The Intercept

ICE Disobeyed Biden’s Order to Drop Trump’s Blanket Deportation Policy

Akela Lacy — Thu, 13 Jul 2023 20:20:21 +0000

U.S. Immigration and Customs Enforcement flouted guidance from the Biden administration to narrow its immigration arrests and prioritize deportation for migrants that pose threats to border security, public safety, and national security.

Shortly after President Joe Biden took office, his administration ordered ICE to prioritize action against people who posed security risks. A new report from the American Immigration Council, a nonprofit advocacy group, found that about a third of ICE arrests between February and November 2021, in Biden’s first year in office, involved people who were not considered risks to security or public safety. Half of ICE requests for local authorities to hold a migrant — called “detainers” — during the same period were carried out against people who were not considered security risks.

“At the end of the day, ICE was not following its own rules.”

“ICE was going outside of these priorities,” said Raul Pinto, a senior staff attorney at the American Immigration Council who drafted the report, of Biden’s orders. “At the end of the day, ICE was not following its own rules.”

The Biden administration issued guidance on new ICE enforcement priorities in January and February 2021. Former President Donald Trump’s policies made it an official priority to target anyone who was in the U.S. without authorization.

The new Biden guidelines called on the agency to prioritize groups of people considered by the Department of Homeland Security — ICE’s parent agency — to be threats to national security, border security, and public safety, and to use discretion in cases that fell outside of those categories.

A February 2021 memo required officers to obtain written permission for arrests, detainers, and removals of people who were not considered security risks. The memo also required ICE to collect data on enforcement actions and submit weekly reports of all enforcements and removals.

In the nine months after that guidance was issued, ICE directed at least a third of its enforcement actions against people who were not considered threats to security. ICE officers approved enforcement action in nonpriority cases 89.5 percent of the time. In 11 percent of the cases reviewed, enforcement action was taken before an ICE officer requested approval.

The report says, “This data suggests that ICE’s pre-approval process did not serve as a significant check on the agency, but largely as a rubber stamp for approval of officers’ actions.”

The American Immigration council report was published four days after the Supreme Court ruled against states that had fought the narrowed enforcement guidelines in court. Texas and Louisiana had both challenged the change. On June 23, the high court ruled 8-1 in the Biden administration’s favor, allowing the guidelines to stand.

The ruling was a win for the White House, which has struggled to enforce some of its efforts to reverse Trump’s anti-immigrant policies with Republican officials seeking to block changes in court.

The Supreme Court decision also puts pressure on Biden’s administration to more aggressively pursue the humanitarian immigration proposals he ran on in 2020.

“It’s up to DHS leadership and ICE leadership to ensure that their field level staff, law enforcement officers, are actually doing what the higher-ups are asking of them.”

Immigration advocates applauded the decision, and Homeland Security Secretary Alejandro Mayorkas said the agency would resume adoption of the narrowed enforcement guidelines.

It’s not clear that’s happened yet, said César Cuauhtémoc García Hernández, a law professor at Ohio State University. The court’s decision puts the power back in the Biden administration’s hands, he said: “It’s up to DHS leadership and ICE leadership to ensure that their field level staff, law enforcement officers, are actually doing what the higher-ups are asking of them.”

The data in the American Immigration Council report covers the first months of Biden’s administration. It takes time to implement policy change in a sprawling agency like the Department of Homeland Security, García Hernández said. But ICE also has a history of slow-walking immigration policy shifts under Democratic administrations — a dynamic that goes back to the Obama administration. “That background makes it reasonable to be skeptical of how willing ICE officers are to shift away from the Trump administration’s heavy-handed enforcement tactics and toward the Biden administration’s more humanitarian-focused approach,” he said.

The White House directed questions to the Department of Homeland Security, which did not reply to a request for comment.

Finalized guidelines issued by Mayorkas in September, which went into effect in November 2021, removed some data collection and reporting requirements from the administration’s original policy memo.

Reporting on detention requirements is mandated by Congress, but agencies have tremendous leeway over what information it reports and how it’s reported, García Hernández said: “This is one of the difficulties of tracking what ICE does.”

Immigration advocates said the court’s decision cleared the way for the Biden administration to walk back Trump’s indiscriminate removal policies. Without standardized reporting on enforcement actions, it will be difficult to ensure that happens, said Pinto, of the American Immigration Council. The organization is trying to push the administration to improve data collection on enforcement actions.

“Had it not been for the data collection requirements in the February 18 memo, we would not know that almost 35 percent of law enforcement actions were for activities that were outside the priorities,” Pinto said. “Data keeping is extremely important for oversight of ICE.”

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Trump Revives “Muslim Ban” While GOP Courts Muslim Voters for 2024

Murtaza Hussain — Tue, 11 Jul 2023 21:14:33 +0000

The culture war raging throughout American politics has, of late, created an unexpected alliance between the Republican Party and some conservative Muslim Americans. Once derided as terrorist fifth columnists, a growing number of Muslims have joined the GOP base in protests opposing sex and gender education programs in public schools, with many even featured sympathetically on outlets like Fox News.

The shift represents a stark contrast with the hostile relations between Republicans and Muslims over the past two decades, as well as the integration of many younger Muslim Americans into progressive politics. The GOP’s outreach, reported on recently by Semafor and other outlets, also comes at a moment when the current Republican presidential frontrunner is tripling down on the most directly anti-Muslim government policy in U.S. history: the so-called Muslim ban.

At a campaign speech in Iowa last Friday, former President Donald Trump promised that he would bring back the controversial policy. “When I return to office, the travel ban is coming back even bigger than before and much stronger than before,” Trump said.

The notion of a ban was first introduced by Trump early in his 2016 presidential campaign, when it was marketed explicitly as a prohibition on all Muslims entering the United States. After Trump was elected, he instated a ban targeting travelers from seven Muslim-majority countries, prompting chaos in airports and inside the government. Later, the Trump administration began referring to the policy more antiseptically as a “travel ban,” modifying it to include restrictions on some non-Muslim countries like Venezuela and North Korea.

Yet in his speech in Iowa last weekend, Trump made very clear that the target of his policy would be Muslims, conflating Islam with terrorism and extremism. “Under the Trump administration, we imposed extreme vetting and put on a powerful travel ban to keep radical Islamic terrorists and jihadists out of our country,” Trump told the audience to applause.

Trump’s statements highlight an awkward contradiction. On one hand, some Muslim Americans, bound by a shared commitment to conservative social values, are enjoying a period of warm relations with the Republican Party and conservative activists who share their opposition to LGBTQ+ education in schools. At the same time, the wildly popular leading Republican presidential candidate — and the center of gravity in the party — is publicly vowing to revive a policy aimed at curtailing the presence of Muslims in the U.S. entirely.

“This will be a challenging moment for the Muslim community, but I do believe that the issue of LGBT education in schools will become a wedge issue,” said Ani Zonneveld, president of Muslims for Progressive Values, a progressive human rights organization. “On a state and local level, many conservative Muslim voters will likely vote for candidates who are anti-LGBT, which will mean mostly Republicans, while on a national level, the same people may choose to vote for a Democrat.”

In one sign of warming relations between Muslims and the Republican Party, major Islamic civil rights organizations have spoken out in support of the recent GOP-supported protests aimed at letting parents opt their children out of LGBTQ+ readings in schools. The Council on American-Islamic Relations has been among the most vocal, collecting hundreds of signatures to demand that parents be allowed to remove their children from gender- and sex-based courses.

CAIR has been a favorite target of the Republican Party and conservative activists over the past two decades, with the group being labeled as a front for terrorism and Islamic extremism. On this issue, however, they find themselves aligned, even applauded, by erstwhile foes.

In a statement to The Intercept, CAIR said its positions reflect an agnosticism toward the partisan divide in American politics.

“CAIR defends the rights of Americans to live according to their sincerely held religious beliefs,” said Corey Saylor, CAIR’s research and advocacy director. “We decide our policy position based on principle, not party.”

Protesters react to Donald Trump’s Muslim immigration ban at John F. Kennedy International Airport on Jan. 28, 2017, in New York.

Photo: Stephanie Keith/Getty Images

The initial ban resulted in chaos at American airports, as people from targeted countries whose documents were otherwise valid found themselves abruptly detained by U.S. border security. In some cases, people with permission to enter the U.S. wound up stranded abroad without recourse, with some even dying or taking their own lives after being trapped in immigration limbo by the measure.

The cruelties and absurdities brought by the ban also impacted many people living in the U.S. who found themselves separated from loved ones. In one infamous case, the Yemeni mother of a 2-year-old Yemeni American boy dying of a terminal illness was forced to fight a legal battle to come and see him in the hospital after being denied entry to the U.S. because of the ban. She was later granted a waiver to the rule, arriving in the U.S. just days before her son died in the hospital.

The Supreme Court shot down two versions of the “Muslim ban” as unconstitutional, before finally upholding the measure in a 5-4 decision handed down in 2018.

After taking office, President Joe Biden signed an executive order lifting the ban entirely. The precedent, however, remains.

Trump has made reviving the measure a notable part of his reelection campaign, reportedly telling his advisers in May that he would bring back an expanded version of the infamous travel restriction — a policy that he called “beautiful.”

Trump’s renewed vow to ban Muslims from the U.S. comes at a time when some Muslim Americans have begun to gravitate back to the Republican Party. Prior to the 9/11 attacks, Muslim Americans tended to vote as a majority for Republicans, by some accounting providing the crucial swing vote that tilted Florida for George W. Bush in 2000.

Many Muslim Americans who found themselves transformed into punching bags for Republican politicians in later years came to rue their decision to support the GOP. Trump’s initial proposal of the “Muslim ban,” which was met with enthusiastic approval by his base, was only the capstone of a long, ugly falling out between Muslims and Republicans.

With tensions around terrorism and U.S. wars in the Middle East ebbing, some conservative Muslims seem to be turning back to the party.

It remains to be seen whether Trump’s promotion of a new and improved “Muslim ban” will sour the halting rapprochement between these two groups. Muslim Americans have transformed into solidly Democratic voters in recent decades, with several Muslim members of Congress taking up highly visible roles in the progressive wing of the Democratic Party.

Even during the period when Trump had imposed the ban, however, some exit polls in the 2020 election showed as many as 35 percent of Muslim voters supporting the candidate who had made the legal exclusion of their coreligionists from the country a highlight of his presidency.

Muslim voters who choose to buck Trump’s GOP might find little reprieve in his chief rivals for the Republican presidential nomination. In 2015, Florida Gov. Ron DeSantis, at the time a member of U.S. Congress, sponsored a bill that sought to ban refugees to the U.S. from a number of Muslim-majority countries where the U.S. had conducted military operations. In recent months, DeSantis has also pushed measures through state legislatures banning foreigners from owning certain properties or even enrolling in public universities to people from countries like Russia, China, and Iran. These bans provide a window into how lists of targeted nationalities could be used to deprive individuals of rights well beyond travel in the future.

Trump’s remarks in Iowa suggested that he might impose other restrictions for Muslim immigrations, making remarks aimed at radical terrorists in the same breath as those about farm ownership. “We don’t want people blowing up our shopping centers,” Trump said. “We don’t want people blowing up our cities, and we don’t want people stealing our farms. So it’s not gonna happen.”

As for LGBTQ+ issues in the Muslim community, Zonneveld of Muslims for Progressive Values said that her community needed to spend more time coming to grips with the specifics of the materials that are becoming an increasingly bitter culture war flashpoint.

“We should be taking those books and educational materials that people have issues with and sitting down on both sides to decipher what the problem is and how we can resolve this. In many cases, people are not even sure what’s in the books in question, and this approach of simply shouting at one another doesn’t help,” said Zonneveld, who recently wrote a piece for the website Religion News Service about the controversy. “One thing to emphasize, however, on principle, is that LGBT people are human beings created by God, just like you and I, and they should not be discriminated against, end of story.”

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California Grad Students Won a Historic Strike. UC San Diego Is Striking Back With Misconduct Allegations and Arrests.

Peter Lucas — Tue, 11 Jul 2023 10:00:00 +0000

On May 5, as Chancellor Pradeep Khosla began his opening remarks at the 44th University of California, San Diego Alumni Awards at the Museum of Contemporary Art San Diego, some 60 academic worker activists took the stage carrying a cardboard sign. They were there to present him with UC’s “Most Overpaid Worker” award; Khosla had received a $500,000 raise while, the union says, the university was simultaneously refusing to fully implement their recently ratified collective bargaining agreement.

Khosla quickly left the stage amid chants of “Pradeep, Pradeep, the rent is too steep!” When the police arrived, the graduate students had relocated outdoors to the sidewalk where, separated by a glass wall, they continued chanting their demands: “What do we want? Our promised wages. When do we want them? Now!”

While the action ended peacefully, just over a month later, the university charged 59 graduate student workers from the event’s registration list with “physical assault,” “physical abuse and threats to health and safety,” and “disruption of university activities.” Almost half of the people accused deny even being in attendance.

The university claims workers “bumped” Khosla and stole the microphone. The union disputes the allegations and points to a livestream of the action by a member, which, though blurry, does not show evidence of either charge. The students now face disciplinary hearings for the union action, which could result in probation or even expulsion from the university.

It was the latest provocation by the university in what workers say is an escalating retaliation campaign against them since ratifying a collective bargaining agreement late last year. The university has now brought multiple sets of misconduct charges against students and workers following three separate union-led protests.

Michael Duff, a law professor at St. Louis University, said the repeated charges speak to a pattern. “You can’t see this in isolation. There’s been a pattern of retaliation against the members involved,” he said, noting that “the nature of this case seems overly aggressive.”

Nearly 50,000 academic workers across the University of California system went on strike for six weeks last winter, the largest higher education strike in U.S. history. They won substantial wage increases, unprecedented new protections against workplace bullying, and immigrant worker protections.

But since ratifying their collective bargaining agreement last December, workers at UC San Diego say the university has not implemented aspects of their contract like establishing an office to process complaints of workplace misconduct or hiring workers at 50 percent of full-time employment, which is the standard appointment for graduate student researchers. Workers also say there have been dramatic reductions in teaching assistant appointments in certain departments and that two dozen students received unsatisfactory grades for participating in the strike.

“We signed a legally binding contract, and instead of implementing it, they’re trying to punish us.”

“We signed a legally binding contract, and instead of implementing it, they’re trying to punish us,” Udayan Tandon, who was recently elected as a unit chair of United Auto Workers Local 2865, told The Intercept.

Most recently, two UC San Diego graduate student workers and one post-doc were arrested by university police at their homes for writing pro-union slogans on the sidewalk during an action a month prior. Charged with conspiracy and vandalism, some union members believe the arrests are an extension of the pushback student workers have been facing on campus.

“Under the First Amendment, speech restrictions which are based on the content of the speech face strict scrutiny in the courts,” said Will Bloom, a labor lawyer who deals with First Amendment cases. It is “a standard that virtually no restrictions can survive,” he said. “It’s hard to imagine the university pursuing felony charges for kids chalking a hopscotch court on the sidewalk outside of the marine center.”

In a public statement on the arrests, university officials said, “UC San Diego supports its community members rights to voice their concerns lawfully. UC San Diego does not tolerate vandalism or other damage to university property.” While the union says it used “washable chalk,” the university claims the students used “materials other than chalk,” costing over $12,000 to repair.

The workers’ arraignment, scheduled for Monday, was delayed because the university has not submitted the cases for review with the district attorney’s office, which they have up to three years to do. As a result, no charges have been filed by the DA at this time. UAW locals 2865 and 5810 rallied outside the San Diego Court House prior to the scheduled hearing to demand the university drop the charges.

“Employers have certain rights to protect property, but the timing seems off to me,” said Duff. “I find it interesting they were immediately taken to jail” despite having left and gone home for a month prior to their arrests. “Normally there would be some legal process before [an arrest] would happen [at a separate location]. That strikes me as odd.”

After being held in custody for over 12 hours, Jessica Ng said she felt dehumanized. “You lose your autonomy,” said Ng, who is a postdoctoral scholar at Scripps Institution of Oceanography. “Chained to a chair, you have to ask for permission just to use the restroom or to drink water. I sat there for hours, deprived of sleep, not knowing what was going to happen.”

Ng said she doesn’t regret the union organizing she’s done and that “it’s on the university, which hasn’t been honoring our contracts. Instead of seeing our protests as a sign that they need to honor the contract, they’ve been trying to crack down on union activity.”

“It’s been a bit shocking to see just how far the university is willing to go,” fourth-year chemistry Ph.D. student Conor O’Herin told The Intercept. “We went on strike for six weeks, collectively bargained a fair contract, and now they’re refusing to abide by what they agreed to.”

According to workers, the university is pointing to financial strain to justify austerity measures, but Khosla’s half-million dollar raise — totaling nearly twice as much as the next highest paid UC president — says otherwise. The university, led by Khosla, also announced $1.1 billion plans for a new student center and campus housing.

“We are an essential component, and the university acts like it doesn’t have money to pay us while it expands its real estate empire.”

“We are an essential component,” said Daniel Primosch, a third-year Ph.D. student in physics, “and the university acts like it doesn’t have money to pay us while it expands its real estate empire.”

Soon after the contract ratification, workers began hearing about reductions in teaching assistant positions and incoming Ph.D.s from department heads. Last year, Adu Vengal said, the university admitted 44 doctoral candidates to the math department; this year, there were 10. And while historically, masters students would be given teaching assistant positions, the university changed that practice as well, only hiring doctoral students in the spring quarter. “A lot of masters students went on strike to get living wages,” explained Vengal, who is a third-year math Ph.D. student and recording secretary for United Auto Workers Local 2865. “Now they aren’t getting any wages.”

Instead, Vengal said, they began hiring more undergraduate tutors to do the work, which the union filed a grievance for. And then, “in May, the math department announced a restructure that would halve the number of [teaching assistants] per 100 students. After we grieved it, they said they would stop,” Vengal said, “but that’s exactly what this restructuring plan does.” The grievance has not yet been resolved.

These significant reductions in teaching assistant appointments come at the same time that the university has seen a major uptick in the undergraduate population, with an increase of 15,000 enrolled since Khosla took over.

Another major concern for graduate student workers is the university’s continued refusal to hire them at 50 percent of full-time. Their contract stipulates they be paid commensurate with their workloads of 20 hours per week, but in several departments at UC San Diego, workers are getting hired at arbitrary rates of 38 percent or 42 percent. Workers say this used to be common practice prior to the union, but now that it’s in the contract, it’s legally unacceptable.

“They try to justify it by claiming we work less than 20 hours a week,” said Ahmed Akhtar, a sixth-year Ph.D. student in physics. “In reality, we work more than full-time, and they won’t even pay us for half that. The result is the accumulated theft of millions of dollars.” Workers say this is most common in STEM departments.

Udayan Tandon, left, protests with academic worker activists on May 5, 2023, in San Diego, Calif. “We signed a legally binding contract, and instead of implementing it, they’re trying to punish us,” Tandon said.

Photos: Courtesy of UAW 2865

On the eve of the strike, hundreds of workers received emails from professors warning them they would still need to attend “academic training” activities, which workers say would constitute crossing the picket line.

Two dozen workers across three departments were given unsatisfactory, or “U,” grades for allegedly neglecting their schoolwork while participating in the strike, which could affect their current and future employment. The university has defended this practice against accusations of union busting by saying the “U” grade was assigned to them as students, not workers. Workers say the university’s manipulation of their dual-status is an effort to circumvent bargained rights and protections — and also pointed out that the class in which they received the “U” grade is a placeholder course to represent their research and that it does not have a syllabus, exams, or written classroom expectations.

On January 26, two overlapping groups of union activists, who say they were unable to successfully reach the professors who had given students “U” grades, “marched on the boss.” First, they approached chemistry professor Jeremy Klosterman, who workers said would not speak to them without conferring with university officials but did agree to a meeting in his office at a future date. Workers say when they arrived at his office for the meeting, a sticky note on the door said he was unavailable.

Then, graduate student workers went to speak with Primosch’s adviser, physics professor Massimiliano Di Ventra, who had recently been the subject of a letter from his former employees to the department asking that he be held accountable for an “abusive” and “punitive” advising style. Di Ventra described the comments in an email to The Intercept as “very hurtful” and “an attempt to maliciously harm my reputation.”

Akhtar said after Di Ventra refused to speak with them outside, students followed him and fellow physics professor Ivan Schuller into class, where they canceled the lecture and called the police. “We were entirely peaceful, but persistent in wanting to address the retaliation,” Akhtar said.

In an email to The Intercept, Di Ventra clarified it was his colleague who called the police because a “mob of around 30 students blocked me in my office for several minutes, yelling and pounding at my door, trying to open it.”

A few weeks later, the university sent misconduct charges to eight of the involved union activists, alleging disruption of university activities, physical abuse and threats to health and safety, and failure to comply and obstruction. The university eventually dropped the latter two, prosecuting the workers on the sole charge of disruption of university activities.

In the official UC San Diego student conduct review report that was produced as part of the trial, the responding police officer said he “did not interpret the crowd to be unruly, violent, or a threat to the campus community.” Despite Di Ventra telling the officer that he was “scared of what the students might do to him,” the report determined that there was no threat to physical health and safety.

On June 29, the accused workers, who Akhtar noted are all leaders in the union, were put on one-year probation, which bars them from participating in future “disruptive” protests under the threat of suspension or expulsion from their program.

O’Herin, who was one of the workers put on probation, said the disciplinary action can not only jeopardize the students’ enrollment, but also impact their decision to engage in union activity in the future. He added about the process, “It’s completely controlled by UC with no oversight from an outside body.”

The jury, which consists of students and staff members, is overseen by a chair chosen by the university. “There is a veneer of neutrality, but the facilitator was clearly biased against the union. He went on a rant about how [union activists] need to take responsibility for their actions, which were inherently disruptive union tactics. This is the university intimidating us through a process which they have total control over.”

With the nearly 60 new misconduct trials just beginning, and now three separate legal cases, the two sides seem far from any resolution thought to be settled with a contract. Workers say they will continue to apply pressure on the university until they see the agreement honored.

Tandon, the unit chair — who has not yet had the administrative resolution meeting for his role in the alumni action, which is the first step in the student misconduct trial process — acknowledges organizing is not without risk. He is on a worker visa from India, which puts him in a precarious position as his visa is tied to his employment and education. But he says he’ll continue to fight alongside his co-workers, “not only because peaceful protest is protected by worker rights, but more importantly because I know 48,000 union members are standing right behind me. I’m confident knowing that.”

Correction: July 11, 2023, 1:10 p.m. ET
The article originally said three graduate student workers were arrested recently. In fact, one was a post-doc. The story has been updated.

The post California Grad Students Won a Historic Strike. UC San Diego Is Striking Back With Misconduct Allegations and Arrests. appeared first on The Intercept.

Dozens of Witnesses Say Rodney Reed Is Innocent. Texas Court Says They’re All Wrong.

Jordan Smith — Fri, 07 Jul 2023 17:15:47 +0000

Rodrick Reed was preparing to fly to Washington, D.C., for a vigil commemorating the anniversary of the U.S. Supreme Court’s 1972 ruling that briefly abolished the death penalty when he got the news: The Texas Court of Criminal Appeals, or the CCA, had once again ruled against his brother Rodney Reed, who has been on death row since 1998 for a crime he swears he did not commit.

