parliament from the opposition All India Trinamool Congress party Mahua Moitra and Derek O’Brien defiantly posted links to it online.

“Sorry, Haven’t been elected to represent world’s largest democracy to accept censorship,” Moitra posted. “Here’s the link. Watch it while you can.” Moitra’s post is still up, but the link to the documentary no longer works. Moitra had posted a link to the Internet Archive, presumably hoping to get around the block of the BBC, but the Internet Archive subsequently took the link down. She has since posted the audio version on Telegram.

O’Brien’s post was itself taken down.


Twitter even blocked Indian audiences from seeing two posts by actor John Cusack linking to the documentary. (They remain visible to American audiences.) Cusack said he “pushed out the links and got immediate blowback.” He told The Intercept, “I received two notices that I’m banned in India.” The actor wrote a book, “Things That Can and Cannot Be Said,” with celebrated Indian scholar Arundhati Roy, a fierce critic of the Modi government.

The Gujarat riots, as the violence is sometimes known, occurred in 2002, when Modi was the chief minister of the state. A group of militants aligned with the Hindu nationalist movement, which encompasses Modi’s Bharatiya Janata Party, launched a violent campaign against local Muslims. Modi, who has been accused of personally encouraging the violence, reportedly told police forces to stand down in the face of the ongoing violence, which killed about 1,000 people.

“The documentary has unnerved Mr. Modi as he continues to evade accountability for his complicity in the violence,” Naik, the journalist, said. “He sees the documentary as a threat to his image internationally and has launched an unprecedented crackdown in India.”

Modi’s government in India regularly applied pressure to Twitter in an attempt to bend the social media platform to its will. At one point, the government threatened to arrest Twitter staff in the country over their refusal to ban accounts run by critics.

When Musk took over, Twitter had just a 20 percent compliance rate when it came to Indian government takedown requests. When the billionaire took the company private, some 90 percent of Twitter India’s 200 staffers were laid off. Now, the Indian government’s pressure on Twitter appears to be gaining traction.

A key difference may be Musk’s other business entanglements. Musk himself has his own business interests in India, where Tesla has been lobbying, so far without luck, to win tax breaks to enter the Indian market.

Whatever the reason for the apparent change, Twitter’s moves at the behest of Modi’s government bode ill for Musk’s claims to be running the company with an aim of protecting free speech. While Musk has felt fine wading into U.S. culture wars on behalf of conservatives, he has been far more reticent to take a stand about the far direr threats to free speech from autocratic governments.

One of the initial strengths of Twitter, and social media broadly, was the threat it posed to autocratic governments, as witnessed by its use during the 2009 protests in Iran and later the Arab Spring. Dictators across the region railed at the company for allowing what they considered to be forbidden speech.

Musk, however, has said he defers to local laws on speech issues. “Like I said, my preference is to hew close to the laws of countries in which Twitter operates,” Musk tweeted last year. “If the citizens want something banned, then pass a law to do so, otherwise it should be allowed.”

Google, which owns YouTube, has also come under intense pressure from the Indian government. The company’s public transparency reports show the Indian government has been a prodigious source of content takedowns, sending over 15,000 censorship demands since 2011, compared to under 5,000 from Germany and nearly 11,000 from the U.S. in the same time frame.

These reports show a varying level of compliance on Google’s part: Between January and June 2022, Google censored nearly 9 percent of items submitted by the Indian government but almost 44 percent during that span in 2020. YouTube did not immediately respond to a request for comment.

Akshay Marathe, a former spokesperson for the opposition party in control of the Delhi and Punjab government, told The Intercept that the social media takedown requests were part of a broader program of suppression. Modi “quite brazenly used India’s law enforcement apparatus to jail political opponents, journalists, and activists on a regular basis,” Marathe said. “His directive to Twitter to take down all links of the documentary (and Twitter’s shocking compliance after Elon’s commitment to free speech) also follows on the heels of the Modi government’s announcement that it will soon implement a regulatory regime in which it will have the right to determine what is fake news and order Big Tech platforms to delete the content.”