The news made Rodrick’s remarks at the vigil even more urgent. “My brother was convicted of the murder and rape of Stacey Stites, and since that time, we’ve been living a nightmare that we cannot wake up from,” he said. “The reason I say it’s a nightmare is because the truth is out there, but nobody is willing to look at it or to pay attention to it. Evidence is out there that proves my brother’s innocence, but nobody is admitting it into the court.”

“I say, let all the evidence be looked at and heard and give him a new trial,” he continued. “We don’t need to free Rodney Reed, the truth will free Rodney Reed.”

“We don’t need to free Rodney Reed, the truth will free Rodney Reed.”

Reed, who is Black, was sentenced to death for the 1996 rape and murder of 19-year-old Stites, who was white. Her body was found on the side of a country road just outside Bastrop, Texas. Sperm recovered from Stites’s body was eventually matched to Reed, which prosecutors called the “Cinderella’s slipper” linking Reed to her death. But Reed insisted he was innocent; he said he’d been having an affair with Stites, who was engaged to a white police officer named Jimmy Fennell. Fennell denied the possibility of an affair, claiming that he and Stites had a loving relationship and she didn’t know anyone named Rodney Reed. Fennell was questioned several times but was never seriously considered as a suspect.

In the decades since Reed’s conviction, a host of evidence has emerged showing that Reed and Stites did know each other and Fennell was aware of their dalliance, dismantling the state’s theory of the crime. Evidence of Fennell’s propensity for violence has also surfaced; in 2008, he was sentenced to 10 years in prison for kidnapping and sexually assaulting a woman while on duty and in uniform. He threatened to kill her if she told anyone about it. Meanwhile, the courts — most notably the CCA — have shrugged their shoulders and rebuffed Reed’s efforts to win a new trial.

In a pair of rulings issued on June 28, the CCA again denied Reed’s pleas, which the court has now done at least a dozen times since 2000. Each time, the court has flatly rejected the mounting evidence of Reed’s innocence, often in ways that mischaracterize the evidence or interpret the law to make the revelations meaningless. In the most recent rulings, the court trivializes nearly every detail that casts doubt on Reed’s guilt.

I have covered Reed’s case for more than 20 years and have repeatedly fielded questions from people bewildered by the CCA’s position. Dozens of witnesses have come forward with information that supports Reed’s account and points to Fennell as the more likely killer, including friends of Stites’s and Fennell’s law enforcement colleagues. How can the court discount every single one of these witnesses? There are no good answers. The conclusion I’ve come to is one that is beyond the law and something that veterans of Texas’s criminal legal system have grumbled about for years: There are just some defendants the CCA judges don’t like and will steadfastly rule against, regardless of the evidence that might support their bid for a new trial or release. Rodney Reed is one of them.

A Secret Affair

When Reed was first questioned by police in connection with the murder, he denied knowing Stites aside from what he’d seen in the news. It was only after his DNA came back as a match that he relented and said the two had been having a clandestine affair. Although the CCA has pointed to Reed’s initial denial as undercutting his claim of an affair, which they deemed “manufactured and implausible,” it isn’t hard to see why Reed might have withheld this information: Even in mid-1990s Texas, a Black man dating a young white woman engaged to a white cop would have been a risky endeavor.

With the DNA match to Reed, the state devised a theory of the crime. Stites left the apartment she shared with Fennell around 3 a.m. to make the 30-mile commute to the grocery store in Bastrop where she worked the early shift stocking produce, only to be waylaid by Reed. Traveling on foot, Reed somehow stopped Stites’s vehicle, overpowered her, then raped and strangled her with her own belt — all presumably inside the truck — before dumping Stites’s body on the roadside and leaving the truck in the Bastrop High School parking lot.

Prosecutors didn’t offer any conclusive evidence demonstrating how all of this might have taken place. And the timeline itself was predicated on information that Fennell provided to investigators. He wasn’t awake when Stites left that morning, he told them, but he filled them in on what he said was her normal routine. Inexplicably, the cops failed to search the apartment the couple shared, even though it was the last place Stites was known to be alive. Days after the murder, the state released the truck to Fennell, who immediately got rid of it.

Although Reed’s trial attorneys promised to deliver evidence of his alleged affair with Stites, they fell far short, calling to the stand only a few witnesses, each with some connection to the Reed family. The defense was hamstrung by the fact that they had done little work to prepare for the capital trial. Records reflect that they only began working on the case in earnest a month before jury selection — hardly enough time to conduct their own investigation into who might have known what. They repeatedly asked the judge to postpone the trial but were denied.

In contrast, prosecutors told the jury that they had interviewed anyone with a plausible connection to the case — including all of Stites’s co-workers at the grocery store — and found no one who could back up Reed’s story. Investigators talked to “every boyfriend, every co-worker, every friend, every family member, everybody,” prosecutor Lisa Tanner told the jury. “Nobody connects them. Nobody. Folks, this secret affair was so secret that Stacey Stites didn’t know about it. That’s how secret it was — because it didn’t exist.”

Rodney Reed waves to his family in Bastrop County District Court on Oct. 13, 2017, in Bastrop, Texas.

Photo: Ricardo B. Brazziell/Austin American-Statesman via AP

Straining Credulity

It wasn’t long after Reed was convicted that other witnesses started coming forward. Not only did they confirm a preexisting relationship between Reed and Stites, but they also shared stories about Fennell’s jealousy, racism, and volatility — indications that he knew about the relationship and was furious about it. Every time, however, the CCA rejected the evidence.

There was a woman named Mary Blackwell, for example, who said she’d been in a law enforcement training class with Fennell. In an affidavit she provided to Reed’s lawyers in 2004, she said she heard Fennell tell a fellow trainee that if he ever caught his fiancée cheating on him, he’d strangle her with a belt. Texas prosecutors pointed out that no one else had admitted to hearing the comment, leading the CCA to discredit Blackwell’s story.

More recently, the CCA’s reflexive dismissal of witnesses whose claims call the state’s case into question has bordered on the absurd. In 2021, a judge in Bastrop presided over a nine-day evidentiary hearing that featured dozens of witnesses, including friends of Stites’s from work, members of law enforcement who knew Fennell, and former inmates imprisoned with Fennell. The witnesses testified that Stites and Reed had been involved in a relationship, that Fennell knew about it, and even that Fennell had confessed to Stites’s murder. None of these witnesses had any connection to Reed or his family.

Among the witnesses was a co-worker of Stites’s named Suzan Hugen, who testified that she and Stites were friends. She said she was aware that the relationship between Fennell and Stites was off; among other things, she’d seen finger-shaped bruises on Stites’s arms, which the younger woman tried to hide. Hugen also said that Stites had introduced her to her friend “Rodney.”

Hugen provided this information to the state well before Reed’s 1998 trial, yet it was never turned over to Reed’s attorneys. In fact, it wasn’t until just before the evidentiary hearing commenced in 2021 that the state finally made Hugen’s information available, along with statements from three other individuals that suggested other grocery store employees might also have known about a relationship between Stites and Reed. The decades-late disclosures prompted Reed’s lawyers to file an appeal claiming that the state had violated its obligation to turn over exculpatory information to the defense as required by the U.S. Supreme Court ruling known as Brady v. Maryland.

Despite overwhelming testimony in favor of Reed, the judge presiding over the evidentiary hearing fully embraced the state’s position that none of Reed’s witnesses were credible. Judge J.D. Langley signed off on findings written by the state, concluding that only the state’s witnesses, including Fennell, were reliable.

Reed’s attorneys challenged the ruling before the CCA, arguing that Langley had abdicated his responsibility to make independent determinations about witness credibility by simply adopting the state’s proposed conclusions, which were rife with errors and factual misrepresentations about various testimony, including Hugen’s.

In one of the rulings released on June 28, nearly two years after the evidentiary hearing concluded, the CCA lamented the errors — it listed several in a footnote with the caveat that the list was “by no means exhaustive” — before undertaking its own assessment of the witnesses’ credibility. Ultimately, the CCA concluded, as Langley had, that none of Reed’s witnesses were credible, save for one man whose father lived in the apartment just below Stites and Fennell, who reported hearing violent arguing on multiple occasions.

The man, Brent Sappington, said that he and his father, Bill, who has since died, approached a prosecutor the family knew at church to report what they’d heard. According to Sappington, the prosecutor, a man named Ted Weems, told them to hush up because investigators already had their suspect. Weems testified that Bill had reported the fighting upstairs, but he denied discouraging the family from coming forward. The CCA credited Sappington only to the extent that Weems “corroborated” his account; where the stories diverged, the CCA concluded that Weems was the one telling the truth. Sappington explained that he was initially hesitant to come forward because Fennell was in law enforcement and he feared his story would be dismissed, an explanation the court found to be an excuse that “strains credulity.”

Several other witnesses provided similar reasoning, saying they didn’t come forward sooner because they feared retaliation from a law enforcement community that they expected would protect its own. The court repeatedly found this explanation unconvincing. Other witnesses, who said they didn’t realize that what they knew was important, were dismissed as likely fabricating their recollections. While it’s true that memory can be tricky, the CCA failed to engage with any nuance and instead deployed a false-memory blanket across multiple witness statements as a one-stop discrediting device.

“For 23 years, Texas illegally hid evidence that could have exonerated Rodney Reed.”

Where Hugen was concerned, the court stated that the account she offered was “unremarkable, even mundane.” The judges also took aim at her recollection about seeing bruises on Stites’s arms, concluding that jurors would not have believed that since no bruises were found on Stites’s arms during the autopsy.

As for the state’s alleged Brady violation, the CCA concluded that the information Hugen had was “immaterial” since one witness had previously testified at Reed’s trial that she’d seen Reed and Stites together at the grocery store. Hugen’s account wouldn’t have added anything, the judges wrote, despite the fact that Hugen had no connection to the Reed family, and had her information been disclosed in a timely way, it would have offered Reed’s defense another avenue of investigation.

The court took the position that other witness statements were immaterial because the state had deemed them dead leads. In other words, if Texas prosecutors decided that the statements were meaningless, then they had no obligation to turn them over — a bastardization of Brady’s disclosure requirement that would afford prosecutors total discretion over what evidence is released to the defense. Although prosecutors cited their Brady obligation in releasing the witness information to Reed’s attorneys in 2021, the CCA’s opinion seemed to endorse the notion that it would have been perfectly fine for them to leave the information forever buried in the state’s files.

“The Whole World Will Know”

That the CCA would rule against Reed is neither new nor surprising — nor is the judges playing mental gymnastics with legal standards to get them to their desired result.

For decades, the court has been a myopic, hegemonic institution, composed largely of middle-aged, white, male jurists who were former prosecutors — a mix of factors that has created an insulated worldview within the court’s chambers in Austin. When the current presiding judge, Sharon Keller, first ran for a seat on the court back in 1994, she described herself as “pro-prosecutor,” meaning, she told a reporter, “seeing legal issues from the perspective of the state instead of the perspective of the defense.” That view has dominated the CCA bench for the last 30 years and reflects its approach to the Reed case.

The judge who wrote the June 28 opinions was its newest member, Jesse McClure, a former prosecutor-turned-Houston district court judge who was appointed to the bench in December 2020 by Texas Gov. Greg Abbott. Notably, he is only the third Black CCA judge since the court’s establishment in 1891. One judge, Scott Walker, dissented from the rulings but did not explain why.

Reed’s lawyers are frustrated. “For 23 years, Texas illegally hid evidence that could have exonerated Rodney Reed. He is an innocent man,” Jane Pucher, a senior staff attorney with the Innocence Project, said in a statement. “Texans should be outraged that prosecutorial misconduct is going unchecked, and the state is being given a license to cheat — even if it means sending an innocent man to his death.”

Pucher said Reed’s legal team is considering all its options, including asking the U.S. Supreme Court to review the case. Meanwhile, a separate legal effort to obtain DNA testing on key crime scene evidence, including lengths of the braided belt used to strangle Stites, is ongoing. Texas has long fought Reed’s bid to have the evidence tested; predictably, the CCA sided with the state, offering a novel interpretation of Texas’s DNA testing law to block Reed’s access. The dispute made it to the Supreme Court on a technical point, and this spring, the court ruled in Reed’s favor, sending the case back to the 5th U.S. Circuit Court of Appeals.

Rodrick is frustrated by the CCA’s continued hostility toward his brother, but he has vowed to keep fighting. At the vigil in Washington, D.C., he recalled something that his mother, Sandra, told the court back in 1998 when Reed was convicted. “She said, ‘You may try to take my son’s life, but I guarantee you the whole world will know about it.’”

The post Dozens of Witnesses Say Rodney Reed Is Innocent. Texas Court Says They’re All Wrong. appeared first on The Intercept.

DeSantis Stacked Florida’s Supreme Court With Cronies Who Wage His War on Wokeness — or Else

Akela Lacy — Mon, 03 Jul 2023 09:00:00 +0000

Shortly after Florida Gov. Ron DeSantis took office in 2019, the state Supreme Court threatened to dissolve the Florida Bar Association if it didn’t get rid of its diversity programs.

The court had taken a sharp right turn after DeSantis selected three new justices with the help of Federalist Society board co-chair Leonard Leo. Leo led a secret panel of advisers that vetted DeSantis’s judicial nominees before he took office.

The revelation came on the heels of a slew of news stories on conservative donors buying influence on the U.S. Supreme Court — where Leo, again, was among the conservative legal activists who helped to install a conservative majority. The top federal court has since made landmark rulings against abortion rights and in favor of business interests. And Leo isn’t done yet: He funnels money to a network of right-wing organizations orchestrating key Supreme Court cases on red-meat conservative issues.

In Florida, Leo was working to overturn a 40-year status quo of judiciary balance and restraint. The state Supreme Court had fostered an image of independence after corruption scandals that forced two justices to resign in the early 1970s. When DeSantis took office, concerns about improprieties disappeared. The governor has a long history with the Federalist Society — he was a member at Harvard Law School — and his judicial nominees are backed by the group.

The ideological project DeSantis is pushing Florida is no secret. He unabashedly appoints political allies to posts across the state. Such picks have shown up in the judiciary, nonpartisan election offices, and state boards that oversee public schools and colleges, medical practices, business, and real estate.

DeSantis’s appointments, budget decisions, and fundraising tactics have come under heightened scrutiny since he announced a presidential run last month. None of the appointments, however, eclipse the lasting change of his state Supreme Court takeover. DeSantis has named five of the court’s seven members, all of whom are members of the Federalist Society.

“I don’t think he’s appointing chumps, but he’s clearly put a more ideological litmus test on his justices than others have,” said Neil Skene, who published an official history of the court. Vetting justices by patronage was common starting under President George Bush in the early 2000s, Skene said, but DeSantis is at the vanguard of making purely ideological appointments.

Leonard Leo speaks at the National Catholic Prayer Breakfast in Washington, D.C. on April 23, 2019.

Photo: Michael Robinson Chavez/The Washington Post via Getty Images

He is not the first to award contracts to donors or administrative posts to political operatives, but DeSantis does it at an unprecedented scale. The thoroughness of his cronyism has had a chilling effect in Florida: There is a perception among politicians and residents alike that nothing can get done if you’re seen a DeSantis foe, said Barbara Petersen, executive director of the Florida Center for Government Accountability.

“I’ve never seen anything like this,” Petersen said. Public servants are dismayed at what’s happening to their state, she said: “People are afraid of him.”

No Diversity Policies

After the scandals in the 1970s, successive Florida governors sought to improve the diversity of viewpoints on the state Supreme Court.

“The idea behind all of that, of course, is to make sure that all of Florida is represented on its highest court,” said Craig Waters, who worked at the court for 35 years and was its communications director until he retired last year. “It makes sure that a state Supreme Court does not become an echo chamber, but a true debate society. If you have members of a state Supreme Court that are careful of each other and watching each other, it prevents anything happening that might lend itself to a lack of public trust and confidence. It’s very important that the justices police each other.”

That stopped under DeSantis.

“What I see today is a court that lacks diversity and that lacks that internal policing mechanism that has served it so well in the past.”

“What I see today,” Waters said, “is a court that lacks diversity and that lacks that internal policing mechanism that has served it so well in the past.”

Shortly after DeSantis made his first appointments, the court started chipping away at its diversity programs.

In 1949, the state Supreme Court founded the Florida Bar, an association that regulates attorneys. In the 1990s and early 2000s, the bar sought to diversify the judiciary along ideological, ethnic, and gender lines and to address judicial discrimination. The association convened a diversity symposium in 2004 and issued a report with recommendations to help improve diversity and strengthen its independence. In 2010, the Florida Bar created a committee to address diversity and inclusion.

When DeSantis’s allies arrived on the court, threats began coming down: The bar would be dissolved if it didn’t get rid of its diversity initiatives. Soon enough, the attacks proved effective. In 2021, the state Supreme Court ordered that the bar association amend its continuing legal education, or CLE, policy and eliminate a requirement for diversity among speakers and panelists in its continuing educational programs. The fight even made its way to the American Bar Association, which changed its own policies in April 2022 to bring the group into compliance with the rules imposed on the Florida Bar.

Florida Bar spokesperson Jennifer Krell Davis told The Intercept that the association had not changed its diversity programs, but that it adhered with the court’s order to eliminate diversity requirements in CLE programs. She declined to comment on a question about the court’s alleged threat to dissolve the association. “Our Leadership Academy, Path to Unity and Diversity grant programs (and others) continue to thrive under our Diversity and Inclusion committee,” Krell Davis said.

In February, the state Supreme Court went so far to dissolve the court system’s Standing Committee on Fairness and Diversity and eliminate its fairness and diversity training for judges.

The court’s public information Director Paul Flemming said the court’s opinion was self-explanatory. “The opinions of the Florida Supreme Court speak for themselves,” Flemming said. “I would refer you to what is written there: ‘Quotas based on characteristics like the ones in this policy are antithetical to basic American principles of nondiscrimination.’”

DeSantis Court Picks

How the state Supreme Court arrived here is the story of DeSantis’s picks. The court’s current chief justice, Carlos Muñiz, took an unusual path to the bench. He had previously been a Republican political operative and worked in the Trump administration as general counsel to former Education Secretary Betsy DeVos. Muñiz was deputy attorney general and chief of staff to former Attorney General Pam Bondi, deputy chief of staff and general counsel to the former Speaker of the Florida House of Representatives, and deputy general counsel to former Gov. Jeb Bush.

When DeSantis took office, Alan Lawson, a conservative and the most senior judge on the bench, was in line to be the next chief justice of the court. Court staff had been preparing for his ascension and budgeting for his administration when Lawson abruptly announced in April 2022 that he would retire. Lawson went to work as a partner at a new law firm in Tallahassee run by Republican political operatives who had broken off from one of the state’s top GOP law firms, Shutts & Bowen. Lawson told the Washington Post his decision to leave court was purely personal.

That July, less than four years after he was appointed to the state Supreme Court, Muñiz became its chief. Lawson was the first justice to be passed over for chief despite his seniority since 1976, said Skene, the expert on Florida courts. “He was not of the solidly Federalist Society group and Muñiz was,” he said. “Muñiz had a much more political job before that.”

Another DeSantis pick, Renatha Francis, worked at Shutts & Bowen before she was appointed to the court in 2020. Her original nomination was nullified because she hadn’t been a member of the bar for 10 years, as required by the state constitution. She was nominated again in 2022.

The web of allies and appointments DeSantis has woven across the state overlaps with and influences the court. In May, after another justice abruptly stepped down to take a job at a DeSantis-linked insurance company, the governor appointed Meredith Sasso to the state Supreme Court. Several months before, DeSantis had appointed her husband, Mike Sasso, to the board of the former Reedy Creek Improvement District, where the governor has been embroiled in a battle with Disney. DeSantis appointed Sasso and four other Republicans to the board in February, including a major GOP donor and a co-founder of the far-right group Moms for Liberty who is married to the chair of Florida’s GOP.

Four days after Meredith Sasso joined the bench, her husband resigned from the improvement district board. Had Sasso remained on, it would have raised questions about his wife’s ability to participate in court decisions related to Disney without presenting a conflict of interest.

Similar questions may soon face Charles Canady, another justice who was appointed by former Democratic Gov. Charlie Crist. Canady’s wife Jennifer was elected last year to the Florida state House and quickly co-sponsored a bill that would ban abortion beyond six weeks. DeSantis signed the six-week ban into law in April, but its implementation is pending an ongoing court challenge to the state’s current 15-week ban. Jennifer Canady has been floated as the state’s next speaker of the House with DeSantis’s blessing.

“That poses a really difficult kind of situation for Canady because basically every law that gets passed and might be up for court review will come through the House of Representatives,” Skene said. “It certainly creates this interesting proposition where husband and wife might be at the head of two different branches of government.”

Cronies Everywhere

What makes DeSantis different from his predecessors is that his actions are overtly political, said Ben Wilcox, research director and co-founder of Integrity Florida, a government watchdog. DeSantis has reshaped Florida politics far beyond the judiciary, from the boards of public schools to boards of medicine.

“Because DeSantis has such an aggressive agenda, that’s why you’re seeing all these appointments to school boards, universities,” Wilcox said. “He’s really trying to push his agenda in pretty much every chance he has.”

The governor, for instance, overhauled the board of trustees at the New College of Florida and installed conservative activists. One pick to the board was the architect of the war on critical race theory. The new board quickly fired the college president and replaced her with the former Republican speaker of the Florida House. He, in turn, tapped a GOP lawmaker — whom his office had previously suspended from a county position after he was charged with impersonating a law enforcement officer — to become the next president of South Florida State College.

“He’s really trying to push his agenda in pretty much every chance he has.”

The lawmaker, state Rep. Fred Hawkins, had no higher education experience, and the school lowered the education requirements for the position just three days before he submitted his application. Three finalist candidates withdrew their applications after the governor’s office contacted members of the board, the Herald Advocate reported. Hawkins got the job.

Hawkins would prove to be yet another loop in the tangle of DeSantis cronies. Before arriving at South Florida State, Hawkins sponsored a bill that gave DeSantis power to appoint the board for the Reedy Creek Improvement District, where Disney is based. The move came just under a year after DeSantis signed a bill to revoke Disney’s special tax status after the entertainment giant publicly opposed his “Don’t Say Gay” bill. Disney sued DeSantis in April, claiming the governor weaponized the state government to retaliate against it for making First Amendment-protected speech.

DeSantis also stacked the state’s two medical boards, including an appointment for a real estate broker whose wife DeSantis had installed in a real estate appraisal board. Both medical boards voted last year to ban gender-affirming health care for trans youth.

Lobbyists

DeSantis repeatedly leveraged his position to bully Florida political figures — from elected officials to lobbyists in the state — into supporting his ambitions and pet causes.

“What he is doing, and what is now being reported, is his shakedown of lobbyists,” said Petersen, of the Florida Center for Government Accountability.

DeSantis’s chief of staff organized government officials to solicit campaign contributions from lobbyists, NBC reported earlier this month.

“Shaking down legislators, you know: ‘Give me your endorsement, I haven’t signed the budget yet,’” Petersen said. “And damned if he did not retaliate against those people. You can see it in the vetoes. It’s stunning.”

“What he’s doing, he’s doing for the sole purpose of his political ambition — and to the detriment of Floridians. We’ve got real problems in Florida.”

The governor’s allies have also gone on to enrich themselves. In September 2020, shortly after former Florida Republican House Majority Leader Dane Eagle lost in the Republican congressional primary for a U.S. House seat, DeSantis gave him a new job. Eagle, a commercial real estate broker, was appointed as the executive director of the Florida Department of Economic Opportunity. In January, less than two and a half years into the job, Eagle announced that he would join the government affairs team at Ballard Partners, one of Florida’s biggest international lobbying firms, with extensive ties to Donald Trump.