Update: January 25, 2023
This story has been updated to include a response tweeted by Elon Musk after the story’s publication as well as a statement from YouTube sent after publication.

The post Elon Musk Caves to Pressure From India to Remove BBC Doc Critical of Modi appeared first on The Intercept.

24 Jan. 2023

President Joe Biden is naming Jeff Zients to be his next chief of staff. Zients, a corporate Democrat, was previously in the White House helping steer its pandemic response and leading vaccination efforts. Before that, Zients helped oversee two health care companies embroiled in Medicare and Medicaid fraud allegations, which they paid tens of millions to settle. This week on Deconstructed, Intercept reporter Daniel Boguslaw and The American Prospect’s Robert Kuttner join Ryan Grim to discuss Zients’s past in the world of for-profit health care. Zients is also a former Facebook board member, worrying progressives pushing for the administration to rein in Silicon Valley.

Transcript coming soon.

The post Biden’s New Chief of Staff Might Be Very Bad News appeared first on The Intercept.

24 Jan. 2023

In June 1996, Janet Yellen — then a member of the Federal Reserve Board of Governors, later chair of the Fed herself, and currently secretary of the Treasury — wrote an extraordinary memo to then-Fed Chair Alan Greenspan. Anyone who wants to understand how the world works should read it, and thank Tim Barker, a historian who obtained it via the Freedom of Information Act.


What makes the memo so telling is threefold.

First, while expressed in abstruse technical language, it shares a perspective with the most radical left-wing critiques of capitalism. Yellen goes 90 percent of the way to proclaiming, “The history of all hitherto existing society is the history of class struggles.”

Second, Yellen is not, of course, calling for a proletarian revolution. Rather, as Noam Chomsky has pointed out, “vulgar Marxist rhetoric is not untypical of internal documents in the government,” just “with values reversed.” In Yellen’s case, she is making the case for, as she writes, the positive “impact of heightened job insecurity.” A rise in worker insecurity in the mid-1990s meant everyone was too scared to ask for raises, which meant businesses wouldn’t need to hike prices, which meant even with the falling unemployment at the time, the Fed didn’t need to raise interest rates to slow the economy and throw people out of work.

Third, Yellen is not a monster. Indeed, from the perspective of regular Americans, she’s about as good as it gets at the summit of power. The problem, for those of us down here on the ground, is her overall worldview. She might personally want things to be nicer but is certain the science of economics places incredibly sharp limits on the possible, and all we can do is try to make small improvements within those limits.

The memo is titled “Job Insecurity, the Natural Rate of Unemployment, and the Phillips Curve.” Barker learned of it from references in the books “Maestro” by Bob Woodward and “Empathy Economics” by Owen Ullmann. Greenspan distributed the memo to the entire Federal Open Market Committee, or FOMC — the group that decides interest rates — and it worked. As Ullmann puts it, “Yellen rescued Greenspan from his tight spot.”

Here’s the context in which Yellen was writing.

By mid-1996, unemployment had fallen to 5.3 percent. To understand the significance of this, it’s necessary to understand the standard economics model at the Fed (and the other centers of U.S. powers). There is, they believe, an inescapable trade-off between unemployment and inflation: If unemployment gets low, workers across the economy will have the bargaining power to bid up their wages, which will cause unstoppable inflation, which a few steps later will cause the rise of another Hitler. (Germany’s hyperinflation during the 1920s is generally believed to be one reason the country was open to extreme leadership.) You might think it would be nice for everyone to have jobs and good pay, but that just shows you are naïve and/or a Nazi.

Therefore, as previous Fed Chair William McChesney Martin said in 1955, the job of the Federal Reserve is to be “the chaperone who has ordered the punch bowl removed just when the party was really warming up.” They can’t let unemployment get too low, or the party will get out of hand.