“DeSantis continues to use his political position as Governor to feed the grift of his allies, by gifting them positions their unqualified for, allowing contracts to be diverted towards friendly vendors and pleasing donors with bills that he signs into law,” said Democratic state Rep. Anna Eskamani, who represents parts of Orlando, in a text message. “It’s unethical and feeds into people’s distrust of the Governor.”

With DeSantis’s budget for 2023 to 2024, critics saw a governor intent on funding his top causes at the expense of Floridians’ real concerns. DeSantis cut funding for projects to protect public lands and prevent flooding that were pushed by Democrats and Republican lawmakers who resisted his requests for endorsements in the presidential primary.

“It’s becoming more and more clear as all of this information is coming out that what he’s doing, he’s doing for the sole purpose of his political ambition — and to the detriment of Floridians,” said Petersen. “We’ve got real problems in Florida.”

The post DeSantis Stacked Florida’s Supreme Court With Cronies Who Wage His War on Wokeness — or Else appeared first on The Intercept.

Supreme Court: Affirmative Action Is OK — If the Students Are Getting Sent to Die in Wars

Murtaza Hussain — Thu, 29 Jun 2023 21:23:36 +0000

Affirmative action supporters and counterprotesters shout at each outside of the Supreme Court on June 29, 2023, in Washington, D.C.

Photo: Kent Nishimura / Los Angeles Times via Getty Images

In what is being described as a victory for a merit-based and colorblind approach to college admissions, the Supreme Court Thursday struck down affirmative action as a tool to redress race-based inequalities. The ruling by the court’s conservative majority dealt with affirmative action programs at Harvard University and the University of North Carolina, but would apply across the country.

The precedent set by the court’s decision is primed to transform college admissions standards around the country, yet there is one area where the law mandating diversity in recruitment is remaining conspicuously unchanged: U.S. military academies.

When it comes to national priorities, the defense establishment has long been treated with kid gloves and afforded its own perks and protections. Think of the way fiscal hawks on both sides of the aisle regularly greenlight bloated Pentagon budgets. The divergence on diversity guidelines for elite colleges and U.S. military institutions stands out for its gross irony, not least because the most pernicious forms of affirmative action — those which protect the ruling class — remain untouched.

“The Court has come to rest on the bottom-line conclusion that racial diversity in higher education is only worth potentially preserving insofar as it might be needed to prepare Black Americans and other underrepresented minorities for success in the bunker, not the boardroom,” Justice Ketanji Brown Jackson wrote in a dissenting opinion.

A quick look at the details of the ruling itself sheds some light on the problem. The U.S. government had previously filed an amicus brief in the lawsuit asking for an exception for military academies. That brief stated that U.S. military leaders “have learned through hard experience that the effectiveness of our military depends on a diverse officer corps that is ready to lead an increasingly diverse fighting force.” Although the court rejected the same logic being applied to elite colleges, it evidently accepted the need for diversity among future generations of West Point graduates, stating in a footnote to the majority opinion that:

The United States as amicus curiae contends that race-based admissions programs further compelling interests at our Nation’s military academies. No military academy is a party to these cases, however, and none of the courts below addressed the propriety of race-based admissions systems in that context. This opinion also does not address the issue, in light of the potentially distinct interests that military academies may present.

Affirmative Action for Whom?

A common criticism of affirmative action programs at universities is that they undermine merit as a primary criterion for selection. Yet the same concern seems equally, if not more, relevant to U.S. military leadership, particularly given the strong emphasis on national security normally espoused by U.S. politicians and the electorate.

The court is apparently hesitant to prioritize demographic diversity in admissions to colleges that, ultimately, determine the future appearance of the country’s elite. But the same concerns do not seem to apply to the military, where one of the possibilities of membership, rather than joining the gilded class, is being severely injured or killed in one of the U.S.’s many foreign military conflicts.

Despite the court’s ruling, which has been widely celebrated among opponents of affirmative action, it is not entirely clear how much that the composition of elite colleges will change. The decision says that universities may continue to consider in admissions “an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration or otherwise.”

The far more pervasive form of elite affirmative action — embodied by preferential treatment for legacy admissions — was left untouched by the court ruling.

This apparent loophole potentially allows applicants to continue to be accepted on the basis of racial background, provided they also give a personal statement about their race that could easily become de rigueur in the future.

The far more pervasive form of elite affirmative action — embodied by preferential treatment for legacy admissions, the children of financial donors, athletes, and relatives of school staff — was left untouched by the court ruling. The oversight is a significant one.

There was, however, one mention of it: In his concurring opinion, Justice Neil Gorsuch chastised elite schools like Harvard for their attempts to uphold affirmative action while continuing to defend legacy admissions. Harvard’s “preferences for the children of donors, alumni, and faculty are no help to applicants who cannot boast of their parents’ good fortune or trips to the alumni tent all their lives,” he wrote.

Nonetheless, a 2019 study found that a whopping 43 percent of white students at Harvard were beneficiaries of one of these forms of preferential access. While 70 percent of legacy admissions were white, only 16 percent of Black, Latino, and Asian students benefitted from these preferential considerations.

In effect, while rolling back affirmative action, the court left unscathed a backdoor means of demographic engineering in college admissions that is equally indifferent to merit as a criterion.

Sotomayor’s Dissent

The reversal of affirmative action at elite schools will likely have reverberations well beyond the institutions themselves, including downstream changes in the internal culture of workforces and non-governmental institutions that had been encouraged for years to make demographic diversity a priority in hiring.

Yet the apparent inconsistencies in the ruling, including carve-outs for the military and continued preferential treatment for the wealthy and well connected, will likely make the decision a bitter one for many who had supported affirmative action to address America’s history of racial inequity.

In her dissent to the ruling, Supreme Court Justice Sonia Sotomayor said that the military exemption in particular “highlights the arbitrariness” of the court’s decision. Sotomayor minced few words in expressing the depths of her objections to the ruling, which will likely be a landmark one in the history of America’s post-civil rights legal movement.

“When proponents of those arguments, greater now in number on the Court, return to fight old battles anew, it betrays an unrestrained disregard for precedent,” Sotomayor wrote in her dissent. “It fosters the people’s suspicions that ‘bedrock principles are founded … in the proclivities of individuals’ on this Court, not in the law, and it degrades ‘the integrity of our constitutional system of government.’”

The post Supreme Court: Affirmative Action Is OK — If the Students Are Getting Sent to Die in Wars appeared first on The Intercept.

After Overturning Roe v. Wade, SCOTUS Treats Itself to Sprawling Security Detail

Ken Klippenstein — Tue, 27 Jun 2023 21:29:22 +0000

When people took to protesting outside of the homes of Supreme Court justices following the leak of the draft decision to overturn Roe v. Wade, hundreds of federal agents were quietly watching, both in real life and online, for “concerning communications.” Now the Court has sought to enshrine the new praetorian guard indefinitely, according to documents reviewed by The Intercept.

The Supreme Court sought millions for security last year, enlisting the U.S. Marshals to provide personal details for the justices. A year later, that security force hasn’t seen a significant increase in threats or attacks, according to documents reviewed by The Intercept, but the Supreme Court is asking to continue — and in some cases, even augment — the high level of security.

Last summer, hundreds gathered outside the homes of the conservative justices to protest the Dobbs decision, which effectively eliminated reproductive rights for millions. Top Republicans quickly cast the demonstrations as illegal, arguing that they were tantamount to an attempt to influence a judge, which is a crime.

“It is beyond dispute that far-left activists have launched a concerted and coordinated effort to intimidate the Court into changing the draft Dobbs decision,” Sen. Chuck Grassley, R-Iowa, ranking member of the Judiciary Committee, said in a letter to Attorney General Merrick Garland in May of last year. “I urge you to publicly commit to protecting the justices, and to condemn and prosecute anyone seeking to threaten and intimidate the Court into changing its decision.

Though the Supreme Court has its own police force, following Grassley’s letter, the Justice Department dispatched the U.S. Marshals Service to augment their security details. Congress passed the Supreme Court Police Parity Act, which extends security to Supreme Court justices’ immediate family members.

Yet, apart from one bizarre incident last June, when an armed California man traveled to Washington claiming an intent to assassinate Justice Brett Kavanaugh before turning himself in to authorities, there have been no acts of violence attempted or committed against justices. No protesters were arrested. Aggregate data, in fact, shows that threats to the judiciary in general went down in 2022.

In November, Justice Amy Coney Barrett even made light of the protests at a Federalist Society dinner after receiving a standing ovation. “Thank you. It’s really nice to have a lot of noise made that’s not by protesters outside my house,” Barrett cracked.

The Supreme Court has continued to beef up security in response to perceived threats to justices from abortion activists anyway. In the past year, the Court expanded its security detail to include 400 U.S. Marshals through the new SCOTUS Special Security Officer Program, more than doubling the number of officers assigned to the security of the justices and their residences.

The Marshals’ annual report to Congress, released in April, sheds light on their response to the protests, which included “24-hour online threat screening coverage for the SCOTUS, all justices and their residences” as well as “real-time online research” into suspected threats at justices’ homes.

Although a year has passed since the Supreme Court overturned Roe on June 24, the Marshals this year requested an additional $21 million for 46 new positions, including 42 more Marshals, to bolster security to judges in the next fiscal year.

The Court specifically cited overturning Roe v. Wade as fueling an extra need. “As a result of the Dobbs decision,” the Marshals’ budget request explains, in reference to the case that overturned Roe, “SCOTUS contacted the [U.S. Marshals Service] to request assistance in securing their facility,” resulting in “additional security posts and Special Security officers to provide this enhanced level of on-site monitoring and presence of officers.”

During the Trump administration, the U.S. Marshals provided security details of questionable necessity. Former President Donald Trump’s education secretary, Betsy DeVos, faced criticism after her U.S. Marshals Service protective detail racked up over $24 million in costs, “the largest U.S. Cabinet-level protection detail in [U.S. Marshals Service] history.” Trump’s Environmental Protection Agency administrator, Scott Pruitt, ran up over $3.5 million, costs the EPA’s inspector general found were unjustified and were incurred without conducting a threat analysis to determine whether the protection was even necessary.

Earlier this year, the Supreme Court also separately requested a budget increase of $5.8 million over the previous year’s budget to augment its own police force, the Supreme Court Police. “This request would expand security activities conducted by Supreme Court Police to protect the Justices,” the budget document explains. “On-going threat assessments show evolving risks that require continuous protection.” The Supreme Court’s police force numbers about 125 officers, according to a 2018 report by Security Today.

But neither the Supreme Court police force nor the U.S. Marshals details the threats that are used to justify millions in extra security, and publicly available assessments point in the opposite direction.

The Marshals’ report cites 260 instances of “concerning communications” that were referred to the Supreme Court Police for further investigation. The previous year’s annual report did not identify any instances of “concerning communications” to the Supreme Court, instead focusing on “inappropriate communications” concerning DeVos, though no number is provided.

But threats against Supreme Court justices were not enough to dent the Marshals’ aggregate data on threats against its judiciary protectees, which actually reflect a decrease in the year of the Dobbs decision. (Annual data specific to threats against justices is not available.)

Total number of inappropriate communications/threats to the judiciary by year. Source: U.S. Marshals Service FY 2022 Annual Report

Screenshot: The Intercept

Though there was a raft of vandalism directed at churches and other anti-abortion facilities after the Dobbs ruling — in a recent case, the firebombing of a vacant anti-abortion clinic — experts say that violence has largely been directed at property.

“I am not aware of any serious bodily injury caused by pro-choice activists,” Michael German, a former FBI agent and fellow with the Brennan Center For Justice’s Liberty and National Security Program, told The Intercept.

Even in the case of the man who traveled from California with a plan to attack Kavanaugh, security did not intervene; he called the police and turned himself in. German said that he is not aware of anyone else being charged with making threats against a Supreme Court justice, a felony.

Not everyone in Congress intended their bill to be a blank check for the Court. Sen. Jeanne Shaheen, D-N.H., pressed Garland, the attorney general, about the Marshals’ protective detail in a March 28 Senate hearing, asking whether it would “continue indefinitely.”

“So you’re not anticipating this to go on long term then?” Shaheen asked.

“We’re hoping that it doesn’t go on long term,” Garland replied.

The post After Overturning Roe v. Wade, SCOTUS Treats Itself to Sprawling Security Detail appeared first on The Intercept.

Released Guantánamo Detainees Are Still Being Denied Human Rights, U.N. Report Warns

Elise Swain — Tue, 27 Jun 2023 17:05:16 +0000

The United Nations special rapporteur on counterterrorism and human rights, Fionnuala Ní Aoláin, published an exhaustive investigation this week into human rights abuses at Guantánamo Bay. Following a historic visit to the detention center and interviews with current and former detainees, victims of the 9/11 attacks, and human rights lawyers, the report details delayed justice for the victims of terrorist attacks and ongoing injustice for the victims of torture.

At the core of the report is the problem of inexplicable indefinite detention. “Arbitrariness pervades the entirety of the Guantánamo detention infrastructure — rendering detainees vulnerable to human rights abuse and contributing to conditions, practices, or circumstances that lead to arbitrary detention,” the report says. Life beyond Guantánamo, for some men, is just another Guantánamo. Those who cannot be repatriated are instead sent to a “third” country like Kazakhstan, where former detainees have been met with more arbitrary detention, Ní Aoláin found.

The special rapporteur highlighted Kazakhstan and the United Arab Emirates as two countries of “egregious” concern where men have been sent to another form of prison. “In Kazakhstan former detainees effectively remain under house arrest and are unable to live a normal and dignified life due to the secondary security measures put in place post transfer,” she wrote. In the UAE, Ní Aoláin found “multiple former detainees were subject to arbitrary detention and torture, and one remains detained in incommunicado detention.”

The U.N. investigation found that the men released from Guantánamo in resettlement deals have not been given proper legal status by their host countries in 30 percent of documented cases. This lack of asylum risks “precluding them and their families from access to certain public benefits, health care, education, as well as foreign travel, or a path to citizenship, all of which are fundamental entitlements under international human rights law.”

Early this year, an investigation by The Intercept revealed that former Guantánamo prisoner Sabri al-Qurashi had been left without legal status since his relocation from Guantánamo to Kazakhstan in late 2014. Over nearly a decade in Kazakhstan, his treatment has only gotten worse, and he has become increasingly desperate. “I have no official status, no ID card, no right to work or education, and no right to see my family,” al-Qurashi said. Without a basic ID, he is unable to send or receive money, packages, or mail. When he wants to leave his apartment, he must call the Red Crescent office and ask for his assigned chaperone to accompany him. Since being freed, he has not been allowed to reunite with his family or his wife in Yemen, in conflict with the State Department’s negotiated resettlement deal, which was supposed to provide stability and possible family reunification.

“You have no rights,” al-Qurashi said he was told by Kazakh authorities. He was not allowed to press charges against a man who attacked him in the street, leaving him with permanent facial paralysis.

Now Muhammad Ali Husayn Khanayna, the only other former Guantánamo prisoner in Kazakhstan who is still alive, has come forward about his living conditions. “Soon, I will complete 10 years under the arbitrariness of the Kazakh government in a remote city for no reason,” he told The Intercept. He confirmed that he, too, has never been given documentation of residence, an ID, or his passport. “They treat us as if we were criminals who entered the country without their choice,” Khanayna said. Both al-Qurashi and Khanayna told The Intercept that Kazakh officials threatened to send them back to Yemen. “We were handed over by the American government to the militias of Kazakhstan,” Khanayna said. “Not a government that has international law or a law that protects the citizens.”

The U.N. report calls for the situation of the men “arbitrarily detained” in Kazakhstan, the UAE, and any other country with a “serious violation of human rights” to be “urgently addressed.” The U.S. should facilitate their resettlement again in a new host country, Ní Aoláin argues.

“There is a legal and moral obligation for the U.S. government to use all of its diplomatic and legal resources to facilitate (re)transfer of these men, with meaningful assurance and support to other countries,” she concludes.

A State Department representative previously told The Intercept that the U.S. government does not agree with the characterization that it has a “legal and moral” obligation to the resettled detainees. “Once security assurances have expired, and pending any specific renegotiation of assurances, it largely falls to the discretion of the host country to determine what security measures they continue to implement,” Vincent Picard said when asked for comment on the former detainees in Kazakhstan.

As al-Qurashi and Khanayna have been stuck in stateless purgatory for nearly a decade, some of the recommendations of the U.N. report come far too late. The report strongly recommends that for all resettlements and repatriations, “a formal and effective follow-up system be established as part of the remedial obligations owed by the U.S. government.” Had a system like that been in place when they were transferred, the Guantánamo detainees in Kazakhstan could have received some assistance. In 2015, they told VICE News that their mistreatment began as soon as they stepped off the plane in the former Soviet country.

“This was a mistake by the Americans in the beginning, and the Americans will not be able to change our situation inside this country,” Khanayna told The Intercept. “They only have to get us out of here.” He said he would prefer to be transferred to an Arab country like Qatar because it has a reputation of treating Guantánamo prisoners well.

“The Kazakh government is a criminal government. It has treated us like animals,” al-Qurashi said in response to the new U.N. findings. “I’m hurting from my heart.”

The post Released Guantánamo Detainees Are Still Being Denied Human Rights, U.N. Report Warns appeared first on The Intercept.

Border Patrol Video of Killing Shows Native Man Had No Gun, Complied With Orders

Ryan Devereaux — Mon, 26 Jun 2023 19:40:10 +0000

The facade of Raymond Mattia’s one-story home on the Tohono O’odham Nation, on the edge of Arizona’s southern border, is still riddled with bullet holes.

The 58-year-old was killed in a hail of gunfire last month, after stepping outside to find nearly a dozen Border Patrol agents and at least one tribal police officer advancing on his property in the dark. Late last week, a tensely awaited medical examiner’s report ruled the case a homicide, finding that Mattia was shot nine times. Border Patrol body camera footage released at the same time confirmed that what the authorities thought was a gun was in fact Mattia’s cellphone.

For Mattia’s family, more questions arose from the videos than answers, hardening their resolve to find accountability for the loss of a beloved father, brother, and uncle.

“If they’re allowed to get away with this now, it’s not going to stop.”

“We feel after watching the video that he was trying to comply the best he could,” Mattia’s niece, Yvonne Nevarez, told The Intercept. “If they’re allowed to get away with this now, it’s not going to stop.”

On Friday, Tohono O’odham Chair Ned Norris Jr. and Vice Chair Wavalene Saunders issued a statement on the body camera video and autopsy. “The information contained in the report and the body camera footage is graphic and concerning,” it said. “But we must not prejudge the situation and continue to allow investigating agencies to do their fact-finding work.”

The case is still under investigation, with the participation of the Border Patrol’s parent agency, Customs and Border Protection, as well as the FBI and the Tohono O’odham Nation. Of the 10 Border Patrol agents involved in the incident, three opened fire, CBP has said. Those agents are currently on administrative leave. Whether Tohono O’odham police also opened fire is unclear.

The family hoped that the body camera videos would provide answers to their questions. When they arrived at a Tohono O’odham police substation last week to view the footage, however, they found that was not the case. Though CBP had confirmed that all 10 agents involved in the incident were wearing body cameras, the family was shown the same 28-minute edited video the agency released to the public last week, which only included video from the three agents who opened fire.

“We were under the impression that we were going to watch raw footage,” Nevarez said. “The way they put it together feels like a cheap attempt to justify what they did, and it feels like none of them are on our side. It feels like they’re just trying to defend themselves, instead of defending my uncle Ray.”

At around 9 p.m. on May 18, according to CBP, a Border Patrol station in Arizona’s remote west desert received a call for assistance from the Tohono O’odham authorities. The tribal police had received a report of shots fired in Menagers Dam, a Tohono O’odham village on the U.S.-Mexico border, 140 miles southwest of Tucson.

In a recording of the call, a Tohono O’odham police dispatcher reported that two tribal officers were headed to the village. A convoluted story then followed, involving multiple unidentified people and a restraining order, and mentioned a report of a shooting the previous day and a dangerous man in the area with a rifle. No names or addresses were relayed by Tohono O’odham authorities, and the origin of the purported shots was unclear.

“Everybody is saying they heard two,” the dispatcher said. “Nobody can pinpoint where it came from.”

Border Patrol agents mobilized within minutes. At 9:27 p.m., the agents met with an officer from the tribal police department at the Menagers Dam recreation center. The officer gave the agents the name of a man — redacted in the videos released last week — and said shots were fired in the vicinity of his property.

“It’s going to be a little bit of a guessing game trying to find it,” the officer said. “I don’t know exactly where that motherfucker’s at.” They would be approaching two homes with two brothers living in the buildings, he explained; one had a rifle.

“It’s dark as fuck,” he said, as the combined unit headed out, carrying rifles of their own.

At approximately 9:35 p.m., a convoy of seven law enforcement vehicles descended on Mattia’s property. Four minutes after arriving, the officers and agents approached his front door.

Standing outside his home, Mattia was ordered to approach with his hands up. “I am,” he said. Mattia was then ordered to “put it down.” In the body camera footage, an object can be seen tossed away by Mattia after he received the command; it was his sheathed hunting knife. The officers and agents then began shouting at Mattia with escalating intensity.

“Get on your fucking face,” one of the men yelled.

“Put your hands out of your fucking pocket,” ordered another, his gun pointed at Mattia.

Mattia pulled his hand out of his pocket. One second later, the officers and agents let loose of volley of shots — initial reports indicated as many as 38 rounds were fired.

Mattia wheeled around then crumpled to the ground. The officers and agents began screaming at him. “Put your hands up so we can help you,” shouted one. “He’s still got a gun,” yelled another. “Put your hands out, bro,” said a third. “You’re gonna get shot again.”

Face down in the dirt, moaning and bleeding heavily, Mattia did not move. His hands were cuffed behind his back. The authorities, intent on finding a weapon, did not. Instead, they found Mattia’s cellphone.

“They asked him to take his hands out of his pockets. And that’s what he did. And then they shot him.”

“They asked him to drop his weapon,” Nevarez, Mattia’s niece, said. “That’s why he threw his knife toward them, and it was still in its sheath. They asked him to take his hands out of his pockets. And that’s what he did. And then they shot him.”

At 9:46 p.m., the authorities called for an air evacuation but were advised that one could not be provided due to inclement weather. A doctor declared Mattia dead at 10:06 p.m.

Roughly 31 seconds passed from the moment Mattia received his first command to the moment the first shot was fired. His body would remain where he had fallen for nearly seven hours.

In the moments before he was killed, Mattia was on the phone with his older sister, who lives nearby in the village. Requesting that her name be withheld out of fear of retaliation, she described what she saw and heard that night — and what her family has experienced in the weeks since.

Mattia’s sister had been working outside all day. After sundown, she had turned on the TV and begun cooking dinner when her dog barked in the direction of her brother’s home. She texted him to see if everything was OK. Mattia replied that a man was just in his house, demanding to use the phone, presumably after crossing the border.

“He said he argued with him. And then another male walked into his home, and then another,” Mattia’s sister told The Intercept. “There were three of them all together. And he said that he just grabbed his hunting knife and scared them off. And he said they ran.”

The experience was not uncommon in Menagers Dam, but, depending on the situation, it could be unsettling. “Peaceful migrants who are trying to come through for a better life have never been a problem,” Nevarez said. “But there is a lot of illegal activity that happens here with drug smuggling and human traffickers.”

Help was never guaranteed. “It takes hours for anyone to come out here,” Mattia’s sister said. “If they’re not in the area, they don’t make their way over here.” One person she could count on was her brother. “Ray has always been here to protect me in the yard,” she said. “We hear something, our dogs start barking, and he’ll walk around with a flashlight to see what’s going on.”

Mattia told his sister he called authorities to report the men in his home, though which authorities he may have called is unclear. Around the time of the siblings’ text exchange, a convoy of law enforcement vehicles began filing into their village, and armed men began jumping out. Mattia’s sister was alarmed. This time, she called her brother.

“I said, ‘They’re running all crazy,’” she recalled. “I told him, ‘They’re in the wash running toward your house.’”

“I was in shock, just hearing all those gunshots, knowing they were shooting at my brother.”

Mattia’s sister remembered Raymond responding calmly, telling her that he would go outside and talk to the agents. Seconds later, she heard a sound she will never forget: a cacophony of gunfire so heavy that she thought a cross-border shootout was underway. She could see lights flashing around her brother’s property and heard a man’s voice shouting for someone to grab his bag. She immediately knew he was seeking his first-aid kit.

“I was in shock, just hearing all those gunshots, knowing they were shooting at my brother,” she said. “I saw Border Patrol running from vehicle to vehicle, and I shouted to them: ‘What are you guys shooting at? Did you just shoot my brother Raymond?’ And they said, ‘We possibly did.’ And they kept running.”

At a loss for what to do, Mattia’s sister called her children but was so distraught, they could barely understand what she was saying. She decided to drive to the home of her adult niece and nephew — Raymond’s children — and go from there.

Raymond Mattia, who was killed in a Border Patrol raid in May, as seen in a recent family photograph.

Photo: Courtesy of Yvonne Nevarez

Together, the family approached the scene of the shooting. Mattia’s sister was met by the Tohono O’odham police officer who led the operation. “I said, ‘I want to know what happened to Ray — why were they shooting Ray so many times? Why are they all here?’” she recalled asking. “All he told me was, ‘You can’t go over there. It’s a crime scene now.’”

The family stood and watched as Border Patrol agents picked up the bullet casings that littered the ground. An overnight storm rolled in. It began to rain. The family continued to wait. “They were there for a while, and we were just watching them,” Mattia’s sister said. “As I saw them walking by with their guns, it just felt like they were walking in slow motion.”

The hours ticked away. The family was unsure if Mattia was alive or dead. “Nobody’s talking to us. Nobody’s telling us anything,” Mattia’s sister said. Eventually, the worst was confirmed: Mattia was gone. His sister told an investigator that they needed to perform a blessing on the body. “It’s traditional,” she said. The family was denied, though the man did offer to set a candle by Mattia’s corpse.

In the early morning hours, Mattia’s remains were finally loaded into a vehicle. The family said their goodbyes to an unopened body bag.

“We did a blessing for him while he was in the vehicle in a body bag, and we had one of our traditional singers sing a song for him, a traditional song,” Mattia’s sister said. “We all took it very hard.”

Mattia’s body was taken to Tucson.

“I asked the coroner, ‘When we have Ray’s funeral, will we be able to have an open casket?’” his sister said. “She said, ‘His face is OK, but from the neck down — it’s not very good.’”

In the weeks since, Mattia’s sister had a single meeting with a Tohono O’odham investigator. Other than that, the family has not been interviewed by the authorities, including the federal authorities at the Departments of Justice and Homeland Security involved in the investigation.

Mattia was a member of the community council in Menagers Dam, where he had been outspoken against the corruption he saw on the border, including corruption involving border law enforcement. He was a traditional singer, an avid hunter, and an artist, making jewelry, pottery, and paintings that honored the borderlands that the Tohono O’odham call home.

For Mattia’s family, none of the information that’s emerged so far has been able to explain why the authorities ended up at his home in the first place. The references to a restraining order and a double shooting in the community the previous day don’t make sense.

“My uncle Ray was out of town celebrating his birthday the night before,” Nevarez said. “The dispatcher states that they couldn’t pinpoint where the shooting was coming from, but yet, when they are there at the rec center, they’re coming straight to my uncle Ray’s house, with their guns drawn.”

“They’re walking around like it’s the war zone,” she said. “This is a village. People live here. Our houses are in close proximity to each other, and there’s people with families and children that live around here.”

The post Border Patrol Video of Killing Shows Native Man Had No Gun, Complied With Orders appeared first on The Intercept.

A Year After Dobbs, the Anti-Abortion Right Is Grilling Doctors on Tattoos, Tweets, and Too-Strong Beliefs

Judith Levine — Sat, 24 Jun 2023 10:00:00 +0000

Dr. Caitlin Bernard in Indianapolis on Sept. 28, 2022.

Photo: Kaiti Sullivan for The Washington Post via Getty Images

Some three hours into the 14-hour inquisition of Dr. Caitlin Bernard before the Indiana physician’s licensing board, the assistant attorney general asked her an odd question: “Do you have a tattoo of a coat hanger that says, ‘Trust women,’ on your body?”

It was hard to tell which part offended him more: the coat hanger or “trust women.”

Bernard’s attorney objected to the question as irrelevant. And legally speaking, it was. For the record, Bernard does have such a tattoo, on her left foot, inked years ago to remind her of life in the bad old days. She is not ashamed of it.

But the question was certainly not an opening for the doctor to express pride in her profession and her advocacy of reproductive health care. It was not meant to seek information. Nor was the query a misstep. The interrogator, Cory Voight, was on a mission to prove this respected OB-GYN unfit to practice medicine.

But, it seemed, even that was not enough. As the surrogate for his boss, the fiercely anti-abortion Indiana state Attorney General Todd Rokita, Voight wanted to tear the defendant down emotionally and in the eyes of the public. Asking a woman in a professional hearing about a mark on her body — using the word “body” — was part of a larger strategy, one long deployed by anti-abortion forces against abortion-seekers. Now they’re using it against providers and advocates as well. The strategy is humiliation.

Bernard’s trial, at the May 25 meeting of Indiana’s physician’s licensing board, was the latest chapter in Rokita’s yearlong smear campaign. In June 2022, just after the Dobbs decision triggered the misnamed “fetal heartbeat” abortion ban in Ohio, Bernard performed an abortion on a 10-year-old rape victim from that state. She told a local reporter the girl’s age, gestational stage, and state of origin, not her name or any other identifying details. She spoke again at a reproductive rights rally, warning that thousands of Indianans, including children, would be subject to similar, unnecessary trauma should the state pass an abortion ban in an upcoming special session. The case became national news. Bernard was celebrated as a hero.

Rokita was apoplectic. First, he circulated the calumny that Bernard had invented the patient. When it turned out the patient existed and a suspected perpetrator was arrested, Rokita cast around for laws Bernard might have broken. He came up with another false allegation — that she’d violated patient privacy and reporting laws — and petitioned the board to revoke her license. To do the job, Rokita sent the slimy-mouthed Voight. During the trial, many of his questions began, “Isn’t it true that …”

In another volley of questions, attempting to show that Bernard used the rape victim as a political tool, Voight declared, “No physician has been as brazen in pursuit of their own agenda.” “Brazen” is another one of those words, evoking “brazen hussy.” “She is unfit to practice medicine.” Morally unfit, that is.

Bernard is tough. She has withstood years of harassment and threats of violence against both her and her family. But several times during the hours of insinuation about her allegedly selfish, rash, and illegal conduct, the doctor was reduced to tears.

The IndyStar called the trial “persecution not prosecution.” After leading questions from a board member about the mushrooming media attention, including national news in which the alleged rapist’s identity and address were revealed, Bernard allowed that it might have been wise to describe her patient more elliptically — a sort of forced confession that she’d inadvertently harmed the child.

In the end, the board did not defrock the doctor. It did, however, find Bernard in violation of patient privacy laws and fined her $3,000 — permanent stains on her record. Arguably, her ordeal burnished her esteem among physicians, who decried her censure. Rokita did not break her.

But the champions of forced motherhood scored a point. The principled, trusted, and nationally respected Bernard was humiliated.

Dr. Leah Torres poses for a portrait at the West Alabama Women’s Center in Tuscaloosa, Ala., on March 15, 2022.

Photo: Allen G. Breed/AP

In 2020, Alabama abortion doctor Leah Torres was also punished by that state’s medical board for speaking out. In a moment of frustration two years earlier, asked by yet another troll if she heard the fetuses screaming when she aborted them, Torres sent off an angry tweet. Fired from a job in Utah, she had been invited to join the staff at the West Alabama Women’s Center, the only abortion provider for hundreds of miles around. Not two weeks into her employment, the state board charged her with lying on her medical license application about everything from her mental health to her intention to treat Covid-19 patients. She was also accused of making “public statements related to the practice of medicine which violate the high standards of honesty, diligence, prudence, and ethical integrity demanded from physicians licensed to practice in Alabama” — most likely a reference to the 2018 tweet.

“I felt like a child being reprimanded.”

In an unusual move, the state suspended Torres’s license during the investigation and through the end of the hearing. Seven months of earning nothing while incurring thousands of dollars in legal debt.

The committee that reviewed the board’s allegations did not concur with them. Nevertheless, they found that parts of Torres’s application “were suggestive of deceptive answers and a lack of ethical integrity.” She was required to take an ethics course and pay $4,000 in administrative fees to the board. Like Bernard’s, Torres’s reputation was tarred.

Also like Bernard, Torres was publicly humiliated. When investigators first came to her office to deliver the charges, they left with her physical license. “I felt like a child being reprimanded,” Torres told The Guardian.

Sometimes it appears that people in power are making their petitioners grovel simply because they can. Such nastiness was on display in May at the 5th Circuit Court of Appeals in New Orleans, during oral arguments regarding the case in which federal District Judge Matthew Kacsmaryk’s ruled that the Food and Drug Administration had wrongly approved mifepristone more than 20 years ago, raising the prospect of the abortion drug’s removal from the market nationally.

After a series of weird conjectures and uninformed queries, Judge Jennifer Walker Elrod set upon Jessica Ellsworth, attorney for drug distributor Danco Laboratories, for perceived rudeness in the company’s brief. Introducing the scolding session with her opinion that the filings contained “rather unusual remarks” that “we don’t normally see from very esteemed counsel,” Elrod proceeded to quote from the brief: “defied longstanding precedent,” “an unprecedented judicial assault,” “the court’s relentless one-sided narrative.” She went on.

Might the authors have been “under a rush,” perhaps “exhausted from this whole process,” the judge asked in sweetly assaultive tones. Did counsel “want to say anything about that?”

Ellsworth defended the language as reflecting the extraordinarily politicized nature of the ruling. Elrod persisted, offering alternative, politer phrasing. “Do you think it’s appropriate to attack the district court personally?” she prompted. “I wanted to give you a chance to comment on that.”

It was not an attack on the judge, Ellsworth replied. It was a critique of the court, the decision. But Elrod would not let up, and finally, the lawyer submitted. “I certainly think with more time, we may have ratcheted down some of that,” she said.

Penitence extracted from the prideful child, Judge James Ho took over with his own recital of sins, this time the FDA’s.

As both the method and the goal of misogynists, racists, abusers, tyrants, torturers, and the systems that uphold their power, humiliation can be its own reward. But it is not merely a social tool, and it does not act alone. Humiliation, along with shame and fear, are produced by and in turn fortify the laws that intrude on intimate life, control bodies, and punish those who resist. Together, restrictive laws and destructive emotions create the disciplinary environment that the right’s culture warriors have prayed and labored toward for decades.

Laws abridging bodily autonomy — bathroom patrols and genital inspections of student athletes, compulsory sonograms and lectures intended to get abortion patients to change their minds — intentionally humiliate their subjects, and always have. People seeking legal abortions in pre-Roe America, for instance, were required to seek approval from a (usually all-male) hospital board. Often, the winning plea was one of mental instability or suicidality — that is, self-incriminating evidence of the pregnant woman’s unfitness to mother.

Now activist public servants like Rokita and the members of politically appointed medical boards can turn to legislators to give their personal vendettas the force of law. Abortion remains legal in Indiana while a near-total ban is enjoined pending legal resolution, but confusion and fear about the law have reduced the number of abortions there precipitously. Alabama defines abortion as a Class A felony, carrying penalties of up to 99 years. West Alabama Women’s Center now provides comprehensive reproductive care, minus abortion, to low-income clients. Its staff is demoralized, and the clinic is struggling to stay afloat.

How do you fight an emotion? One way is to turn it around on its evokers.

A group of abortion rights comedians called Abortion Access Front have been staging political theater aimed at puncturing the confidence of the men legislating things they know nothing about: notably, women’s bodies. Their “Send in the Gowns” campaign encourages women to leave voicemails with as many gynecological details as possible, addressing the lawmakers as what they pretend to be. “Hi. Hello. This message is for Dr. Nutt,” begins Beth Stelling, calling South Carolina state Republican Rep. Roger Nutt. “I am lucky enough to have a womb [but] I do need advice because I don’t want to go to prison!” Her voice is both cheerful and earnest. “So the person I was making out with can’t stay hard with a condom, and it’s like, if I consent to the raw-dog activity and I get pregnant — I’m not on birth control, by the way, because it gave me anxiety, depression, dark patches of skin on my face …” In Tennessee, Abortion Access Front activists showed up at statehouse offices for medical “appointments” in hospital gowns.

In Florida, defenders of reproductive and LGBTQ+ rights have taken to tossing large, white, women’s panties emblazoned with political messages — “pantygrams” — at those responsible for the excrement issuing from the state’s legislative body. One such missive missile, launched by Bonnie Patterson-James at a May protest, landed near a county sheriff, who claimed it bounced and hit him on the leg. Patterson-James was arrested and charged with felony battery of a law enforcement officer. She was also among the protesters who panty-pelted legislators from the gallery of the Florida House while they debated the bill banning gender-affirming care. Weeks after the event, several participants were arrested; Guerdy Remy, a nurse who has run for local office, turned herself in and was cuffed, booked, and locked up in county jail before being released on $500 bail six hours later.

The arrests were part of Florida’s crackdown on dissent, particularly at the Capitol, which accounted for over 30 arrests during the 60-day legislative session. “They’re arresting them for tossing panties,” commented a spokesperson for the Florida Freedom to Read Project. “Seems Ron DeSantis and his administration are the ones who have gotten their panties in a twist.”

One of the demonstrators told the Orlando Sentinel that the arrests were payback for embarrassing the governor and the legislature — and a sign of the action’s success. Embarrassment may seem a weak rejoinder to systematic humiliation. But it’s a form of refusal to kneel — and that is the only way to pull the powerful down from on high.

The post A Year After Dobbs, the Anti-Abortion Right Is Grilling Doctors on Tattoos, Tweets, and Too-Strong Beliefs appeared first on The Intercept.

Atlanta DA Opposed Indicting Cop City Legal Observer, but Georgia Attorney General Pushed Charges Anyway

George Chidi — Wed, 21 Jun 2023 18:21:00 +0000

As Georgia prosecutors pursue increasingly aggressive tactics against Cop City protesters, Georgia Attorney General Chris Carr intervened to double down on domestic terrorism charges against a legal observer, previously unreported meeting minutes reveal.

Thomas Webb Jurgens, a legal observer from the Southern Poverty Law Center, is facing charges of domestic terrorism after being swept up in arrests made back in March at the forest-turned-construction-site outside Atlanta where activists have been protesting a multimillion-dollar police training center for more than a year.

But when DeKalb County’s district attorney called to drop charges against Jurgens, who was wearing bright green clothing to identify him as a legal observer at the time of his arrest, Carr, a conservative Republican with a Federalist Society pedigree, overruled the objections.

Georgia Bureau of Investigation, or GBI, Director Michael Register, an appointee of Republican Gov. Brian Kemp, reported the exchange at a Georgia Board of Public Safety meeting in April. After confirming the state planned to pursue controversial racketeering charges against those arrested following a concert at the site on March 5, Register added that “Dekalb County wanted to drop the charges on the attorney from the Southern Poverty Law Center who was arrested from this incident, and the Attorney General said no.”

After the concert in the park on March 5, a group of black-clad provocateurs broke away and began damaging construction equipment and throwing Molotov cocktails at police, according to law enforcement officials’ statements. The website Defend the Atlanta Forest, which activists have used for public communication, acknowledged that “a separate protest group with hundreds of people marched to the forest” during the group’s “week of action” concert, in response to the killing of environmental activist Manuel “Tortuguita” Terán at the hands of police in January.

“Police retaliated viciously by raiding the entire forest, arresting at least 35 people at the nearby music festival, including people with no connection to or awareness of the action on the other side of the nearly 600 acre forest,” activists wrote.

Police charged 23 people after arrests at the event. Most are facing domestic terrorism and state racketeering charges, which are being prosecuted by the state attorney general’s office.

Carr has held a series of increasingly powerful institutional and politically appointed positions in Georgia’s Republican firmament, beginning with work as general counsel for the Koch-backed Georgia Public Policy Foundation, then as chief of staff for former Sen. Johnny Isakson, culminating in a 2016 appointment to succeed Sam Olens as Georgia’s attorney general. Carr has since won two statewide elections as attorney general and is widely expected to run for higher office.

Georgia’s Republican-controlled legislature took a swipe at the autonomy of local prosecutors this year when Senate Bill 92 created the Prosecuting Attorneys Qualifications Commission, a statewide oversight council aimed at reining in locally elected prosecutors who engage in the “willful and persistent failure to carry out statutory duties.” Initially conceived as a reaction to prosecutorial failures in the Ahmaud Arbery case, Republican lawmakers more recently appeared to be motivated by a progressive prosecutor in Clark County — home of the University of Georgia college town Athens — who had begun refusing to prosecute minor drug cases.

Other Democratic district attorneys around the state have objected to the new commission, suggesting that it is designed to punish prosecutors who refuse to enforce the state’s newly empowered abortion laws or, in the case of Fulton County District Attorney Fani Willis, the potential prosecution of former President Donald Trump and alleged 2020 election interference conspirators.

Register’s comments suggest that decisions about prosecuting protesters on serious charges like racketeering or domestic terrorism are coming from the state’s Republican officeholders and not necessarily local law enforcement officials in overwhelmingly Democratic metro Atlanta counties.

The Southern Poverty Law Center did not respond to inquiries seeking comment. Jurgens’s attorneys, however, did.

“We are appreciative of GBI Director Register for bringing into the public light that the DeKalb County District Attorney’s Office correctly wanted to dismiss the charges against our client Tom Jurgens,” said his attorneys L. Burton Finlayson and Andrew Hall. “Tom is not a domestic terrorist. Tom is a locally-raised, University of Georgia undergraduate and Law School graduate (‘Double-Dawg’), practicing Georgia attorney who was working as a volunteer legal observer to ensure that all [protesters’] constitutional and civil rights were protected. Ultimately, we believe (and hope) that cooler heads among the prosecution team will prevail and that, upon a sober examination of the facts, all charges against him will be dismissed.”

Earlier this month, apparently under the direction of Carr, police arrested three organizers of the Atlanta Solidarity Fund on charges of money laundering and charity fraud. The warrants for their arrest were sworn out by a GBI agent and not local law enforcement officials, describing them as “domestic violent extremists” as designated by the Department of Homeland Security. The term has become a flashpoint in the case. While the Department of Homeland Security used the phrase in a May 24 security bulletin referring to protests in Atlanta, the department — for the second time — denied using the term as a formal designation for the Cop City activists.

A spokesperson for Carr refrained from comment for this story. A spokesperson for the GBI acknowledged Register’s comments, noting that it was his practice to provide updates about major activities around the state to other law enforcement leaders.

The office of DeKalb County District Attorney Sherry Boston also abstained from commenting directly on the protest case “because we cannot comment on an open case,” a spokesperson said. But her office did have something to say about the process.

“Domestic terrorism is one of only a handful of charges for which the state and county have concurrent jurisdiction,” Boston’s spokesperson said. “Early on, our office decided to join the multijurisdictional task force on the Atlanta Public Safety Training Center in order to protect the people of DeKalb County and represent their interests. While the Attorney General can prosecute these cases without input from the Office of the DeKalb County District Attorney, DA Boston and our team continue to advocate for charging decisions that align with the alleged actions of each individual defendant, as well as the mission and values of the DeKalb DA’s office.”

Register’s comments to the Georgia Board of Public Safety are somewhat more expansive than other statements made about law enforcement’s response to Cop City protests, possibly because these staid meetings of the state’s senior law enforcement officials — usually held somewhere other than a metro Atlanta location — are rarely covered by the media and generally draw little public attention.

In previous comments to the board from March 9, four days after the protest arrests at the Cop City site, Register described the incident from law enforcement’s perspective in detail. Police reacted to approximately 150 people walking up a cleared Georgia Power corridor through the forest, he said, who “had protective clothing on and some had shields made out of 55 gallon drums. The officers had to retreat across the roadway to a fenced in area and into another fenced in area to lock themselves in. The subjects came into the construction site and were using fireworks to shoot at the officers and throwing objects, such as rocks, at the officers. While a portion of the subjects was doing this, the other individuals went to various pieces of equipment and burned two four-wheelers and a front-end loader, a trailer, as well as the cameras that caught the assault.”

Of the 23 people arrested by the Atlanta Police Department and the Georgia State Patrol that night, only Jurgens and another protester, Jack Beaman of Decatur, were from Georgia, Register emphasized, according to the meeting minutes. “21 were from out of state and out of those, 2 were from out of country — Canada and France. Director Register stated the Bureau worked with its federal partners, as well as the State Department to contact their counterparts in Canada and France on these two individuals to dig a little deeper on them.”

Activists’ answer to this line of thought has been to suggest that police have deliberately targeted out-of-state protesters for prosecution, releasing people with local addresses after detaining them during demonstrations to inflate the perception of “outside agitators” spurring violence.

The post Atlanta DA Opposed Indicting Cop City Legal Observer, but Georgia Attorney General Pushed Charges Anyway appeared first on The Intercept.

LexisNexis Is Selling Your Personal Data to ICE So It Can Try to Predict Crimes

Sam Biddle — Tue, 20 Jun 2023 20:33:27 +0000

The legal research and public records data broker LexisNexis is providing U.S. Immigration and Customs Enforcement with tools to target people who may potentially commit a crime — before any actual crime takes place, according to a contract document obtained by The Intercept. LexisNexis data then helps ICE to track the purported pre-criminals’ movements.

The unredacted contract overview provides a rare look at the controversial $16.8 million agreement between LexisNexis and ICE, a federal law enforcement agency whose surveillance of and raids against migrant communities are widely criticized as brutal, unconstitutional, and inhumane.

“The purpose of this program is mass surveillance at its core.”

“The purpose of this program is mass surveillance at its core,” said Julie Mao, an attorney and co-founder of Just Futures Law, which is suing LexisNexis over allegations it illegally buys and sells personal data. Mao told The Intercept the ICE contract document, which she reviewed for The Intercept, is “an admission and indication that ICE aims to surveil individuals where no crime has been committed and no criminal warrant or evidence of probable cause.”

While the company has previously refused to answer any questions about precisely what data it’s selling to ICE or to what end, the contract overview describes LexisNexis software as not simply a giant bucket of personal data, but also a sophisticated analytical machine that purports to detect suspicious activity and scrutinize migrants — including their locations.