With this in mind, the economics profession has developed a concept called the non-accelerating inflation rate of unemployment, or NAIRU. If you’re searching for it online, resist Google’s desire to instead search for “Nauru,” which is not an economic theory but rather a tiny island nation in Micronesia.

In 1996, NAIRU proponents generally agreed it was somewhere around 6 percent. Below that lay spiraling inflation, fascism, etc. It was therefore time for the Fed to get started slowing the economy. As Ullmann describes it, members of the FOMC were “prodding Greenspan to raise interest rates right away.” But Greenspan was resisting this; no one knew for sure where the NAIRU was.

This quasi-liberal stance was remarkable, given that Greenspan was an acolyte of Ayn Rand. In 1957, the New York Times published a letter from Greenspan in which he declared that her novel “Atlas Shrugged” was “a celebration of life and happiness. Justice is unrelenting. Creative individuals and undeviating purpose and rationality achieve joy and fulfillment. Parasites who persistently avoid either purpose or reason perish as they should.”

But Greenspan’s rationale was not that higher inflation was OK. Rather, as he eventually explained, “greater worker insecurity” had made possible a “healthy economic performance” with both low inflation and lower unemployment. This increased worker insecurity, he believed, could be measured by surveys finding that in 1991, in the middle of a recession, 25 percent of workers agreed with the statement, “I am frequently concerned about being laid off” — yet five years later, with far lower unemployment, 46 percent did.

Yellen’s memo was an attempt to provide intellectual support for Greenspan’s belief that increased worker insecurity could coexist with low unemployment. She writes in the memo that “unemployment serves as a worker-discipline device.” Therefore, even with low overall rates of unemployment, “an increase in job insecurity due to changing technology or other factors could induce a permanent decline in the natural rate of unemployment, along with a reduction in real wages and an increase in the markup of prices over unit labor costs.” (The “natural rate of unemployment” is related to but not exactly the same thing as the NAIRU.) And as Yellen describes it, there were several plausible ways in which the U.S. economy had changed structurally that could increase job insecurity.

Baked into the economy, Yellen says, is class conflict. “Real wage bargains,” she explains, “depend on the size of the ‘surplus’ available to be split between workers and shareholders. The bargaining power of each side determines the share of the surplus that it can extract. Bargaining power, in turn, depends on each side’s outside opportunities. As unemployment declines, other things equal, labor’s bargaining power rises, resulting in higher real wage settlements.”

But other things are not always equal, because there are factors beyond the unemployment rate that can “translate into a decline in workers’ bargaining power.”

“Improvements in the ability of firms to outsource production — domestically or internationally — [and] new labor-saving technology,” according to Yellen, “improve management’s options and serve as a threat to workers. Even if management does not actually use these options, their availability lowers workers’ bargaining power.” She does not mention the North American Free Trade Agreement, which had entered into force just a few years earlier in 1994, but this was surely part of the dynamic she describes.

Furthermore, “lower unemployment benefits or decreased unionization could similarly result in a decline in workers’ bargaining power.”

All of these points have of course been made repeatedly by various critics of capitalism. So it is quite something to hear them in Yellen’s voice, even if she is presenting them as having positive effects.

And that’s the most important thing to understand about the Yellen memo. In her view of how economics works, the insecurity that working people hate is positive for everyone, including them, because this is the best we can do without provoking catastrophe. But is she right?

To start with, is a somewhat higher level of inflation truly such a terrifying specter? Creditors hate inflation because it causes their financial assets to decline in real value. But most people might prefer that if jobs are plentiful and wages aren’t falling behind inflation (although that, of course, can happen).

Beyond that, does increased worker power necessarily lead to higher inflation? Perhaps firms could avoid increasing prices by reducing profits or executive salaries. Maybe employees would be willing to forgo higher pay in exchange for a voice in how work is organized. Certainly they’d be concerned about raising the price of their company’s product if they owned the company. Everyone would also be worried more about inflation decreasing the value of financial assets if they had more such financial assets.