“This is really concerning,” Emily Tucker, the executive director of Georgetown Law School’s Center on Privacy and Technology, told The Intercept. Tucker compared the contract to controversial and frequently biased predictive policing software, causing heightened alarm thanks to ICE’s use of license plate databases. “Imagine if whenever a cop used PredPol to generate a ‘hot list’ the software also generated a map of the most recent movements of any vehicle associated with each person on the hot list.”

The document, a “performance of work statement” made as part of the contract with ICE, was obtained by journalist Asher Stockler through a public records request and shared with The Intercept. LexisNexis Risk Solutions, a subsidiary of LexisNexis’s parent company, inked the contract with ICE, a part of the Department of Homeland Security, in 2021.

“LexisNexis Risk Solutions prides itself on the responsible use of data, and the contract with the Department of Homeland Security encompasses only data allowed for such uses,” said LexisNexis spokesperson Jennifer Richman. She told The Intercept the company’s work with ICE doesn’t violate the law or federal policy, but did not respond to specific questions.

The document reveals that over 11,000 ICE officials, including within the explicitly deportation-oriented Enforcement and Removal Operations branch, were using LexisNexis as of 2021. “This includes supporting all aspects of ICE screening and vetting, lead development, and criminal analysis activities,” the document says.

In practice, this means ICE is using software to “automate” the hunt for suspicious-looking blips in the data, or links between people, places, and property. It is unclear how such blips in the data can be linked to immigration infractions or criminal activity, but the contract’s use of the term “automate” indicates that ICE is to some extent letting computers make consequential conclusions about human activity. The contract further notes that the LexisNexis analysis includes “identifying potentially criminal and fraudulent behavior before crime and fraud can materialize.” (ICE did not respond to a request for comment.)

LexisNexis supports ICE’s activities through a widely used data system named the Law Enforcement Investigative Database Subscription. The contract document provides the most comprehensive window yet for what data tools might be offered to a LEIDS clients. Other federal, state, and local authorities who pay a hefty subscription fee for the LexisNexis program could have access to the same powerful surveillance tools used by ICE.

The LEIDS program is used by ICE for “the full spectrum of its immigration enforcement,” according to the contract document. LexisNexis’s tools allow ICE to monitor the personal lives and mundane movements of migrants in the U.S., in search of incriminating “patterns” and for help to “strategize arrests.”

The ICE contract makes clear the extent to which LexisNexis isn’t simply a resource to be queried but a major power source for the American deportation machine.

LexisNexis is known for its vast trove of public records and commercial data, a constantly updating archive that includes information ranging from boating licenses and DMV filings to voter registrations and cellphone subscriber rolls. In the aggregate, these data points create a vivid mosaic of a person’s entire life, interests, professional activities, criminal run-ins no matter how minor, and far more.

While some of the data is valuable for the likes of researchers, journalists, and law students, LexisNexis has turned the mammoth pool of personal data into a lucrative revenue stream by selling it to law enforcement clients like ICE, who use the company’s many data points on over 280 million different people to not only determine whether someone constitutes a “risk,” but also to locate and apprehend them.

LexisNexis has long since deflected questions about its relationship by citing ICE’s “national security” and “public safety” mission; the agency is responsible for both criminal and civil immigration violations, including smuggling, other trafficking, and customs violations. The contract’s language, however, indicates LexisNexis is empowering ICE to sift through an large sea of personal data to do exactly what advocates have warned against: busting migrants for civil immigration violations, a far cry from thwarting terrorists and transnational drug cartels.

ICE has a documented history of rounding up and deporting nonviolent immigrants without any criminal history, whose only offense may be something on the magnitude of a traffic violation or civil immigration violation. The contract document further suggests LexisNexis is facilitating ICE’s workplace raids, one of the agency’s most frequently criticized practices, by helping immigration officials detect fraud through bulk searches of Social Security and phone numbers.

ICE investigators can use LexisNexis tools, the document says, to pull a large quantity of records about a specified individual’s life and visually map their relationships to other people and property. The practice stands as an exemplar of the digital surveillance sprawl that immigrant advocates have warned unduly broadens the gaze of federal suspicion onto masses of people.

Citing language from the contract, Mao, the lawyer on the lawsuit, said, “‘Patterns of relationships between entities’ likely means family members, one of the fears for immigrants and mixed status families is that LexisNexis and other data broker platforms can map out family relationships to identify, locate, and arrest undocumented individuals.”

The contract shows ICE can combine LexisNexis data with databases from other outside firms, namely PenLink, a controversial company that helps police nationwide request private user data from social media companies.

A license plate reader, center, and surveillance camera, top right, are seen at an intersection in West Baltimore, Md., on April 29, 2020.

Photo: Julio Cortez/AP

The contract’s “performance of work statement” mostly avoids delving into the numerous categories of data LEIDS makes available to ICE, but it does make clear the importance of one: scanned license plates .

The automatic scanning of license plates has created a feast for data-hungry government agencies, providing an effective means of tracking people. Many people are unaware that their license plates are continuously scanned as they drive throughout their communities and beyond — thanks to automated systems affixed to traffic lights, cop cars, and anywhere else a small camera might fit. These automated license plate reader systems, or ALPRs, are employed by an increasingly diverse range of surveillance-seekers, from toll booths to homeowners associations.

Police are a major consumer of the ALPR spigot. For them, tracking the humble license plate is a relatively cheap means of covertly tracking a person’s movements while — as with all the data offered by LexisNexis — potentially bypassing Fourth Amendment considerations. The trade in bulk license plate data is generally unregulated, and information about scanned plates is indiscriminately aggregated, stored, shared, and eventually sold through companies like LexisNexis and Thomson Reuters.

Though LexisNexis explored selling ICE its license plate scanner data according to the FOIA materials, federal procurement records show Thomson Reuters Special Services, a top LexisNexis Risk Solutions competitor, was awarded a contract in 2021 to provide license plate data. (Thomson Reuters did not immediately respond to a request for comment.)

A major portion of the LEIDS overview document details ICE’s access to and myriad use of license plate reader data to geolocate its targets, providing the agency with 30 million new plate records monthly. The document says ICE can access data on any license plate query going back years; while the time frame for different kinds of investigations aren’t specified, the contract document says immigration investigations can query location and other data on a license plate going back five years.

“This begins to look a lot like indiscriminate, warrantless real-time surveillance capabilities for ICE with respect to any vehicle.”

The LEIDS license plate bounty provides ICE investigators with a variety of location-tracking surveillance techniques, including the ability to learn which license plates — presumably including people under no suspicion of any wrongdoing — have appeared in a location of interest. Users subscribing to LEIDS can also plug a plate into the system and automatically get updates on the car as they come in, including maps and vehicle images. ICE investigators are allowed to place up to 2,500 different license plates onto their own watchlist simultaneously, the contract notes.

ICE agents can also bring the car-tracking tech on the road through a dedicated smartphone app that allows them to, with only a few taps, snap a picture of someone’s plate to automatically place them on the watchlist. Once a plate of interest is snapped and uploaded, ICE agents then need only to wait for a convenient push notification informing them that there’s been activity detected about the car.

Combining the staggering number of plates with the ability to search them from anywhere provides a potent tool with little oversight, according to Tucker, of Georgetown Law.

Tucker told The Intercept, “This begins to look a lot like indiscriminate, warrantless real-time surveillance capabilities for ICE with respect to any vehicle encountered by any agent in any context.”

In conjunction with Thomson Reuters plate-reader data, the information provided by LexisNexis creates a potential for powerful tracking. Vehicle ownership and registration information from motor vehicle departments, for instance, can tie specific people to plate numbers. In addition, LexisNexis sells many other forms of personal information that can be used to chart a person’s general location and movements over time: Data on jail bookings, home utilities, and other detailed property and financial records tie people to both places and others in a way that’s difficult if not impossible to opt out of.

LexisNexis’s LEIDS program is, crucially, not an outlier in the United States. For-profit data brokers are increasingly tapped by law enforcement and intelligence agencies for both the vastness of the personal information they collect and the fact that this data can be simply purchased rather than legally obtained with a judge’s approval.

“Today, in a way that far fewer Americans seem to understand, and even fewer of them can avoid, CAI includes information on nearly everyone,” warned a recently declassified report from the Office of the Director of National Intelligence on so-called commercially available information. Specifically citing LexisNexis, the report said the breadth of the information “could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.”

While the ICE contract document is replete with mentions of how these tools will be used to thwart criminality — obscuring the extent to which this the ends up deporting noncriminal migrants guilty of breaking only civil immigration rules — Tucker said the public should take seriously the inflated ambitions of ICE’s parent agency, the Department of Homeland Security.

“What has happened in the last several years is that DHS’s ‘immigration enforcement’ activities have been subordinated to its mass surveillance activities,” Tucker said, “which produce opportunities for immigration enforcement but no longer have the primary purpose of immigration enforcement.”

“What has happened in the last several years is that DHS’s ‘immigration enforcement’ activities have been subordinated to its mass surveillance activities.”

The federal government allows the general Homeland Security apparatus so much legal latitude, Tucker explained, that an agency like ICE is the perfect vehicle for indiscriminate surveillance of the general public, regardless of immigration status.

“That’s not to say that DHS isn’t still detaining and deporting hundreds of thousands of people every year. Of course they are, and it’s horrific,” Tucker said. “But the main goal of DHS’s surveillance infrastructure is not immigration enforcement, it’s … surveillance.

“Use the agency that operates with the fewest legal and political restraints to put everyone inside a digital panopticon, and then figure out who to target for what kind of enforcement later, depending on the needs of the moment.”

Update: June 21, 2023
This story has been updated to clarify that Thomson Reuters Special Services was contracted in 2021 to provide license plate scanner data for the LEIDS program used by ICE.

Update: June 23, 2023
This story has been updated to include specifics on the types of data LexisNexis makes available to ICE that could allow the agency to geolocate and track people.

The post LexisNexis Is Selling Your Personal Data to ICE So It Can Try to Predict Crimes appeared first on The Intercept.

After 29 Years on Death Row, Barry Jones Was Dumped at a Bus Station. But He Was Finally Free.

Liliana Segura — Sat, 17 Jun 2023 21:35:22 +0000

Barry Jones rarely dared to imagine his release from death row. Sometimes, when he was feeling low, his paralegal, whom he called Ms. Jennifer, tried to buoy his spirits by promising that one day his legal team would drive up in the “habeas van” to the desert prison in Florence, Arizona, honking and celebrating, ready to take him home. It was never going to be like that, of course. But neither could they have predicted where Jones would find himself on June 15, in his first moments of freedom after 29 years: alone at a Del Taco near the bus station, being told he could not use the phone.

The previous 24 hours had gone mostly according to plan. He’d spent Wednesday giving away most of his things to friends and neighbors on death row. The next morning, around 4:30 a.m., Jones ate some instant oatmeal for breakfast and prepared to leave his cell for the last time. He boarded a van for the ride down to Tucson, the sprawling prison complex fading from view behind him. By 9:30 he’d arrived at Pima County Superior Court, where a judge would sanction his release at a hearing later that morning. Jones had hoped to walk out there and then. Instead, he was driven around by officers with the Arizona Department of Corrections who didn’t seem to know what to do with him. They eventually arrived at a probation office, where he was finally uncuffed and given a change of clothes. Then they dumped him at the Greyhound station downtown.

With no money, no cellphone, and no experience navigating the city in decades, Jones looked for a pay phone to make a collect call but found none. “Even at the bus station — this is a bus station,” he later said with disbelief. “Wow.” So he started walking toward the one downtown address he knew: the office of the Arizona Federal Public Defender.

In a blue T-shirt, dark jeans, and white sneakers, Jones made his way west. He carried a trash bag with a few belongings and an envelope with his release documents inside. It was a typically bright, hot Arizona day. But he was struck by how green Tucson looked compared to Florence, where there was nothing but brown desert as far as the eye could see. “You know, this ain’t so bad,” he thought. If he didn’t find anyone at the office, he could try to find his son’s house. He could even sleep under a bridge if he had to. What mattered was that he was no longer in prison. “I can do whatever I want.”

What Jones didn’t know was that people were frantically looking for him. His daughter, Brandie, had gone with her family to the Pima County Jail, where she’d originally been told Jones would be held until his paperwork cleared. At the federal defender’s office, Jones’s longtime attorney, Cary Sandman, grew increasingly agitated as he made calls and sent emails looking for his client. When Sandman finally got word that Jones had been left at the bus station, retired investigator Andrew Sowards rushed out to pick him up. But when he got there, Jones was gone.

A search party ensued. Members of the legal team and staff from the Arizona Justice Project split up to look for Jones. Finally, around 2 p.m., a voice came through on speakerphone at the office: “We found him.” Jones was just a block away. He had walked more than a mile. A few minutes later, Jones came through the door, sweaty, smiling, and wearing a can you believe this? expression. Jennifer Schneider, the paralegal, gave him a T-shirt she had been saving for that day. It read “Free Bird.”

The first wave of family filed into the office a little while later. In a large conference room with panoramic windows, Jones reunited with his kids, Brandie, Andrew, and James, along with their children and extended relatives, some of whom he was meeting for the first time. His niece recounted the rush to drive to Tucson earlier that day: “I did 80 and 90 all the way down,” she said. Jones didn’t miss a beat, “I don’t wanna hear nothing about breaking the law.”

Before long, the stress from earlier had melted away. Sowards, one of Jones’s biggest supporters, was amazed as he watched Jones joke and laugh surrounded by people. Jones had never liked crowds in prison; Sowards was nervous he might feel overwhelmed. “But it was the exact opposite,” he said. He saw a side of Jones that was lost in the decades he spent on death row. Jones had been a social guy before his wrongful conviction. “He loves people and loves these people in particular. I think he’s always wanted to be the friendly guy that he was way back then.”

People repeatedly asked Jones what he wanted to eat, but he didn’t have an answer — somehow, he wasn’t hungry. But he did say he’d like to grill burgers that weekend. There was a park he liked to go to back in the day. They could have a cookout for Father’s Day. Brandie said it would be hot; maybe they could plan something indoors. But Jones said he’d rather be outside. “I’ve spent enough time inside.”

Barry Jones poses for a photo with members of his legal team at the office of the Arizona Federal Public Defender in Tucson, Ariz., on June 15, 2023.

Photo: Molly Peters for The Intercept

“Innocence Isn’t Enough”

Jones’s release was the culmination of a harrowing saga that started almost 30 years earlier. After being sentenced to death in 1995 for a crime he swore he didn’t commit, Jones thought his nightmare might be ending in 2018, when a federal judge overturned his conviction. Instead, his case became an emblem of Arizona’s dysfunctional death penalty, the U.S. Supreme Court’s radical rightward shift, and the cruelty of a legal system that prioritizes finality over fairness — even if it means executing an innocent person.

Jones was sentenced to death for the rape and murder of his girlfriend’s 4-year-old daughter, Rachel Gray. The child had died from a sharp blow to her abdomen, which led to a fatal case of peritonitis. The Pima County Sheriff’s Department singled out Jones as the sole suspect before an autopsy had even identified Rachel’s cause of death. Prosecutors based their case on a narrow window of time during which Jones had been seen with Rachel before she died.

But no one investigated the medical evidence: not the lead detective, Sonia Pesqueira, and not Jones’s own court-appointed attorneys, who left the state’s theory unchallenged at trial. It was only when Jones’s federal defenders took his case years later that they discovered the state’s timeline was medically impossible.

Assistant Federal Public Defender Cary Sandman, representing Barry Jones, appears before Judge Kyle Bryson at the Pima County Superior Courthouse in Tucson, Ariz., on June 15, 2023.

Photo: Molly Peters for The Intercept

The odds of Barry Jones getting this evidence into a courtroom were slim. Ideally, Jones’s state post-conviction lawyer would have challenged the trial lawyers’ failure to investigate the medical evidence, arguing that Jones received ineffective assistance of counsel — a violation of his Sixth Amendment rights. Instead, his state post-conviction attorney compounded the trial lawyers’ mistakes.

Under the burdensome rules dictating federal habeas appeals, if a defendant failed to challenge their trial lawyers’ performance in state court, they would be barred from doing so in federal court. But in 2012, the Supreme Court’s ruling in Martinez v. Ryan carved out a rare path to relief for people like Jones: If the failure to bring such a claim was due to the post-conviction attorney’s own ineffectiveness, the petitioner should have another shot at relief.

The ruling got Jones back into federal court. In 2017, U.S. District Judge Timothy Burgess presided over a seven-day evidentiary hearing in Tucson, where Sandman and his colleagues presented evidence that had never made it to trial. The testimony dismantled the state’s case against Jones, revealing not only the failings of his attorneys, but also law enforcement officials’ rush to judgment.

Burgess seemed disturbed by Pesqueira, who conceded that she never considered other suspects apart from Jones. And he seemed especially fed up with former Pima County medical examiner John Howard, whose testimony was critical to sending Jones to death row. Howard had previously estimated that Rachel’s abdominal injury was “most consistent” with occurring 24 hours or more before she died. But at Jones’s trial, he shortened the time frame to just 12 hours, which neatly fit the state’s theory of the crime.

In 2018, Burgess vacated Jones’s conviction. If not for the failures of his trial attorneys, the judge wrote, jurors likely “would not have convicted him of any of the crimes with which he was charged and previously convicted.” Burgess ordered the state to retry Jones or release him.

Instead, Arizona Attorney General Mark Brnovich appealed, first to the 9th U.S. Circuit Court of Appeals, which upheld the core of Burgess’s findings, and then to the U.S. Supreme Court. The state’s lawyers insisted that under the Antiterrorism and Effective Death Penalty Act, Jones should never have been allowed to present the evidence that persuaded Burgess to vacate his conviction. The argument seemed far-fetched: It would mean gutting the Supreme Court’s own ruling in Martinez v. Ryan. But to the dismay of Jones’s legal team, the court took the case.

During oral argument, the attorney general’s office said that it didn’t matter if the evidence showed Jones was not responsible for the crime that sent him to death row. “Innocence isn’t enough,” the state’s lawyer, Brunn Wall Roysden III, said. In May 2022, the justices agreed, reinstating Jones’s death sentence and destroying a lifeline for incarcerated people whose lawyers failed them at trial.

Barry Jones greets his family after his release following 29 years on Arizona’s death row.

Photo: Molly Peters for The Intercept

“Some Measure of Justice”

I first wrote about Barry Jones in 2017, in advance of the federal evidentiary hearing in Tucson. One of the first people I met was a juror from his trial, who was haunted by her role in the case. As she recalled it, the evidence against Jones was weak — so weak, she thought surely his conviction had already been overturned. She was distressed to learn that he still faced execution. Before she died in 2020, she expressed hope that Jones would be exonerated.

Over time, I came to learn just how many people believed in Jones’s innocence, including current and former members of his legal team. They worried about Jones’s mental health, which had been ravaged by his time on death row. Before his conviction was overturned, Jones saw 34 neighbors taken to the death chamber. After executions were placed on hold in Arizona following a series of botched lethal injections, Brnovich pushed to resume them last year. In the months after the Supreme Court’s decision in Jones’s case, known as Shinn v. Ramirez, three more men were executed.

In the meantime, however, some critical shifts began to take place. At a hearing in September, Burgess urged lawyers on both sides to consider settling Jones’s case through mediation. “I do think it would be in everybody’s best interest, including society’s best interest, if we can resolve this case,” he said. A judge was assigned to oversee the process.

Two months later, Arizona voters elected a new attorney general, with Democratic candidate Kris Mayes defeating her Republican opponent by just a few hundred votes — one of the closest margins in state history. For Arizona’s death row, the result was literally the difference between life and death. In January, Mayes announced that she was putting executions on hold.

Throughout it all, Jones tried not to get his hopes up. He was encouraged by the judge overseeing the mediation; at their first meeting in December, she had spoken to him for an hour and seemed genuinely committed to a just result. But after almost three decades of wrongful incarceration, he knew better than to pin his hopes on any legal process.

As the months passed, Sandman tried to visit Jones in Florence once a week. In April, he told Jones that there was a tentative agreement that could allow him to walk free, but it would require him to plead guilty to failing to take Rachel to the hospital the night before she died.

The Supreme Court decision left Barry Jones with “a series of bad choices.”

Jones never wished to plead guilty to any part of his case. But as Sandman told Burgess at the hearing last fall, the Shinn decision left them with “a series of bad choices.” At 64, Jones did not have time to litigate for another decade — and even if he did, there was little reason to trust the courts. “The only way to get some measure of justice for him was to compromise,” Sandman said. Jones’s close family friend, Debbie Wheeler, urged him to agree to the deal. “I said, ‘Barry, just sign whatever you have to do to get out.’”

On April 19, Burgess approved the settlement agreement between Jones’s attorneys and the state. Two weeks later, Sandman filed a petition with the Pima County Superior Court requesting that Jones’s conviction be overturned. The state would agree to the request on the condition that Jones plead guilty to the agreed-upon charge. He would then be sentenced to 25 years with credit for time served.

On May 22, the one-year anniversary of the Shinn decision, Pima Superior Court Judge Kyle Bryson agreed to the terms. He set a hearing for June 15. Over the next few weeks, the reality that Jones might actually be released started to sink in. “You could tell he was believing it,” Wheeler said. “But it was just so hard for him to process it.”

Just before 11 a.m. on June 15, dozens of people packed a small courtroom on the eighth floor of the courthouse in downtown Tucson. In his orange prison uniform, Jones turned and smiled at his family and friends. Brandie, his daughter, blew him a kiss and cracked a joke about his thinning hair. Her dad looked happy, she said. Everyone seemed to know it was real this time.

Still, it was impossible not to be anxious. Sandman had felt like he was walking a tightrope for months. It wasn’t until the week of the hearing that he finally felt “99.9 percent sure” the judge would sign the order. Sitting in a row behind him was Sowards, the retired investigator, whose anxiety shot up as soon as the judge started talking. When Bryson said he was taking up Jones’s “potential change in plea and sentencing,” all Sowards could hear was the word “potential” ringing in his ears.

“I can’t give him back the 30 years that was taken from him. But I hope he can make the best of his freedom.”

Before the judge signed the order, a victim’s advocate approached the podium to share a statement from Rachel’s sister Becky. She was 10 years old when Jones was accused of killing her sister and testified against him at trial. I never managed to reach Becky, but in 2022 she was contacted by producers with the true-crime podcast “Conviction,” who made a two-part series about Jones’s case based on my reporting. It was then that Becky learned of the evidence that had emerged after Jones was sent to death row. By the end of her statement, several people in the courtroom were wiping away tears, including Jones.

“Your honor, I have spent the better part of almost 30 years hating the defendant for what happened to my sister Rachel,” the statement began. Although Becky had forgiven Jones for what she thought he’d done, she was shocked to learn about the Supreme Court’s decision in his case, which came down on her birthday. She no longer believed he was a murderer. In fact, she wished he could be released with no strings attached. “I can’t give him back the 30 years that was taken from him. But I hope he can make the best of his freedom.”

Barry Jones, left, and his lead attorney, Cary Sandman, pose for a portrait in Tucson, Ariz., on June 15, 2023.

Photo: Molly Peters for The Intercept

Free Bird

By the end of the day, Jones was settled into a rental unit overlooking a pool near the University of Arizona. Sowards had arranged for Jones to stay there for the next two weeks, and the fridge was stocked with food: burger patties, bottles of Pepsi, and ice cream. A jar of candy sat on the counter next to a Keurig coffee pot. Jones had never seen anything like it.