But Yellen’s conventional mind will never ask such questions, and no one with a more flexible imagination will ever sit in the Treasury secretary’s chair. (Tellingly, here in 2023, she is expressing no interest in creative measures such as minting a $1 trillion platinum coin to prevent the GOP-controlled Congress from driving the U.S. government into a pointless, catastrophic default.) Her memo is a compelling demonstration that there are people at the top who are trying to make this the best of all possible worlds, but the best world they can conceive of is still terrible.

The post In Confidential Memo, Treasury Secretary Janet Yellen Celebrated Unemployment as a “Worker-Discipline Device” appeared first on The Intercept.

24 Jan. 2023

The recent Rachel Maddow podcast “Ultra” is shocking, if you retain the ability to be shocked by American politics. Moreover, it’s shocking in both a regular sense and a meta-sense. In the regular sense, it recounts how several dozen members of Congress collaborated with Nazi Germany to try to prevent the U.S. from entering World War II — even as saboteurs seem to have blown up various American munitions plants, including one explosion in New Jersey that killed 52 people. What’s shocking in the meta-sense is that before this podcast, all of this incredible story had completely fallen out of history.

However, one thing that even “Ultra” does not include is the subsequent political trajectory of Rep. Hamilton Fish III, a key figure in the aforementioned Nazi conspiracy. Fish was born in 1888 and lived until 1991, remaining unrepentantly hard right to the end of his long life. Most notably, during the 1980 presidential campaign, he became a boisterous supporter of Ronald Reagan. He even authored a short book titled “Americans, Save Your Freedom and Your Lives,” featuring a cover with an illustration of a mushroom cloud and the tagline “Peace Through Strength and Reagan!”

save-your-freedom

The book “Americans, Save Your Freedom and Your Lives” by Hamilton Fish III.

Photo: Jon Schwarz

Hamilton Fish III usually went by “Ham,” so let’s start by acknowledging that “Ham Fish” is funny. It’s like being named Drumstick Cow or Sirloin Antelope.

Also, Ham Fish was one of six Hamilton Fishes in a prominent New York political family. During the mid-1850s, Hamilton Fish #1 was governor of New York, then a U.S. senator from New York, and then secretary of state during the Ulysses S. Grant administration. Confusingly, there were two Hamilton Fish IIs. One was the son of Hamilton Fish #1 and father of Hamilton Fish III. Another was Hamilton Fish #1’s grandson, a son of another one of Hamilton Fish #1’s children. (Hence this supplemental Hamilton Fish II and Hamilton Fish III were cousins.) Politically, the family has been all over the place; for instance, Hamilton Fish V was once publisher of The Nation and the New Republic before becoming one of the many men to resign in 2017 following harassment allegations.

And please do not confuse any of them with Hamilton “Albert” Fish, aka the Brooklyn Vampire and a notorious 1920s cannibal and serial killer. This whole subject is what Wikipedia disambiguation pages were made for.

Ham Fish III went to Harvard and then fought in World War I. When the war was over, he was intimately involved in the founding of the American Legion, co-authoring the preamble to the Legion’s constitution. If the political orientation of the American Legion has slipped your mind, here’s how its National Commander Alvin Owsley described it in its early days: “The American Legion stands ready to protect our country’s institutions and ideals as the Fascisti dealt with the destructionists who menaced Italy. … Do not forget that the Fascisti are to Italy what the American Legion is to the United States.” So you can see where this is headed.

Fish was elected to the House of Representatives as a Republican in 1920. During the 1930s, he became a ferocious opponent of Franklin D. Roosevelt and the New Deal. Fish later said, “I don’t hate Roosevelt — but frankly, I despise him,” whatever that distinction means.