Schneider, the paralegal, had gotten Jones a flip phone, filling it with contacts. They discussed email and Wi-Fi — technology that he would learn to use. But there were so many other things to take in, the kinds of things that others take for granted. At the lawyers’ office, he’d walked by a bathroom and stared for a moment. He hadn’t seen a porcelain toilet in almost 30 years.

When we first spoke in 2017, Jones told me how nervous he felt contemplating life on the outside. Now, he said, “I just wanna be your average Joe.” He was immensely grateful for his legal team, who treated him like family. Sowards had posted a GoFundMe to help with housing and other basic needs. There were plans to take him shopping, out to eat, and to get him a state ID. One of his former attorneys was even planning to stay at the apartment with him that night, just to make sure he was OK. Still, Jones admitted, “I’m worried about most everything.”

Standing by the pool as the evening wore down, Jones joked that he would have to learn the names of all his grandchildren. It was hard not to think about the horror of what he’d been accused of and how unfathomable it seemed. Since 1994, family and friends had always said Jones would never hurt a child. Now the rest of the world could see what they knew to be true. Jones smiled as his granddaughter splashed around. “It does my heart good to see that,” he said.

The post After 29 Years on Death Row, Barry Jones Was Dumped at a Bus Station. But He Was Finally Free. appeared first on The Intercept.

Dangerous Pathogens and Cruelty Law Violations at Perdue Subsidiary, Animal Rights Report Alleges

Natasha Lennard — Tue, 13 Jun 2023 15:46:18 +0000

Photo: Courtesy of Direct Action Everywhere (DxE)

Hours before dawn on Tuesday, eight animal liberation activists entered the Petaluma Poultry slaughterhouse facility in Sonoma County, California, disguised as workers, with the aim of rescuing as many chickens as possible.

Meanwhile, approximately 175 protesters gathered outside the property, where up to 49,000 chickens are killed every day, and where animal rights activists allege animal abuses and risks to public health are rampant. Some of the demonstrators joined those who had entered the property to assist in the planned “open rescue” action: a tactic by which activists publicly remove ailing animals from factory farms and bring them to animal sanctuaries, while highlighting the harms of the meat and animal products industry.

By 3 a.m. PT, as partly captured in a video shared exclusively with The Intercept, activists had removed 11 chickens from trucks that had transported thousands of chickens onto the slaughterhouse property, packed together as tightly as physically possible. Seven more birds were rescued soon after from a truck on its way to the facility.

Tuesday’s rescue and demonstration, organized by activists affiliated with animal rights group Direct Action Everywhere, or DxE, coincided with the release of a report from the group Tuesday morning. Shared with The Intercept and disseminated to regulatory agencies, the report alleges that Petaluma Poultry, a subsidiary of agribusiness giant Perdue Farms, is routinely violating animal cruelty laws and exposing the public to major health risks — including the possibility of future zoonotic disease pandemics — through brutal and negligent treatment of birds marketed as “free range” and “organic.”

The new report is based on undercover investigations at the slaughterhouse and a half dozen of Petaluma’s supplier farms, including whistleblower reports, firsthand observations, and hidden camera footage, alongside findings from veterinary medicine experts and infectious disease specialists who carried out fecal tests and examined animals — some sick, some already dead — brought to them from Petaluma facilities by DxE activists. (Petaluma Poultry and Perdue Farms did not immediately respond to The Intercept’s requests for comment on Tuesday morning’s report release and rescue.)

The very same animals that are cheerily packaged and sold in grocery stores nationwide under the personalizing brand names “Rocky” and “Rosie” — “Rosie” was the first chicken line in the United States to carry a certified organic label — are processed in a slaughterhouse where undercover investigator Raven Deerbrook said she found animals that were tortured and sick and where workers labored in dangerous conditions.

A dead chicken lies on a dirt covered shelf in 2023.

Photo: Courtesy of Direct Action Everywhere (DxE)

Deerbrook’s account and materials formed the basis of parts of the new DxE report, which the group sent to local, state, and federal authorities to request official investigations. DxE sent its report to USDA Farm Service Agency California Executive Director Blong Xiong; California Gov. Gavin Newsom and Attorney General Rob Bonta; Sonoma County Animal Services, District Attorney Carla Rodriguez, Sheriff Eddie Engram, and Administrator Christina Rivera; and a host of other officials and agencies from nearby counties.

“Hundreds are discovered to be so diseased that they are condemned after being slaughtered.”

“I am seeing sick birds being crowded onto trucks by the thousands. Dozens are dying on the way to the slaughterhouse,” Deerbrook, who entered the slaughterhouse undetected in a worker’s uniform, photographed internal documents, and set up hidden cameras, alleged over Signal message. “Hundreds are discovered to be so diseased that they are condemned after being slaughtered.”

Deerbrook, who worked for months gathering materials for the DxE report, said that she saw chickens injured while being hung on the slaughter line; she photographed company reports about bruised birds, which is a sign of abuse; she saw evidence of birds missing the “stun bath”: an electrical water bath in which birds’ heads are dipped to stun them unconscious before slaughter. She added that she saw “birds trying to escape and being cut-into while they were conscious, and I see evidence of them being boiled alive.” She also charged that she saw workers performing “one of the most dangerous tasks (live hanging) in pitch darkness, and many are suffering with pain and injuries.”

None of the local, state, and federal officials and agencies that received the report responded immediately to The Intercept’s request for comment.

Over 1,000 animals were “condemned” — disqualified from the food supply — on a single day in April 2023 after being slaughtered, according to documents from the slaughterhouse obtained by Deerbrook over a three-month period. Hundreds of them were condemned due to septicaemia, a form of bacterial blood poisoning, and toxemia. The investigation included lab reports from veterinarians that found dangerous pathogens in several birds. The slaughterhouse was also found to have unusually high rates of salmonella and campylobacter, two bacteria that cause widespread illnesses in humans, according to a local press report citing government data.

While Covid-19 was not transmitted to humans through factory farming, the deadliest pandemic in U.S. history should have prompted a reckoning over how we think about zoonotic disease spread and the undeniable future pandemic risks of intensive animal produce industry. Like so many ostensible pandemic reckonings, the dangerously concentrated — not to mention torturous — mass production of meat and animal products continues unfettered.

“Direct Action Everywhere (DxE) investigators made repeated visits to six Petaluma Poultry-supplying factory farms in Northern California,” the report says. “They documented routine violations of California’s animal cruelty laws, including birds collapsed on the floor or stuck on their backs and unable to walk to food or water, left to slowly starve to death, as well as infectious diseases that threaten public health. Yet, despite dozens of reports to county and state authorities, the government still refuses to hold the company accountable.”

Current felony defendant Rachel Ziegler holds a bird removed from a barn at McCoy’s Poultry on Sept. 29, 2018.

Photo: Courtesy of Direct Action Everywhere (DxE)

DxE has been making allegations about cruelty and neglect at Petaluma Poultry since at least 2018, when, following investigations into widespread animal cruelty at its facilities, the animal rights group’s activists carried out a previous mass rescue action at Petaluma supplier, McCoy’s Poultry. After examining birds retrieved from the farm, Sonoma County’s own Animal Services Department referred McCoy’s to the sheriff’s office as a suspect in an animal cruelty case. The facility was shuttered, but no such charges materialized.

Meanwhile, 58 activists were arrested on felony charges for their involvement in the attempted rescue that drew attention to these systematic abuses. Many of these cases have since been dropped or resolved through diversions or plea deals. Four people involved in nonviolent protest actions against factory farms are currently still facing criminal charges in Sonoma County, including a total of 12 felony charges.

“The diseases and bacteria that we found are pretty shocking.”

“Following the 2018 rescue effort at McCoy’s Poultry, that facility closed down, but the cruelty we found there was not an isolated incident,” said Zoe Rosenberg, a DxE activist who participated in Tuesday’s rescue effort. “We have continued to investigate Petaluma Poultry farms across Northern California and we have repeatedly found sick, injured, collapsed, and starving animals.”

Rosenberg said that “the diseases and bacteria that we found are pretty shocking.” The pathogen Clostridium perfringens, which was found in the necropsy report carried out by the California Animal Health and Food Safety Lab at the University of California, Davis of a chicken from the farm, according to the DxE report, can cause necrotic enteritis in humans: a bowel disease that kills up to 50 percent of humans who contract it and is responsible for 8 percent neonatal intensive care unit admissions. “This industry is hurting all of us, especially those who are immunocompromised like I am,” Rosenberg, who has a chronic illness, told me.

“75% of new or emerging infectious diseases in humans come from animals,” the DxE report says. “We see the perfect breeding ground for such new diseases to emerge in the filthy, crowded, and disease-ridden conditions at Petaluma Poultry factory farms, particularly given the company’s inability to keep these diseases out of the slaughterhouse and the food supply.”

Police were called to the Petaluma Poultry slaughterhouse in response to Tuesday’s action, but all the activists on the property had left with the rescued chickens by the time cops entered the facility. None of the rescue participants on Tuesday morning have been arrested at the time of writing.

Previous rescues have led to numerous arrests and charges, but DxE has a strong record when it comes to winning cases in court. In March, two DxE activists, Alicia Santurio and Alexandra Paul, were acquitted in California of theft charges over the rescue of two chickens from Foster Farms.

Paul’s attorney and DxE co-founder Wayne Hsiung, who has himself successfully defeated felony charges for previous animal rescues, said in a statement that the jury decision in the Foster Farms case “should be a clarion call for animal-abusing corporations that if you are going to hurt animals, people will intervene and stop you, and they will be defended by our community and by American citizens.” DxE members have been consistently willing to see their cases go to court, risking years in prison to establish legal precedents for the “right to rescue.”

Legal scholars have also argued that a so-called necessity defense, which in certain circumstances would allow for a person to, for example, break into a stranger’s car with legal justification to save a suffocating dog, could apply in cases like DxE’s. For the animal rescuers, the logic is the same, with the only difference lying in the power of the agriculture industry. Rosenberg, the participant in Tuesday’s action, told me that she believes a necessity defense could apply in these cases. (Up until now, acquittals in DxE cases have not relied on a necessity defense, so the precedent remains unestablished.)

“We believe the necessity defense does apply to animals. And we’ve been advised on that by a lawyer, who also believes the necessity defense does apply in this situation,” Rosenberg told me. “While what we are doing is right, there might be repercussions because unfortunately Petaluma Poultry has great sway in Sonoma County.”

DxE’s investigation makes explicit the all-too-cozy relationship between the Sonoma County sheriff, prosecutors, and major agribusiness in the area. In recent years, the Sonoma County Farm Bureau hosted an event on how the farming companies can “prepare for and manage activists.” An assistant sheriff was slated to give a presentation.

“They might try to prosecute people, they might try to put us in prison just for helping animals,” Rosenberg said. “But we completely believe in what we’re doing and we hope that other people will, too.”

Correction: June 13, 2023, 12:15 p.m. ET
This story has been updated to correct the number of chickens removed by activists from the trucks. They removed 11, not 10.

The post Dangerous Pathogens and Cruelty Law Violations at Perdue Subsidiary, Animal Rights Report Alleges appeared first on The Intercept.

The Feds Have Thousands of Stadium Lights on the Border. Switching Them On Would Devastate Desert Ecosystems.

Ryan Devereaux — Wed, 07 Jun 2023 18:52:44 +0000

The tallest panels of border wall between the U.S. and Mexico stand about three stories high. On the ground, the partitions have a long and troubled record of blocking natural waterways and severing wildlife migration corridors, but the environmental impacts don’t stop there.

When the sun goes down, the wall’s ecological footprint expands up and out, with lights reaching into the sky and illuminating cross-border habitats. Most of that illumination is concentrated near population centers and ports of entry, but with the flip of a switch, that could easily change.

According to a new survey, federal contractors have placed nearly 2,000 stadium-style lights in southern Arizona alone in recent years, imperiling some of the most ecologically complex and celebrated public lands in the United States.

In a report published Tuesday, the Center for Biological Diversity, an Arizona-based environmental organization, revealed the placement of more than 1,800 lights on federal land in the Sonoran Desert between 2019 and 2021, including wildlife preserves that are home to at least 16 threatened or endangered species. The new lights are not yet in use, and according to the report’s authors, they never should be.

“The scientific record clearly shows that artificial light at night can have costly, even deadly effects on a wide variety of species including amphibians, reptiles, birds, mammals, insects and plants,” the group said. “High-intensity lighting in these priority conservation areas would be devastating to the rich biodiversity of southern Arizona and northern Sonora, Mexico.”

The Center for Biological Diversity documented the placement of lighting in several of the most famed ecosystems of the American Southwest, including the Cabeza Prieta National Wildlife Refuge, Organ Pipe Cactus National Monument, the San Pedro Riparian National Conservation Area, and the San Bernardino National Wildlife Refuge.

Together, the four parcels provide a habitat for hundreds of species of birds and an astonishing number of ecosystem-sustaining insects, while also featuring some of the only U.S.-Mexico jaguar migration corridors on the planet, all of which depend on dark skies to survive and thrive.

“The entire purpose of the wildlife refuges where these lights are is contradicted by the actions of CBP.”

The Center for Biological Diversity’s findings mark the latest example of the mission of the Department of Homeland Security — especially Customs and Border Protection — colliding with that of federal agencies mandated to protect public lands and wildlife. Those collisions have been particularly acute in Arizona, where CBP has blown apart national monuments and wildlife refuges and desecrated sacred Native American heritage sites to make way for wall construction.

“The entire purpose of the wildlife refuges where these lights are is contradicted by the actions of CBP,” Russ McSpadden, the Center for Biological Diversity’s borderlands advocate and lead author of the report, told The Intercept. “It’s outrageous that they built these. These are some of the most important conservation lands in North America.”

A map of the border wall lighting infrastructure at Organ Pipe Cactus National Monument, San Pedro River National Conservation Area, Cabeza Prieta National Wildlife Refuge, San Bernardino Valley, and San Bernardino National Wildlife Refuge.

Image: Curt Bradley/Center for Biological Diversity

The expansion of Arizona’s border wall lighting began in 2019 under former President Donald Trump. The additions created a major hurdle for officials at the Organ Pipe Cactus National Monument, who were in the middle of applying for certification with the International Dark-Sky Association for recognition of the monument’s unique lack of light of pollution.

Monument Superintendent Scott Stonum, in a statement to Arizona Luminaria, a Tucson-based news outlet, said the National Park Service “provided comments at the request of CBP concerning potential impacts and suggested mitigations” at the time of the expansion. The service’s “concerns included potential impacts to natural and cultural resources: disturbance of archeological sites, disruption of wildlife corridors, wilderness values, scenic vistas, night-sky, and others.”

In a call with reporters last year, CBP officials outlined a series of construction projects related to the border wall, from repairing gates and roads to filling gaps. New lighting was not included in the contracts for the “remediation” work, officials said in September, adding that the agency was “currently evaluating the operational requirements for lighting across the southwest border” and “looking at the technology available that may help reduce the need for light.”

Whether CBP’s position holds 10 months later is unclear; the agency did not respond to a request for comment by publication. The Center for Biological Diversity’s report, however, shows that whether new lighting goes up or not, the infrastructure is already in place in southern Arizona to do significant environmental harm.

“If they ever switch the lights on, you’d be able to see this huge linear line of lights from space.”

The group’s investigation began after McSpadden called several of Arizona’s federal land management offices and learned that they had no idea how many lights CBP had placed in their jurisdictions. He began making trips to the border and counting lights on the wall, then cross-checked those counts with public records requests and follow-up calls with federal officials.

“The biodiversity in these regions is off the hook and they built it right across federally designated critical habitat, habitat for at least 16 endangered species,” McSpadden said. “If they ever switch the lights on, you’d be able to see this huge linear line of lights from space.”

Flood lights illuminate the U.S. border fence with Mexico at dusk near Nogales, Ariz., on June 22, 2011.

Photo: John Moore/Getty Images

Contrary to the desolate desert images of the popular imagination, the ecosystems of southern Arizona are among the most vibrant on the planet.

“Half of all breeding bird species in North America are known to use the San Pedro River corridor,” the Center for Biological Diversity noted, “along with 82 species of mammals and 43 species of reptiles and amphibians.”

A single game camera along the river documented more than 1,100 instances of wildlife crossing through the borderlands in a three-year period. The travelers included badgers, bobcats, javelina, mountain lions, raccoons, and multiple species of skunk and deer.

Additionally, the report added, “the borderlands between Arizona and Sonora, Mexico, contain some of the highest diversity of insects in the world.” According to one study cited by the group, “the highest diversity of bee species anywhere on Earth exists within just six square miles of San Bernardino Valley, including the San Bernardino National Wildlife Refuge.”

“Turning on the existing border lighting infrastructure at Organ Pipe and Cabeza Prieta would be devastating for lesser long-nosed bats.”

The insects provide food for the area’s world-famous bird and bat populations. Lesser long-nosed bats in particular, which migrate by the thousands over the border wall each summer, are key pollinators for Arizona’s iconic saguaro cacti. They are also prone to significant behavioral disruptions when confronted with giant beams of light.

“Turning on the existing border lighting infrastructure at Organ Pipe and Cabeza Prieta would be devastating for lesser long-nosed bats, shooting a massive wall of light into the sky stretching dozens of miles,” the Center for Biological Diversity reported.

The danger was one of many cited in the report. Others manifested in aquatic habitats, such as the famed Quitobaquito Springs on Organ Pipe, where threatened and endangered species like the Sonoyta turtle and the Quitobaquito pupfish are barely clinging to existence.

The impacts on the desert’s smallest creatures would have cascading effects on the ecosystem’s largest and most iconic animals, the report added, including endangered populations of jaguar and ocelot that still roam the borderlands: “Exposure to artificial lighting has been demonstrated to substantially change behavior patterns of rodents and prey species, thereby altering predator-prey relationships and diminishing hunting opportunities for carnivores.”

Lighting up the borderlands “would worsen the already devastating harm caused by border walls,” the report argued, “further altering behavior patterns and degrading habitat.”

The post The Feds Have Thousands of Stadium Lights on the Border. Switching Them On Would Devastate Desert Ecosystems. appeared first on The Intercept.

DHS Intel Report on Cop City Protesters Cribbed Far-Right Activist Andy Ngo

Ken Klippenstein — Mon, 05 Jun 2023 22:56:12 +0000

A Department of Homeland Security agency’s intelligence report about the Atlanta protest movement “Stop Cop City” lifted a sentence nearly verbatim from an article published on a far-right news website a day earlier.

The December 16, 2022, report from the Cybersecurity and Infrastructure Security Agency’s Office for Bombing Prevention describes protesters opposed to razing a forest for a massive new police facility as “militants” comprising a “violent far-left occupation” — phrasings identical to an article written by right-wing provocateur Andy Ngo.

“Five militants, part of the violent far-left occupation, were arrested and charged with domestic terrorism and other felony charges,” said the CISA report, referring to protests against the construction of the police facility, dubbed “Cop City” by its opponents.

A day earlier, the Post Millennial, a conservative news outlet founded by Ngo that has faced criticism for its partisan bent and misleading stories on subjects like Covid-19, ran a story with the same sentence, with small cosmetic changes. “Five militants part of a violent far-left occupation in south Atlanta were arrested on Tuesday and charged with domestic terrorism and other felony charges,” Ngo’s original reads. (Neither CISA nor Ngo immediately responded to a request for comment.)

After publication of this story, DHS blocked public access to the intelligence report.

The DHS report came a month before one protester encamped at the proposed Cop City site was killed in a hail of police gunfire — a massive escalation in what has become an ongoing crackdown against the movement.

The term “militants” used by federal agents in December reflects the escalation: a catchall for targets of the U.S.’s so-called global war on terror, the buzzword not typically used to describe domestic actors. That it has filtered into DHS reporting on protest movements is reflective of the new focus on domestic terrorism, particularly after the January 6 attack on the U.S. Capitol.

In March, prosecutors began hitting anti-Cop City protesters with domestic terrorism charges for alleged attacks with rocks and Molotov cocktails. Since then, the trend of terror allegations has continued, ensnaring a growing group of actors in the movement, with more than 40 now facing terror charges. When administrators of a bail fund for protesters were charged with money laundering last week, Republican Georgia Gov. Brian Kemp said they had “facilitated and encouraged domestic terrorism.”

“The nature of the law enforcement response to the Stop Cop City protests, and the prosecutions of protesters and their supporters highlights how broad domestic terrorism laws are used as a political cudgel rather than a mechanism to improve public safety,” Mike German, a former FBI special agent and fellow with the Brennan Center for Justice, told The Intercept.

The CISA report was posted to the Technical Resource for Incident Prevention, or TRIPwire, a resource sharing portal for “expert intelligence analysis” in order to raise “awareness of evolving Improvised Explosive Device (IED) tactics,” according to its website. In March, activists involved in the movement were accused of using Molotov cocktails — which are not listed in a DHS document defining the term — but there does not appear to be any record of IED allegations before the December CISA report.

On Monday, Atlanta City Council will vote on the budget for the Atlanta Public Safety Training Center, the law enforcement training facility at the center of the controversy. The facility is expected to take up over 85 acres, replete with a mock city for “urban police training.” Cop City, expected to cost $90 million, was announced in 2021 by then-Atlanta Mayor Keisha Lance Bottoms. Since then, protesters have taken up camp in the forest where the facility would be built, in an effort to block its construction.

On March 5, following the alleged Molotov attack against police, Georgia authorities charged 23 protesters with domestic terrorism. The terror enhancement of the charges have prompted criticism from civil liberties groups.

“Unfortunately, we have seen law enforcement across the country treating environmental activists and racial justice protesters as terrorists, despite the lack of deadly violence associated with this activism,” said German.

The focus on domestic terrorism has been shared by leaders of both parties. In 2020, then-President Donald Trump vowed to designate “antifa” as a terrorist organization. President Joe Biden, in his first full day in office, directed his national security team to conduct a 100-day, comprehensive review of U.S. government efforts to address domestic terrorism — described by the White House as “the most urgent terrorism threat the United States faces today.”

Since then, charges against participants in the January 6 attack have caused domestic terror prosecutions to increase sharply.

“Unfortunately, we have seen law enforcement across the country treating environmental activists and racial justice protesters as terrorists, despite the lack of deadly violence associated with this activism.”

In 2022, House Democrats passed a bill, the Domestic Terrorism Prevention Act, which would have created new offices designed to focus on domestic terrorism specifically, in DHS, the FBI, and the Justice Department. By a vote of 47-47, Senate Republicans blocked the legislation.

The Atlanta protesters are being prosecuted under the same domestic terrorism law that was expanded after Dylann Roof murdered nine Black parishioners at a church in Charleston, South Carolina. While the law originally only applied to criminal acts intended to kill at least 10 people, the Georgia legislature expanded the law to include property crimes intending to intimidate or coerce the government — of which the Atlanta protesters stand accused.

As for the CISA report, though it cribbed Any Ngo, German said it made for a limited resource because of the complete lack of citations.

“This type of intelligence reporting is of dubious utility because it doesn’t contain enough detail for law enforcement to assess the credibility of the information provided so they can develop a proper response,” German told The Intercept. “It includes no citations so it doesn’t even provide an avenue for law enforcement to follow up for more information or link events to understand a larger pattern.”

German added, “There doesn’t appear to be any attempt to put these three events in context so police officials could determine whether the events are part of some larger issue of law enforcement concern.”

Update: June 6, 2023
This story has been updated to include a PDF version of the Cybersecurity and Infrastructure Security Agency intelligence report. After publication of this story, the Department of Homeland Security blocked access to the report in its public-facing document portal.

The post DHS Intel Report on Cop City Protesters Cribbed Far-Right Activist Andy Ngo appeared first on The Intercept.

Atlanta Police Arrest Organizers of Bail Fund for Cop City Protesters

Natasha Lennard — Wed, 31 May 2023 20:56:00 +0000

This house in the Edgewood neighborhood is where police arrested three key organizers who have been aiding protesters against the city’s proposed police training center on May 31, 2023, in Atlanta.

Photo: Kate Brumback/AP

On Wednesday morning, a heavily armed Atlanta Police Department SWAT team raided a house in Atlanta and arrested three of its residents. Their crime? Organizing legal support and bail funds for protesters and activists who have faced indiscriminate arrest and overreaching charges in the struggle to stop the construction of a vast police training facility — dubbed Cop City — atop a forest in Atlanta.

In a joint operation with the Georgia Bureau of Investigation, or GBI, Atlanta cops charged Marlon Scott Kautz, Adele Maclean, and Savannah Patterson — all board members of the Atlanta Solidarity Fund — with “money laundering” and “charity fraud.”

The arrests are an unprecedented attack on bail funds and legal support organizations, a long-standing facet of social justice movements, according to Lauren Regan, executive director of the Civil Liberties Defense Center.

“This is the first bail fund to be attacked in this way,” Regan, whose organization has worked to ensure legal support for people resisting Cop City, told me. “And there is absolutely not a scintilla of fact or evidence that anything illegal has ever transpired with regard to Atlanta fundraising for bail support.”

While the Atlanta Solidarity Fund has been a crucial resource for activists facing harsh repression for their involvement in Stop Cop City, the nonprofit predates the movement and has been providing bail funds, jail support, and assistance with legal representation for Atlanta activists since the 2020 Black liberation uprisings.

The fund, a project of the registered nonprofit Network for Strong Communities, has also provided grants to support an array of anti-repression work in Atlanta, including to groups working with unhoused trans youth, Black worker-owned cooperatives, and abolitionist community builders.

“Providing mutual aid to people exercising their constitutionally protected rights to protest and dissent is not a crime.”

“What happened this morning is a terrifying escalation by the state, and a chillingly direct attack on the First Amendment. This is fascist political repression,” Hannah Riley, an Atlanta-based organizer, told me. “Providing mutual aid to people exercising their constitutionally protected rights to protest and dissent is not a crime.”

A public statement from the GBI said that “[a]gents and officers executed a search warrant and found evidence linking the three suspects to the financial crimes.” The warrants for all three arrestees cite “records and reports of certain currency transactions” and “fraudulent, misrepresenting, or misleading activities regarding charitable solitations.” (“Solitations” is, of course, not a word, but the apparent misspelling of the word “solicitations” appears on all three arrestees’ warrants.)

A more detailed arrest warrant for Patterson notes that the alleged “money laundering” charge relates to reimbursements made from the nonprofit to Patterson’s personal PayPal account for minor expenses including “gasoline, forest clean-up, totes, covid rapid tests, media, yard signs and other miscellaneous expenses.” Targeting the organizers with a militarized SWAT raid based on such expenditures only clarifies the desperation of law enforcement agencies in going after the movement.

According to the GBI statement, “All three charged will be booked into a local jail and will have a bond hearing scheduled soon.”

Wednesday’s arrests are just the latest in extreme law enforcement persecution of the popular Stop Cop City movement. A total of 42 activists are currently facing state domestic terror charges on the flimsiest of police claims, while three others face hefty felony intimidation charges for distributing flyers that named a police officer connected to the brutal police killing of 26-year-old forest defender Manuel “Tortuguita” Terán.

Kautz, one of the Atlanta Solidarity Fund organizers arrested on Wednesday, had previously shared numerous reflections with The Intercept on the Atlanta cops’ extreme repressive tactics. He noted that the indiscriminate arrests and use of state domestic terrorism charges against protesters represented “an unprecedented level of repression” and a “strategy of blatant malicious prosecution.”

It is a vile irony that for his own role in legal support work and rightful criticism of police violence, Kautz is now part of this same pattern of apparent prosecutorial abuse.

In targeting the Atlanta Solidarity Fund, police and prosecutors are attempting to further the groundless narrative that the multifaceted movement against Cop City is a “criminal organization,” enabling profoundly unconstitutional arrests based on no more than association with a resilient anti-racist, environmentalist movement.

Politicians keen to see Cop City built in Atlanta have doubled down on the pernicious line, none more so than Georgia’s Republican Gov. Brian Kemp. “These criminals facilitated and encouraged domestic terrorism,” said Kemp in a statement responding to Wednesday’s arrests, despite the fact that no one has been convicted in the weak domestic terrorism cases.

Organizing bail funds and legal support for protesters facing charges, however serious, is a decades-old social justice movement practice. As the Atlanta Community Press Collective noted on Twitter, “When Dr. King was held in Birmingham Jail, churches and community groups including the NAACP came together to fund his $4000 bail – the equivalent of $39,000 today.”

Like the overreaching domestic terrorism charges, if any established legal standards and precedents are upheld in these cases, no financial crimes or money-laundering charges will stick. Yet even unsuccessful malicious prosecutions exact a painful toll on movements, especially when a resource hub like the Atlanta Solidarity Fund is targeted.

“They are trying to drain our morale and trying to drain our resources. These arrests send a message.”

“They are trying to drain our morale and trying to drain our resources,” another person associated with the fund told me, withholding their name for fear of police persecution following their associates’ arrests. “These arrests send a message that if you run a nonprofit that they find to be at odds with their colonial project, they will target you.”

The charges indeed risk setting a dangerous precedent in criminalizing bail funds and legal support networks. “Bailing out protestors who exercise their constitutionally protected rights is simply not a crime. In fact, it is a historically grounded tradition in the very same social and political movements that the city of Atlanta prides itself on,” said Regan, the attorney, in a separate press statement. “Someone had to bail out civil rights activists in the 60’s–I think we can all agree that community support isn’t a crime.”

Wednesday’s arrests come just days after it was revealed by reporters that Atlanta officials have known for some time that the cost of building Cop City to the city of Atlanta would amount to at least $51 million in public funds, instead of the $30 million that city officials promised since 2021.

Local opposition to the project has been strong, with hundreds of people attending a recent city council meeting to speak out against Cop City during a public hearing. The city council will vote on whether to approve the growing cost of the vast militarized policing facility on June 5. “The charges against organizers of the Atlanta Solidarity Fund come as the public becomes increasingly aware of the corporate funding and interests backing the Cop City project and the Atlanta Police Foundation non-profit,” Nora Scholl from the Atlanta Community Press Collective told me. “Law enforcement agencies are using force and imprisonment against protestors to buffer them from widespread opposition to the project.”

The post Atlanta Police Arrest Organizers of Bail Fund for Cop City Protesters appeared first on The Intercept.

Pipeline Company Spent Big on Police Gear to Use Against Standing Rock Protesters

Alleen Brown — Mon, 22 May 2023 10:45:00 +0000

Their protest encampment razed, the Indigenous-led environmental movement at North Dakota’s Standing Rock reservation was searching for a new tactic. By March 2017, the fight over the construction of the Dakota Access pipeline had been underway for months. Leaders of the movement to defend Indigenous rights on the land — and its waterways — had a new aim: to march on Washington.

Native leaders and activists, calling themselves water protectors, wanted to show the newly elected President Donald Trump that they would continue to fight for their treaty rights to lands including the pipeline route. The march would be called “Native Nations Rise.”

Law enforcement was getting ready too — and discussing plans with Energy Transfer, the parent company of the Dakota Access pipeline. Throughout much of the uprising against the pipeline, the National Sheriffs’ Association talked routinely with TigerSwan, Energy Transfer’s lead security firm on the project, working hand in hand to craft pro-pipeline messaging. A top official with the sheriffs’ PR contractor, Off the Record Strategies, floated a plan to TigerSwan’s lead propagandist, a man named Robert Rice.

An email from Off the Record Strategies, working for the National Sheriffs’ Association to plan information operations to influence the narrative around the Dakota Access pipeline.

Public record via the North Dakota Private Investigation and Security Board

“Thoughts on a crew or a news reporter — or someone pretending to be — with a camera and microphone to report from the main rally on the Friday, ask questions about pipeline and slice together [sic]?” Off the Record CEO Mark Pfeifle suggested over email.

A security firm led by a former member of the U.S. military’s shadowy Special Forces, TigerSwan was no stranger to such deception. The company had, in fact, used fake reporters before — including Rice himself — to spread its message and to spy on pipeline opponents. The National Sheriffs’ Association’s involvement in advocating for a similar disinformation campaign against the anti-pipeline movement has not been previously reported.

The email from the National Sheriffs’ Association PR shop was among the more than 55,000 internal TigerSwan documents obtained by The Intercept and Grist through a public records request. The documents, released by the North Dakota Private Investigation and Security Board, reveal how TigerSwan and the sheriffs’ group worked together to twist the story in the media so that it aligned with the oil company’s interests, seeking to pollute the public’s perception of the water protectors.

The documents also outline details of previously unreported collaborations on the ground between TigerSwan and police forces. During the uprising at Standing Rock, TigerSwan provided law enforcement support with helicopter flights, medics, and security guards. The private security firm pushed for the purchase, by Energy Transfer, of hundreds of thousands of dollars worth of radios for the cops. TigerSwan also placed an order for a catalog of so-called less-lethal weapons for police use, including tear gas. The security contractor even planned to facilitate an exchange where Energy Transfer and police could share purported evidence of illegal activity.

Meanwhile, communications firms working for Energy Transfer and the National Sheriffs’ Association worked together to write newsletters, plant pro-pipeline articles in the media, and circulate “wanted”-style posters of particular protesters, the documents show. And the heads of both the National Sheriffs’ Association and TigerSwan engaged in discussions on strategy to counter the anti-pipeline movement, with propaganda becoming a priority for both the police and private security.

“It is extremely dangerous to have private interests dictating and coloring the flow of administrative justice,” said Chase Iron Eyes, director of the media organization Last Real Indians and a member of the Oceti Sakowin people. Iron Eyes was active at Standing Rock and mentioned in TigerSwan’s files. “We learned at Standing Rock, law and order serves capital and property.”

Sheriff Kyle Kirchmeier, whose jurisdiction in Morton County, North Dakota, abuts the Standing Rock reservation, said collaboration with pipeline security was limited. “We had a cooperation with them in reference to the pipeline workers’ safety while conducting their business,” he said in an email. “TigerSwan was not to be involved in any law enforcement detail.” (TigerSwan, Energy Transfer, and the National Sheriffs’ Association did not respond to requests for comment.)

Rice, the TigerSwan propagandist, had posed as a news anchor for anti-protester segments posted on a Facebook page he created to sway the local community against the Standing Rock protests. But when Pfeifle, the sheriff group’s PR man, suggested pretending to be a reporter at the Native Nations Rise protest, Rice was unavailable. (Off the Record did not respond to a request for comment.) Pfeifle found another way to tell the pipeline and police’s story: a far-right news website founded by former Fox News host Tucker Carlson. Pfeifle wrote to Rice: “We did get Daily Caller to cover event yesterday.”

Protesters shield their faces as a line of law enforcement officers holding large canisters with pepper spray shout orders to move back, in Morton County, N.D., on Oct. 27, 2016.

Photo: Mike McCleary/The Bismarck Tribune via AP

Law Enforcement Collaboration

The idea of working with police was baked into Energy Transfer’s arrangement with TigerSwan. The firm’s contract for the Dakota Access pipeline specifically assigned TigerSwan to “take the lead with various law enforcement agencies per state, county, state National Guard and the federal interagency if required.”

Cooperation between Energy Transfer’s security operation and law enforcement agencies, however, began even before TigerSwan arrived on the scene. A PowerPoint presentation from Silverton, another contractor hired by Energy Transfer, described its relationship with law enforcement as a “public private partnership.” The September 2016 presentation said that a private intelligence cell was “coordinating with LE” — law enforcement — “and helping develop Person of Interest packets specifically designed to aid in LE prosecution.”

Multiple documents make clear that part of the purpose of Energy Transfer’s intelligence collection was to support law enforcement prosecutions. A September 2016 document describing TigerSwan’s early priorities said, “Continue to collect information of an evidentiary level in order to further the DAPL Security effort and assist Law Enforcement with information to aid in prosecution.”

The collaboration extended to materiel. TigerSwan operatives realized soon after they arrived that local law enforcement officials lacked encrypted radios and could not communicate with state or municipal law enforcement agencies — or with Dakota Access pipeline security, according to emails. Energy Transfer purchased 100 radios, for $391,347, with plans to lease a number of them to law enforcement officers.

”We want them to go to LEO as a gift which represents DAPL’s concern for public safety,” wrote Tom Siguaw, a senior director at Energy Transfer, in an email.

During large protest events, TigerSwan and police worked together to keep water protectors from interfering with construction. On one day in late October 2016, the day of the protests’ largest mass arrest, Energy Transfer’s security personnel “held law enforcement’s east flank” and supported sheriffs’ deputies and National Guard members with seven medical personnel and two helicopters, named Valkyrie and Saber.

After the incident, TigerSwan planned to set up a shared drive, where law enforcement officials could upload crime reports and charging documents, and TigerSwan could share photographs and pipeline opponents’ social media. Documents show other instances in which TigerSwan set up online exchanges with law enforcement. In a February 2017 PowerPoint presentation, TigerSwan described plans to use another shared drive to post security personnel’s videos and photographs, taken both aerially and on the ground during a different mass arrest.

A diagram from TigerSwan showing the uses of a drive for law enforcement and Energy Transfer’s security operations to share purported evidence of illegal activity.

Public record via the North Dakota Private Investigation and Security Board

A Dakota Access Pipeline helicopter also supported law enforcement officials during one of the most notorious nights of the crackdown, in November 2016, when police unleashed water hoses on water protectors in below-freezing temperatures. By morning, police were in danger of running out of less-lethal weapons — which can still be deadly but are designed to incapacitate their targets. TigerSwan and Energy Transfer again stepped in.

TigerSwan founder James Reese, a former commander in the elite Army Special Operations unit Delta Force, reached out to a contact at the North Carolina State Highway Patrol. North Carolina had recently used TigerSwan’s GuardianAngel mapping tool to respond to uprisings in Charlotte, in the aftermath of the 2016 police killing of Keith Scott. (A spokesperson from the North Carolina Department of Public Safety said the agency does not currently have a relationship with TigerSwan.)

Reese sent a list of weaponry sought by North Dakota law enforcement to an officer from the Highway Patrol. The list included tear gas, pepper spray, bean bag rounds, and foam rounds. The official referred Reese to a contact at Safariland, which manufactures the gear.

“We will purchase the items, and gift them to LE,” Reese told the Safariland representative. “We need a nation wide push if you can help?”

Meanwhile, another TigerSwan team member sent the Minnesota-based police supply store Streicher’s an even longer list of less-lethal weapons and ammunition. “Please confirm availability of the following price and ship immediately with overnight delivery,” TigerSwan’s Phil Rehak wrote.

“I would be given an order by either somebody from TigerSwan or maybe even law enforcement, being like, ‘Hey, can you find these supplies?’”

Rehak told The Intercept and Grist that his job was to procure equipment — including for law enforcement. “I would be given an order by either somebody from TigerSwan or maybe even law enforcement, being like, ‘Hey, can you find these supplies?’” He said he doesn’t know if the less-lethal weaponry was ultimately delivered to the sheriffs.

“I am not aware of any radios for Morton County or any less lethal weapons from Tiger Swan,” Kirchmeier, the Morton County sheriff, told The Intercept and Grist in an email. “I dealt with ND DES for resources.” (Two other sheriffs involved with the multiagency law enforcement response did not answer requests for comment. Eric Jensen, a spokesperson for the North Dakota Department of Emergency Services, said the agency had no arrangement with TigerSwan or Energy Transfer to provide less-lethal weapons, and that they wouldn’t have knowledge of any arrangements between law enforcement and the companies.)

The “partnership” went both ways, with TigerSwan sometimes viewing law enforcement weapons as potential assets. In mid-October 2016, as senior Energy Transfer personnel prepared to join state officials for a government archeological survey to examine the pipeline route, three law enforcement “snipers” agreed to be on standby with an air team, according to a memo by another security company, RGT, that was working under TigerSwan’s management. A Predator drone was listed among “friendly assets” in the memo.

TigerSwan routinely shared what it learned about the protest movement with local police, but most of what the documents describe in the way of reciprocal sharing — from law enforcement to TigerSwan — came from the National Sheriffs’ Association.

In March 2017, the sheriffs’ group helped the South Dakota Legislature pass a law to prevent future Standing Rock-style pipeline uprisings, the documents say. To support the effort, the Morton County Sheriff’s Office sent along a “law enforcement sensitive” state operational update from the North Dakota State and Local Intelligence Center. National Sheriffs’ Association head Jonathan Thompson forwarded the document to TigerSwan executive Shawn Sweeney. Thompson recommended Sweeney look at the last page, which included a list of anti-pipeline camps across the U.S.

TigerSwan also recruited at least one law enforcement officer with whom it worked on the ground. In November 2016, Reese requested a phone call with Maj. Chad McGinty of the Ohio State Highway Patrol, who had acted as commander of a team from Ohio sent to assist police in North Dakota. By February 1, McGinty, who declined to comment for this story, was working for TigerSwan as a law enforcement liaison, earning more than $440 a day.

A protester is treated after being pepper sprayed by private security contractors on land being graded for the Dakota Access pipeline, near Cannon Ball, N.D., on Sept. 3, 2016.

Photo: Robyn Beck/AFP via Getty Images

Spreading Stories

TigerSwan’s contract also mandated that the firm help Energy Transfer with telling its story. The firm was expected “to help turn the page on the story that we are being overwhelmed with over the past few weeks,” according to a document from mid-September 2016.

Energy Transfer’s image was in trouble early on. Critical media coverage of Standing Rock grew dramatically in early September after private security guards hired by the company unleashed guard dogs on protesters. A flood of reporters arrived on the ground to cover the protests. Social media posts routinely went viral. The narrative that took hold portrayed the pipeline company as instigating violence against peaceful protesters.

Energy Transfer recruited third parties to spread its messaging and counter the unfavorable storyline. At least two additional contractors — DCI and MarketLeverage — joined TigerSwan in trying to burnish Energy Transfer’s image. TigerSwan recruited retired Maj. Gen. James “Spider” Marks, who led intelligence efforts for the Army during the U.S. invasion of Iraq in 2003 and served on TigerSwan’s advisory board, to write favorable op-eds and deliver commentary. (Marks did not respond to a request for comment.) With its veneer of law enforcement authority, the National Sheriffs’ Association would become Energy Transfer’s most powerful third-party voice.

Together, TigerSwan, the National Sheriffs’ Association, and the public relations contractors formed a powerful public relations machine, monitoring social media closely, convincing outside groups to promote pro-pipeline messaging, and planting stories.

Off the Record Strategies, the public relations firm working for the National Sheriffs’ Association, coordinated with the opposition research firm Delve to track activists’ social media pages, arrest records, and funding sources. The companies sought to paint the protesters as violent, professional, billionaire-funded, out-of-state agitators whose camps represented the true ecological disaster, as well as to identify movement infighting that might be exploited. Both companies were led by Bush administration alumni. (Delve did not respond to a request for comment.)

Framing water protectors as criminals was a key National Sheriffs’ Association strategy. ”Let’s start drumbeat of the worst of the worst this week?” Pfeifle, Off the Record’s CEO, suggested to the head of the sheriffs’ group in one email. “One or two a day? Move them out through social media…The out of state wife beaters, child abusers and thieves first… Mugshot, ND arrest date, rap sheet and other data wrapped in and easy to share?”

The result was “wanted”-style posters — called “Professional Protestors with Dangerous Criminal Histories” — featuring pipeline opponents’ photos and criminal records, which Pfeifle’s team circulated online and routinely shared with TigerSwan. The National Sheriffs’ Association repeatedly asked TigerSwan to help “move” its criminal record research on social media, and TigerSwan repurposed the sheriffs’ group arrest research for its own propaganda products.

Pfeifle also made summary statistics of protesters’ arrest records and a map of where they were from. The color-coded map came with a running tally of the number of protesters. The details collected by Pfeifle then began showing up in blogs and remarks by police to reporters. One piece by KXMB-TV, a television station in Bismarck, North Dakota, repeated almost verbatim statistics summarizing the number of protesters arrested and their criminal histories, noting that “just 8 percent are from North Dakota.”

“They make it harder for people to engage in peaceful protest. People are arrested and they say, ‘See, those people are criminals.’”

Naomi Oreskes, a science historian who has researched the fossil fuel industry’s communications strategies, said the attempt to frame environmental defenders as criminals was consistent with the long trend of attempts to discredit activists. However, it was also “particularly noxious,” she said, because the energy industry has pushed for stronger penalties against trespass and other anti-protest laws. “They make it harder for people to engage in peaceful protest,” said Oreskes. “People are arrested and they say, ‘See, those people are criminals.’”

DCI, which got its start “doing the dirty work of the tobacco industry” and helped found the tea party movement, was also a key player influencing media coverage, placing and distributing op-eds. In one exchange between DCI partner Megan Bloomgren, who would later become a top Trump administration official, and Reese, Bloomgren sent a list of 14 articles “we’ve placed that we’ve been pushing over social media.” The articles ranged from opinion pieces in support of the pipeline in local newspapers to posts on right-wing blogs.

Oreskes said using opinion articles in this way is a common strategy pioneered by the tobacco industry, among others. “You push that out into social media to make it seem as if there’s broad grassroots support for the pipeline,” said Oreskes. ”The reader doesn’t know that this is part of a coordinated strategy by the industry.”

MarketLeverage, another Energy Transfer contractor, also spent a considerable amount of its resources tracking social media and boosting pro-pipeline messages. In the weeks following the dog attacks, for instance, Shane Hackett, a top official with MarketLeverage, suggested highlighting a Facebook post by Archie Fool Bear, a Standing Rock tribal member who was critical of the NoDAPL movement. “We need to exploit that shit immediately while we have a chance,” a TigerSwan operative wrote in response to an email from their colleague Rice, the chief propagandist. (Neither DCI nor Market Leverage responded to requests for comment.)

Hackett suggested creating a graphic out of the tribal member’s post and having “other accounts share his post with the same hashtags.” Rice provided the social media text and hashtags, including, “Respected Tribe Members Call Attention to Standing Rock Leadership Lies and Failures #TribeLiesMatter #NoDAPL #SiouxTruth.” Obscure social media accounts then repeated the exact language.

“These people who are trained to use whatever publicity they can for their advantage, they’re going to do what they want anyway,” Fool Bear told The Intercept and Grist. “They don’t live in my shoes, and they don’t believe in what my beliefs are. If they’re going to take what I say and manipulate it, I can’t stop them.”

Protesters confront police guarding a bridge near Oceti Sakowin Camp on the edge of the Standing Rock Sioux reservation on Nov. 30, 2016, outside Cannon Ball, N.D.