That brings us to the period covered by “Ultra.” Soon after Adolf Hitler took power in 1933, Fish contributed to a book sympathetic to Nazism, which had (according to Fish) saved Germany from the menace of international communism. Fish headlined a pro-Nazi rally at Madison Square Garden in 1938. By the beginning of World War II, Fish was ranking member of the House Foreign Affairs Committee, a prominent isolationist, and, as Maddow puts it, “kind of the team captain for the America First movement in the House.” The America First movement was founded in 1940 to keep the U.S. out of World War II. Some of its eventual 800,000 members were principled anti-interventionists, and some were antisemites who felt Hitler had a lot of promising ideas.

In September 1941, a federal prosecutor had convened a grand jury to investigate Nazi activities in the U.S. It investigated Sen. Ernest Lundeen, a Republican from Minnesota, who’d been paid by a Nazi agent named George Sylvester Viereck to deliver speeches on the Senate floor and elsewhere written by Viereck. Federal agents raided the apartment of one of Viereck’s employees — but before they did, a man was witnessed absconding with huge bags of material that were transported to a storage room on Capitol Hill and to the D.C. headquarters of America First.

That man was George Hill, a top staffer for Fish. And the storage room was controlled by Fish. The Washington Post published a story on the front page: “Fish’s Office Helped Remove Data Wanted in Nazi-Agent Inquiry.” Some of the papers that went to America First had been promptly set on fire.

It turned out that Fish’s office was the center of a German plan to enlist members of Congress to spread Nazi propaganda across the country, all using the congressional “franking privilege,” a term which sounds dirty but is not. It just means that members of Congress have the right to mail material to their constituents for free. Envelopes from Fish’s office were used to send out order forms so recipients could get copies of “The Protocols of the Elders of Zion.” As Nancy Beck Young, one of the historians featured on “Ultra,” puts it, “Fish worked to sabotage American democracy from the center of American democracy, the U.S. Capitol” — with it all paid for by the U.S. government.

Hill denied it all and was convicted of corrupt perjury. Eventually, he confessed that he’d done everything on Fish’s orders. Fish was subpoenaed by the federal prosecutor but evaded legal accountability. However, the publicity was so bad that after 24 years in the House, he was defeated in 1944. In a speech bidding farewell to Congress, he said, “It took most of the New Deal administration, half of Moscow, $400,000, and [New York] Gov. [Thomas] Dewey to defeat me.” This period is where “Ultra” ends.

But this was not the end of Fish’s political engagement. After the Allied victory in the Second World War, the tallying of the dead, and the opening up of the concentration camps and crematoria, you might think Fish would have reconsidered his general perspective. You would be wrong.

In 1946, he published a book titled “The Challenge of World Communism,” followed by “The Red Plotters” the following year. He then kept his hand in during the 1970s with several more works, including the awkwardly named “An American Manifesto of Freedom in Answer to the Manifesto on Communism (1848).” Another, “FDR, the Other Side of the Coin: How We Were Tricked Into World War II,” excoriates Roosevelt for the U.S. alliance with Stalin’s Soviet Union during the war. Yet Fish was curiously solicitous of the Nazis’ 1939 pact with the Soviets, writing, “Hitler would not have made an alliance with Stalin and communism, not if he could have avoided it.”

It seems fair to refer to Fish’s next work, “Americans, Save Your Freedom and Your Lives,” as a screed. It includes all of the right’s peculiar bugaboos circa 1980.

Here’s a sample of its prose:

I have written this book so that the people might know the truth which has been deliberately kept from them by the Carter Administration for the past three years. The main issue is the survival of the American people and our own country. … There is no substitute for the truth to enable you to act in your own defense, before you are led as sheep to the slaughter in a Soviet holocaust.

For instance, did you know that “The Soviet Defense is Thirty Times Stronger Than Ours”? Perhaps you did not, given that the Soviet Union no longer exists. We also must be extremely concerned about “Trilateralism and the Panama Canal.” (Horrifyingly enough, the globalists were plotting to give away the Panama Canal to Panama.) The book also includes “An Appeal to the Blacks to Return to the Party of Abraham Lincoln.” “The Blacks” did not do this, with Reagan winning a rousing 14 percent of the African American vote.

Fish certainly was a recognizable representative of a large faction of America’s conservative movement.

The point here is that Ham Fish III was absolutely not an outlier on the U.S. right. He was not completely predictable — for instance, he was a strong, sincere proponent of the integration of the U.S. military. He opposed the Vietnam War (although he supported the Gulf War and America’s invasion of Panama). Plus, when he was 96 years old, his third wife divorced him when he 1) didn’t get her any presents for Christmas and 2) tried to make her host chickens on her property. Then he squeezed in one last wife before dying.

But Fish certainly was a recognizable representative of a large faction of America’s conservative movement. He was neither the first nor the last member to play enthusiastic footsie with fascism. His Reagan book features the right’s standard mania for conspiracism, presenting all issues as apocalyptic threats, threats destined to be forgotten when the apocalypse fails to materialize.

On Fish’s 100th birthday in 1988, one of his descendants remarked that “the resurgence of conservatism in the last 10 years or so in the country has given him enormous pleasure.” Given Fish’s perspective, he was right to feel satisfaction. But the rest of us should listen to “Ultra” and consider exactly what the renaissance in Fish’s worldview signifies.

The post Rachel Maddow Stopped Short in Her Podcast on Nazi-Loving Hamilton Fish III appeared first on The Intercept.

24 Jan. 2023

Less than two years after a British private equity firm acquired the campaign tech firm that holds the Democratic Party’s most sensitive data, the new parent company laid off at least 140 people.

In a companywide email on January 12, Mark Layden, the chief executive of Bonterra, the new merged company created by the private equity firm, notified staff that, in its pursuit of “long-term, efficient growth,” 10 percent of the company would be let go. Within the next several minutes, people who were laid off received emails telling them that they no longer had a job. Numerous employees shared their experiences on social media.

“Went to get coffee, by the time I came back to my comp I was locked out of all of the systems,” one Bonterra employee wrote on Twitter. “Folks lose jobs everyday but there was a better way. This was just tacky and apathetic.” Even some of those who kept their jobs announced their dissatisfaction; one tweeted the lack of warning was “just incredibly vile.”

At NGP VAN — one of the two major organizations that run the Democratic Party’s vaunted organizing, voter file, and compliance tools — and EveryAction, the fundraising software company it operates under, some 40 people lost their jobs in the layoffs.

For some employees and strategists, the layoff announcement was confirmation of exactly what they had feared from the start: that the private equity firm, Apax, would try to maximize revenue by cutting costs, firing people, and effectively hollowing out the acquired companies with potentially drastic implications for the Democratic Party and liberal organizations that rely on NGP VAN and EveryAction.

“NGP VAN having a reduced staff will make it harder for us to do our jobs,” said one current NGP VAN employee, who spoke on the condition of anonymity for fear of professional reprisal.

“NGP VAN having a reduced staff will make it harder for us to do our jobs.”

The cost cutting could have unintended consequences for the Democratic Party, said progressive strategist Gabe Tobias.

“There are no nefarious purposes necessarily, like that they don’t want Democrats to win,” he said. “I don’t think they care. But what happens if they just start degrading service? No one can do anything about it. Everything sits inside of VAN, and almost everyone uses the other services they have.”

While NGP VAN was one of the companies merged into Bonterra during the private equity purchase, it remained a standalone brand and has the monopoly on campaign tools and compliance reporting software for the Democratic Party, including its database of coveted Democratic National Committee voter file information. Loyal Democrats in the NGP VAN orbit fear the job cuts — across NGP VAN and EveryAction’s product, data services, client support, and sales departments — could hamper the entire party’s efforts.