Photo: Scott Olson/Getty Images

Sheriffs vs. Indigenous and Environmental Justice

Off the Record Strategies and the National Sheriffs’ Association didn’t just focus on issues of law-breaking. The association parroted some of the same messages that TigerSwan — as well as climate change deniers in Congress — were trafficking. Notable among them was a right-wing conspiracy theory that the environmental movement was “directed and controlled” by a club of billionaires.

The National Sheriffs’ Association also tried to undermine the credibility of well-known advocates Bill McKibben and Jane Kleeb, who founded the environmental organizations 350.org and Bold Alliance, respectively. Pfeifle circulated memos on the two movement leaders. “McKibben is a radical liberal determined to ‘bankrupt’ energy producers,” said one, adding, “McKibben will join any protest because he enjoys the fanfare.” Another memo said, “Kleeb admitted her pipeline opposition was about political organization and opportunity, not the environment.”

Kleeb and McKibben expressed bemusement at TigerSwan and the sheriffs’ association’s fixation on their work. “It’s all pretty creepy,” McKibben, a former Grist board member, said in an email. “I live in a county with a sheriff, and it seems okay if he tracks the speed of my car down Rte 116, but tracking every word I write seems like… not his job.”

The sheriffs’ group also listed the nonprofit organizations Center for Biological Diversity, Rainforest Action Network, and Food & Water Watch as “Extremist Environmental Groups” — a pejorative used by some authoritarian government officials, including from the Trump administration.

“Campaigning against corporations driving our climate crisis and human rights violations is not extremist,” said Rainforest Action Network Executive Director Ginger Cassady. Brett Hartl, government affairs director at the Center for Biological Diversity, said the association’s flyer contained “categorically false” information about the organization — a sentiment repeated by others mentioned throughout TigerSwan’s other records.

“We would urge the Sheriffs’ Association to focus on its own responsibilities instead of attempting to undermine well-meaning organizations like ours,” added Wenonah Hauter, Food & Water Watch’s executive director.

Both the National Sheriffs’ Association and TigerSwan took pride in meddling in tribal affairs. Reese enthusiastically encouraged his personnel to spread a story that the Prairie Knights Casino, run by the Standing Rock Sioux Tribe, was discharging sewage into the Missouri River watershed. Meanwhile, the sheriffs’ association worked with TigerSwan to push a story about a drop in revenue at the casino. In an email to TigerSwan’s Rice, Pfeifle noted that the issue had been raised at a recent Standing Rock tribal council meeting.

“We moved this story on front page of Sunday Bismarck Tribune and in SAB blog Friday, playing perfectly into the ‘get-out’ narrative going into next week,” Pfeifle wrote to Rice a few days later, referring to the conservative Say Anything Blog. “Please help echo and amplify, if possible.”

Using newsletters and news-like web sites to discredit pipeline opponents’ concerns as “fake news” was a top tactic for both TigerSwan and the National Sheriffs’ Association. The irony of the strategy was not lost on its protagonists.

Over WhatsApp, in June 2017, Rice, the propagandist, chatted with Wesley Fricks, TigerSwan’s director of external affairs, about a possible response to a Facebook video in which an unnamed reporter described recently published news reports on TigerSwan’s tactics. They would post it on one of the astroturf sites Rice created and describe it as “fake news.”

“That will cause a few people’s brains to explode,” Rice wrote in a WhatsApp message. “fake news calling fake news fake which is calling other news fake?”

Frick replied, “One big circle.”

The post Pipeline Company Spent Big on Police Gear to Use Against Standing Rock Protesters appeared first on The Intercept.

Profits Skyrocket for AI Gun Detection Used in Schools — Despite Dubious Results

Georgia Gee — Fri, 19 May 2023 14:00:00 +0000

“If you are serious about our systems, then let’s jump on a quick call this week,” Anthony Geraci, a sales representative of Evolv Technology, wrote in an email to New Mexico’s Clovis Municipal Schools last November. “This is not a pressure tactic.”

There was, however, pressure: If Clovis didn’t purchase the systems by the end of the year on a four-year agreement, Geraci explained, the prices would escalate. “We just want you to know this option exists and don’t want you upset when you hear that others have taken advantage of this option,” Geraci wrote.

The tactic eventually worked. It would be another high-priced sale for Evolv, a leading company in the world of weapons detection systems that use artificial intelligence.

Local media reported in March that Clovis bought the technology for $345,000, funded by the Federal CARES Act, a Covid-19 relief measure. Evolv, though, didn’t announce the sale until May 9 — timed so that the company could promote the purchase in its first-quarter earnings release.

Earlier in May, before the announcement, Evolv officials had asked Clovis if they could tout the sale in their earnings report, according to internal emails. And on May 10, Evolv named the purchase — alongside half a dozen other school districts — in a webcast.

Evolv, a publicly traded company, had much to brag about. Despite public reports on Evolv’s overpromises on efficiency and effectiveness for its technology, the company’s aggressive marketing to schools paid off: Evolv announced it had doubled its earnings compared to last year’s first quarter and saw its stock price rise 167 percent over the past year.

“The salespeople will use whatever leverage they have, and there is a real, genuine fear about weapons and shootings in America today,” said Andrew Guthrie Ferguson, a professor of law at American University and an expert on surveillance. “It plays right into the salesperson’s game plan to market fear as hard as they can.”

“It plays right into the salesperson’s game plan to market fear as hard as they can.”

Evolv has come under intense criticism for the faults in its technology, including incidents in which guns and knives bypassed the system in schools — with, in two cases, students being stabbed. Nonetheless, the company announced $18.6 million in total revenue for the first quarter of 2023, an increase of 113 percent compared to the first quarter last year, beating its prior estimates.

CEO Peter George also said Evolv would add at least one more school building daily in the next three months to its roster of clients.

“Weapons detection is not perfect, but it adds a layer of protection that can help deter, detect and mitigate risk,” said Dana Loof, Evolv’s chief marketing officer, in a statement to The Intercept. “We are a partner with our customers and work with them every step of the way towards helping to create a safer environment.”

With its star status and value rising, the company recently hired former Tesla product leader Parag Vaish as chief digital product officer.

“Just like digital advances can bring civilians to space, drive cars autonomously, and help address challenges in climate change,” George said, “developments and artificial intelligence can be applied to the gun violence epidemic gripping the country.”

Public records, obtained by research publication IPVM and shared with The Intercept, reveal the extent the company goes to persuade schools to buy, and advertise, its technology.

In internal emails to the Clovis school district, Evolv sent the school a plan recommending the use of conveyor belts alongside the AI system — offered as a means of efficiency, but in effect rendering Evolv’s technology an auxiliary for more traditional security procedures.

Evolv also sent the district marketing materials, including template letters to send to parents to notify them of the technology.

“One of the things we have seen in the past year is that customers who opt to not make an announcement are oftentimes subject to misinformation by local media and critics,” Beatriz Almeida, Evolv’s marketing director, wrote to Clovis, “and we like to get ahead of these potential situations by helping you craft the story and tell your side before any misconceptions can occur.” (The Clovis school district did not respond to a request for comment.)

Experts say that Evolv’s pressure on schools to correct the narrative could be harmful. “Labeling facts about Evolv’s detection capabilities as ‘misinformation’ distorts the public’s understanding of what Evolv can and cannot do,” said Don Maye, head of operations at IPVM.

Loof, from Evolv, said, “We strive to be transparent with our customers and security professionals about our technology’s capabilities and that our focus is on weapons that could cause mass casualty.”

Prior reports have illustrated how easily the Evolv alerts sound with metal objects, including misidentifying a lunch box for a bomb, but Clovis went ahead with the Evolv collaboration. And officials with the schools agreed to collaborate on the Evolv press release announcing the sale, according to internal emails.

“Evolv gives us the security we need,” Loran Hill, senior director of operations at Clovis, said in Evolv’s press release, “and since it can tell the difference between threats and most of the everyday items people bring into school, our students’ routines won’t change when they come to school, keeping anxiety levels low and the focus on education.”

The public documents obtained by The Intercept indicate that everything wasn’t perhaps as smooth as advertised. The Intercept has previously reported that research shows metallic objects repeatedly trigger alerts, despite Evolv’s claim that it’s not a metal detection system.

The sensitivity to metal came up for the Clovis school district. In an email earlier this month from Hill herself, she discussed the system’s use during the recent prom. “We all learnt a lot about clutch purses,” Hill wrote.

“Honestly didn’t think about those,” Mark Monfredi from the integrator Stone Security, responded. ”But being the same construction as the metal eye glass cases” — apparently another item that set off false alarms — “it makes sense.” (Stone Security did not respond to a request for comment.)

Despite Evolv’s initial pitch of efficiency to the school district — the company said a single-lane system could scan up to 2,000 children an hour — other Evolv internal documents sent to the school outline ways to speed up the scanning process. The two options include “The Pass Around Method” for sending students around the machines and “Conveyer Belt Addition,” the latter resembling airport security checkpoints. Both options require students to remove laptops or other “nuisance alarm items” from their bags that may set off the system.

“We are upfront with our customers and prospects that if they want the potential for a sterile environment, they will need TSA-style screening,” said Loof, referring to the Transportation Security Administration.

In another document, titled “Empowering Student Well-Being,” the company attempts to spin potential faults in its technology — namely false alarms — as potentially beneficial experiences for the students.

“Some of the students who get stopped often for secondary checks, see the interaction as part of their daily routine,” says one school official promoted in Evolv’s materials for its clients. “It gives them a chance to have a positive conversation with an adult to start the day. This even happens for students who don’t set off an alert.”

Despite the need to propose workarounds to make the system function properly, George, the CEO, couldn’t help touting about Evolv’s technology on the earnings webcast: “We’re really, really, really good at detecting guns.”

The post Profits Skyrocket for AI Gun Detection Used in Schools — Despite Dubious Results appeared first on The Intercept.

U.S. Marshals Spied on Abortion Protesters Using Dataminr

Sam Biddle — Mon, 15 May 2023 10:00:39 +0000

Dataminr, an “official partner” of Twitter, alerted a federal law enforcement agency to pro-abortion protests and rallies in the wake of the reversal of Roe v. Wade, according to documents obtained by The Intercept through a Freedom of Information Act request.

Internal emails show that the U.S. Marshals Service received regular alerts from Dataminr, a company that persistently monitors social media for corporate and government clients, about the precise time and location of both ongoing and planned abortion rights demonstrations. The emails show that Dataminr flagged the social media posts of protest organizers, participants, and bystanders, and leveraged Dataminr’s privileged access to the so-called firehose of unrestricted Twitter data to monitor constitutionally protected speech.

“This is a technique that’s ripe for abuse, but it’s not subject to either legislative or judicial oversight,” said Jennifer Granick, an attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project.

The data collection alone, however, can have a deleterious effect on free speech. Mary Pat Dwyer, the academic program director of the Institute for Technology Law and Policy at Georgetown University, told The Intercept, “The more it’s made public that law enforcement is gathering up this info broadly about U.S. residents and citizens, it has a chilling effect on whether people are willing to express themselves and attend protests and plan protests.”

The documents obtained by The Intercept are from April to July 2022, during a period of seismic news from the Supreme Court. Following the leak of a draft decision that the court would overturn Roe v. Wade, the cornerstone of reproductive rights in the U.S., pro-abortion advocates staged massive protests and rallies across the country. This was not the first time Dataminr helped law enforcement agencies monitor mass demonstrations in the wake of political outcry: In 2020, The Intercept reported that the company had surveilled Black Lives Matter protests for the Minneapolis Police Department following the murder of George Floyd.

The Marshals Service’s social media surveillance ingested Roe-related posts nearly as soon as they began to appear. In a typical alert, a Dataminr analyst wrote a caption summarizing the social media data in question, with a link to the original post. On May 3, 2022, the day after Politico’s explosive report on the draft decision, New York-based artist Alex Remnick tweeted about a protest planned later that day in Foley Square, a small park in downtown Manhattan surrounded by local and federal government buildings. Dataminr quickly forwarded their tweet to the Marshals. That evening, Dataminr continued to relay information about the Foley Square rally, now in full swing, with alerts like “protestors block nearby streets near Foley Square,” as well as photos of demonstrators, all gleaned from Twitter.

The following week, Dataminr alerted the Marshals when pro-abortion demonstrators assembled at the Basilica of St. Patrick’s Old Cathedral in Manhattan, coinciding with a regular anti-abortion event held by the church. Between 9:06 and 9:53 that morning, the Marshals received five separate updates on the St. Patrick’s protest, including an estimated number of attendees, again based on the posts of unwitting Twitter users.

In the weeks and months that followed, the emails show that Dataminr tipped off the Marshals to dozens of protests, including many pro-abortion gatherings, from Maine to Wisconsin to Virginia, both before and during the demonstrations. Untold other protests, rallies, and exercises of the First Amendment may have been monitored by the company; in response to The Intercept’s public records request, the Marshals Service identified nearly 5,000 pages of relevant documents but only shared about 800 pages. The U.S. Marshals Service did not respond to a request for comment.

The documents obtained by The Intercept are email digests of social media activity that triggered alerts based on requested search terms, which appear at the bottom of the reports. The subscribed topics have ambiguous names like “SCOTUS Mentions,” “Federal Courthouses and Personnel Hazards_V2,” “Public Safety Critical Events,” “Attorneys,” and “Officials.” The lists suggest that the Marshals were not specifically seeking information on abortion rallies; rather, the agency had cast such a broad surveillance net that large volumes of innocuous First Amendment-protected activity regularly got swept up as potential security threats. What the Marshals did with the information Dataminr collected remains unknown.

“The breadth of these search categories and terms is definitely going to loop in political speech. It’s a certainty,” Granick told The Intercept. “It’s a reckless indifference to the fact that you’re going to end up spying on core constitutionally protected political activity.”

Pro-abortion and anti-abortion supporters confronted each other on Mott Street between the Basilica of St. Patrick’s Old Cathedral and Planned Parenthood in New York City on June 4, 2022.

Photo: Lev Radin/Sipa via AP

The oldest law enforcement agency in the U.S., the Marshals are a niche holdover of early American policing, immortalized in cowboy movies and tales of the Wild West. Today, the Marshals Service retains a unique mission among federal agencies, consisting largely of transporting prisoners, hunting fugitives, and ensuring the safety of federal courts and judicial staff.

While some of the Dataminr alerts aligned with this mission, such as informing the Marshals of protests near courthouses or judges’ homes, others monitored protests in locations without any ostensible relation to the judiciary. The Basilica of St. Patrick’s Old Cathedral is well over a mile from the nearest courthouse and surrounded by trendy cafes and boutiques. Brooklyn’s Barclays Center, a sports and performance venue where a protest organized on Facebook was flagged by Dataminr on May 3, 2022, is nearly a mile from the closest courthouse.

The Marshals’ broad use of social media surveillance is not the first instance of its apparent mission creep in recent years: In 2021, The Intercept reported that a drone operated by the Marshals had spied on Black Lives Matter protests in Washington, D.C.

As an attorney who frequents courthouses, including during protests, Granick rejected the notion that a political rally is a security threat by dint of its proximity to a judiciary building.

“I would say that a tiny, tiny, tiny fraction of protests at courthouses pose any kind of risk of either property damage or personal injury,” she said. “And there’s really no reason to gather information on who is going to that protest, or what their other political views are, or how they’re communicating with other people who also believe in that cause.”

Dataminr sent a regular volley of alerts about planned and ongoing protests at or near the homes of conservative Supreme Court Justices Clarence Thomas, Brett Kavanaugh, and Amy Coney Barrett. On June 24, 2022, Dataminr sent the Marshals an alert that read, “Protest planned for 18:30 at CVS on 5700 Burke Centre Parkway in Burke, VA to travel to residence of US Supreme Court Justice Thomas.” Follow-up alerts noted the protesters were “at entrance to subdivision of neighborhood where US Supreme Court Justice Thomas lives.” A third alert included that the Marshals were already at the protest; it’s unclear why the agency would need to monitor discussion of an event where its marshals were already present.

Only a small fraction of the alerts reviewed by The Intercept include content that could plausibly be construed as threatening, and even those seem to lack any specificity that would make them useful to a federal agency. On May 3, 2022, Dataminr flagged a tweet that read “WE’RE COMING FOR YOU PLANNED PARENTHOOD.” A week later, another tweet exhorted followers to “[b]urn down anti abortion orgs, kick in extremist churches and smash the homes of the oppressors.”

“There’s an assumption underlying this that someone who complains on Twitter is more dangerous than someone who doesn’t complain on Twitter.”

The following month, Dataminr reported two tweets to the Marshals that appeared to be more hyperbolic fantasies than credible threats. One user tweeted that they would pay to watch the Supreme Court justices who overturned Roe burn alive, while another cited an individual who tweeted, “I’m not not advocating for burning down buildings. But trauma and destruction is kind of the thing that I love.”

At other times, Dataminr seemed incapable of distinguishing between slang and violence. Among several tweets about the 2022 Met Gala inexplicably flagged by Dataminr, the Marshals Service was alerted to a fan account of the actor Timothée Chalamet that tweeted, “i would destroy the met gala” — an online colloquialism for something akin to stealing the show.

These alerts show that despite the claims in its marketing materials, Dataminr isn’t necessarily in the business of public safety, but rather bulk, automated scrutiny. Given the generally incendiary, keyed-up nature of social media speech, a vast number of people might potentially be treated with suspicion by police in the total absence of a criminal act.

“There’s an assumption underlying this that someone who complains on Twitter is more dangerous than someone who doesn’t complain on Twitter,” Granick said. “Inevitably, you have people making decisions about what anger is legitimate and what anger is not.”

A U.S. Marshal patrols outside the home of Supreme Court Justice Brett Kavanaugh in Chevy Chase, Md., on June 8, 2022.

Photo: Jacquelyn Martin/AP

Aside from alerts about protests near judges’ homes or courthouses, many of the Dataminr notices appear to have no relevance to American law enforcement. Emails reviewed by The Intercept show that Dataminr alerted the Marshals to social media chatter about Saudi airstrikes in Yemen, attacks in Syria using improvised explosive devices, and political protests in Argentina.

Dataminr represents itself as a “real-time AI platform,” but company sources have previously told The Intercept that this is largely a marketing feint and that human analysts conduct the bulk of platform surveillance, scouring the web for posts they think their clients want to see.

Nonetheless, Dataminr is armed with one technological advantage: the Twitter firehose. For companies willing to pay for it, Twitter’s firehose program provides unfettered access to the entirety of the social network and the ability to automatically comb every tweet, topic, and photo in real time.

The Marshals Service emails also show the extent to which Dataminr is drinking from far more than the Twitter firehose. The emails indicate that the agency is notified when internet users merely mention certain political figures, namely judges and state attorneys general, on Telegram channels or in the comments of news articles.

Although most of the Dataminr alerts don’t include the text of the original posts, those that do often flag innocuous content across the political spectrum, including hundreds of mundane comments from blogs and news websites. In July, for instance, Dataminr reported to the Marshals web comments calling New York Attorney General Letitia James a “racist;” a user saying, “God Bless Gov. Youngkin,” referring to the Virginia governor; and another comment arguing that “Trump wants to hide out in the Oval Office from the responsibility and any accountability for what he did on January 6th and before.” When Ohio Attorney General Dave Yost made national headlines after suggesting that reports of a 10-year-old rape victim denied an abortion may have been fabricated, the Marshals received dozens of alerts about blog comments debating his words.

In some cases, Dataminr appeared incapable of differentiating between people with the same name. On May 18, the Marshals received an alert that “New Jersey District Court Magistrate Judge Jessica S. Allen” was mentioned in a Telegram channel used to organize an anti-Covid lockdown rally in Australia. The text in question appears to be automated, semicoherent spam: “I’ve been a victim of scam, was scared of getting scammed again, but somehow I managed to squeeze out some couple of dollars and I invested with Jessica Allen, damn to my surprise I got my profit within 2 hours.”

Even those sharing links to articles without any added commentary on Telegram fell under Dataminr scrutiny. When one Telegram user shared a July 4, 2022, story from The Hill about Kentucky Attorney General Daniel Cameron’s request that the Supreme Court put the state’s abortion ban back in place, it was flagged to the U.S. Marshals within an hour.

“Discussions of how people view political officials governing them, discussions of constitutional rights, planning protests — that’s supposed to be the most protected speech,” Georgetown’s Dwyer said. “And here you have it being swept up and provided to law enforcement.”

At the time the Marshals received the alerts obtained by The Intercept, Dataminr was listed as an “official partner” on Twitter’s website. Since Elon Musk acquired Twitter in October 2022, the company’s partnership with the social media site has continued. Despite his fury against people who might track the location of his private jet, Musk does not appear to have similar misgivings about furnishing federal police with the precise real-time locations of peaceful protesters.

Twitter’s longtime policy forbids third parties from “conducting or providing surveillance or gathering intelligence” or “monitoring sensitive events (including but not limited to protests, rallies, or community organizing meetings).” When asked how Dataminr’s surveillance of protests using Twitter could be compatible with the policy banning the surveillance of protests, Dataminr spokesperson Georgia Walker said in a statement:

Dataminr supports all public sector clients with a product called First Alert which was specifically developed with input from Twitter, and fully complies with Twitter’s policies and the policies of all our data providers. First Alert delivers breaking news alerts enabling first responders to respond more quickly to public safety emergencies. First Alert is not permitted to be used for surveillance of any kind by First Alert users. First Alert provides a public good while ensuring maximum protections for privacy and civil liberties.

Both Twitter, which no longer has a communications team in the Musk era, and Dataminr have denied that the persistent real-time monitoring of the platform on behalf of police constitutes “surveillance” because the posts are public. Civil libertarians and scholars of state surveillance generally reject their argument, noting that other forms of surveillance routinely occur in public spaces — security cameras pointed at the sidewalk, for instance — and that Dataminr is surfacing posts that would likely be hard for police to find through a manual search.

“There is a world of difference between reading through some public tweets and having a service which indexes, stores, aggregates, and makes that information searchable.”

“There is a world of difference between reading through some public tweets and having a service which indexes, stores, aggregates, and makes that information searchable,” Granick said. As is typical with surveillance tools, police are inclined to use Dataminr not necessarily because it’s effective in thwarting or solving crimes, she said, but because it’s easy and relatively cheap. Receiving a constant flow of alerts from Dataminr creates the appearance of intelligence-gathering without any clear objective or actual intelligence.

In the absence of automated tools like Dataminr, police would have to make choices about how to use their finite time to sift through the vastness of social media platforms, which would likely result in more focus on actual criminality instead of harmless political chatter.

“What this technology does is it liberates law enforcement from having to make that economic calculation and enables them to do both,” Granick explained. “And then once the technology does that, in the absence of any kind of regulation, there’s insufficient disincentive to stop them from doing it.”

Following January 6, 2021, lawmakers questioned why police were blindsided by the storming of the U.S. Capitol even though it was openly planned online. There were calls to bolster the government’s ability to monitor social media, which were again sounded in the wake of the recent leak of classified intelligence documents on Discord. These calls, however, ignore the vast scale of social media surveillance already taking place, surveillance that has failed to stop both apparent blows to state security.

While Dataminr and its many competitors stand to profit immensely from more government agencies buying these tools, they have little to say about how they’ll avoid generating even more noise in search of signal.

“Collecting more hay,” Granick said, “doesn’t help you find the needle.”

Correction: May 16, 2023
This story has been updated to use Alex Remnick’s correct pronoun.

The post U.S. Marshals Spied on Abortion Protesters Using Dataminr appeared first on The Intercept.

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