While cuts across multiple departments are typical in layoffs, the current employee said, NGP VAN is in a unique position. “We also happen to be a near-monopoly for the Democratic Party software and provide products/services to many labor unions and nonprofits,” they said. “It shouldn’t be owned by a British private equity firm and led by a nonpolitical ‘social good’ tech company.”

NGP VAN EveryAction Workers Union, under the Communications Workers of America, represented some of those laid off. In a tweet last week, the union wrote, “We fear the direction of our union-built platform—the largest database for Democrats, large unions, and many progressive nonprofits—under private equity. So should you.”

In early December, NGP VAN’s general manager, Chelsea Peterson, wrote a blog post offering assurances that, despite recent changes to the company, NGP VAN was “in it for the long haul” and that the company remains committed to serving in the progressive political tech space.

“The fact that Chelsea had to write a blog post saying NGP is ‘safe’ shows it’s not,” said one former NGP VAN employee who left prior to the layoffs and requested anonymity to protect their livelihood. “The question no one is asking in the Democratic community is: Is private equity the best place for this data? Are they vulnerable to these types of cuts with no rhyme or reason? How does this affect the infrastructure?”

The former staffer raised the organizations that worked with NGP VAN: the Democratic National Committee; the Democratic Congressional Campaign Committee, its fundraising arm for the House; and other political action groups and advocates that spend on campaigns all rely on NGP VAN’s technology — “all of these groups have invested millions into this organization,” the staffer said.

For Democrats, that infrastructure is of paramount importance. Where once several smaller shops ran the party’s fundraising and campaign technology, many of the most prominent firms — ActionKit, Mobilize, Salsa Labs, and Blue State — were acquired by NGP VAN and EveryAction. (In 2019, EveryAction acquired ActionKit, a service that The Intercept uses for its email newsletters and fundraising.)

Now Apax, a private equity group with a broad portfolio of companies and both Democratic and Republican donors among its partners, has bought the whole operation and merged it with other acquisitions as Bonterra. (The DNC, DCCC, and the Democratic Senatorial Campaign Committee, which also uses EveryAction and NGP VAN, did not respond to requests for comment.)

Apax is a buyout firm, the former staffer said, “which is not inherently bad — but let’s be honest — they didn’t buy NGP/EveryAction/Salsa etc. out of pure altruism.”

“People often ask me — what’s the famous CEO question — like what keeps you up at night? I want you to know nothing keeps me up at night. I sleep like a baby.”

Another current NGP VAN employee, who also spoke on the condition of anonymity for fear of reprisal, said that Bonterra had internally discussed failing to reach its target growth numbers at the end of the last quarter. When staff asked about potential layoffs during a question-and-answer session, they said, management “gave a deflection non-answer.”

According to a transcript of a December meeting obtained by The Intercept, Layden, the newly appointed CEO, was asked about his priorities in his new role. “People often ask me — what’s the famous CEO question — like what keeps you up at night? I want you to know nothing keeps me up at night. I sleep like a baby. It’s just [as] if I have no conscience.” (Bonterra declined to comment.)

In early December, Bonterra announced that then-CEO Erin Mulligan Nelson would be leaving the company and that Layden had been appointed interim CEO. “Erin was widely liked and admired, and her departure was announced unceremoniously,” the employee said, speculating that the former CEO was “unwilling to play ball with private equity.”

As other left-leaning and progressive organizations go through similar shifts, Democrats are concerned about the health of the party’s infrastructure ahead of 2024 elections.

Democratic and progressive organizations that use EveryAction and NGP VAN should collectively demand investment in its services, said Tobias, the progressive strategist. “Either this company who now owns this thing promises us, signs agreements with us that they won’t cut costs, that they won’t degrade services, or we invest in alternatives,” he said. “It’s probably both, but it’s certainly not neither — which is what’s happening right now.”

The post Inside the Slow Implosion of the Democratic Party’s Vaunted Campaign Tech Firm appeared first on The Intercept.

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