News of the leadership vacuum comes as experts and officials call for investigations into the communications failures between local, state, and federal agents that allowed a shooter to hit Trump, kill one rally attendee and injure at least two others.

Former Butler Township Police Department Chief John Hays retired last month, both Hays and a department administrator told The Intercept. There is no acting chief, but Lieutenant Matthew Pearson is the current head of the department. The department, which employs around 20 people, did not immediately respond to a request for further information about the absence of a chief. 

Amid reports that Secret Service agents manning the event were asleep, negligent, or both, the lack of communication between various local, state, and federal agencies likely placed disproportionate responsibility on local police, said Jeffrey Fagan, a professor at Columbia University Law School who studies policing.

“Local cops were left to shoulder the burden of security without much help from any federal agency, whether Secret Service or the FBI or anyone else,” he said. “They should have yelled for help, and so should the county government leaders.” 

The shooting has raised new questions in the debate over police funding, gun control, and how well officers can be expected to handle active shooters, regardless of resources and training. 

Similar questions plagued officials in the wake of the mass shooting at an elementary school in Uvalde, Texas, after police on the scene refused to enter the building, even after receiving training, first reported by The Intercept, to put themselves in harm’s way to stop active shooters,

A head of department would normally take ultimate responsibility for answering such questions. Uvalde schools police chief Pete Arredondo was recently indicted for his actions on the day, including the failure to follow the training.

“There should have been a protocol in place for coordination between the acting head of the local police and the federal agencies,” said Fagan. “Or the County Executive and that person’s designee. But it’s nuts for the Secret Service to delegate any aspect of presidential or former presidential security to the local police regardless.”

Law enforcement agencies’ failures on Saturday undermines the notion of perfect security, said Alex Vitale, professor and coordinator of the Policing and Social Justice Project at Brooklyn College at the City University of New York. 

“There is no world where if we just assign enough police, we will eliminate all risk,” Vitale said. 

Why and how there was a profound breakdown in communication between local police and state and federal agents needs scrutiny, Vitale added. It appears that local police were made aware of the shooter, took some inadequate action to neutralize the shooter, but did not successfully communicate to the Secret Service, he said, and the Secret Service may not have communicated their plans clearly to local police. 

“A breakdown in communication could be because of inadequate command and control procedures at the local police level.”

“Did the local police fail to make certain kinds of procedures or equipment available to their officers to ensure this communication?” Vitale said. “Or was it just in the heat of the moment, local cops thought they could handle it without bothering the Secret Service, and clearly they couldn’t handle it? We’d want to know who’s in charge of the local police and what the plan of the day was.”

“A breakdown in communication could be because of inadequate command and control procedures at the local police level.”

Blame Game

The tiny Butler Township Police Department was one of several law enforcement agencies on the grounds at the rally on Saturday where 20-year-old Thomas Matthew Crooks killed one attendee and injured at least two other people.

Secret Service agents were also on the scene and their failure to prevent the shooting has prompted calls for an investigation into the agency. 

With accusations flying, experts and responding agents have pointed the finger at each other. 

Butler County Sheriff Michael Slupe described the response to the shooting as a security failure, but did not blame any single agency. He also defended a Butler Township police officer who encountered Crooks just before the shooting took place and retreated after he pointed his rifle at him. (The sheriff’s office and Butler Township Board of Commissioners President Jim Lokhaiser Jr. did not immediately respond to requests for comment.)

Reached for comment, former Butler Township Police Chief John Hays said his last day at the department was June 14. “I really don’t have much information other than what I’m reading in the paper or hearing on the news,” he said. 

Local police, Vitale said, should not be the only ones bearing blame for the communication breakdown. Instead of trying to pinpoint responsibility, he said, the broader problem lies in the idea that policing is politically neutral and that it can produce perfect public safety. 

“The fear of risk is weaponized by those who want to both gain political advantage by promising a risk-free future that they know they can’t deliver on,” Vitale said. “Those folks will weaponize the security apparatus to serve their political interests rather than producing any true, broad-based security for people.” 

“Those security services,” he said, “their first overriding job will be the neutralization of their political enemies, whether it’s grassroots movements, or whatever.”

Pennsylvania lawmakers have long stymied legislation to strengthen gun laws in the state, even while decrying gun violence. Earlier this year, state lawmakers fought a ban on the gun used in the assassination attempt. 

In Congress, Rep. Mike Kelly, R-Penn., who represents the district, has voted against efforts to pass an assault weapons ban. (Kelly did not immediately respond to a request for comment.) 

The Butler County Sheriff’s office is currently advertising a basic handgun safety class and services to apply for or renew licenses to carry concealed firearms. According to its website, the office was accepting applications to carry weapons on the day of the shooting.

The post The Local Police Department Responding to Trump Shooting Has No Chief appeared first on The Intercept.

To rule as she did, Cannon had to sidestep longstanding Supreme Court precedent about independent prosecutors, which she decided was not precedent at all but instead mere “dictum” that need not be followed. This was precisely the path outlined by conservative Justice Clarence Thomas earlier this month in a decision regarding Trump’s prosecution for his role in the January 6 insurrection, where the constitutionality of the special counsel’s appointment was not even at issue. 

None of the other Supreme Court justices signed onto Thomas’s concurring opinion, but Cannon cited it three times. 

“Justice Thomas’s ‘Cannon-currence’ worked,” law professor Leah Litman tweeted after Cannon’s ruling came out. “In the Trump immunity case, Justice Thomas wrote separately to suggest the special counsel was unlawfully appointed; the reasoning laid out the roadmap for this (wrong) result/decision.” 

In United States v. Nixon, a 1973 decision, the Supreme Court rejected former President Richard Nixon’s attempts to stonewall a grand jury investigation into the Watergate break-in. The Supreme Court unanimously ruled that Nixon had to comply with the subpoena of a special prosecutor, who had been appointed in compliance with the Constitution, federal law, and regulation. 

For decades, the Nixon ruling has been understood to affirm the constitutionality of independent prosecutors and special counsel who are appointed by the attorney general to handle certain politically sensitive cases. In 2019, the D.C. Circuit Court of Appeals reaffirmed this understanding when it shot down a challenge to Robert Mueller’s appointment to investigate Russia’s attempts to interfere in the 2016 presidential election.

The D.C. Circuit specifically rejected arguments that a key section in the Nixon decision was “dictum.”

Earlier this month, however, Justice Thomas went out of his way to endorse that theory. 

The Supreme Court immunity case stemmed from the separate investigation into Trump’s involvement in the January 6 insurrection. In that case, Trump argued he was completely immune from prosecution, but he did not challenge Jack Smith’s appointment as special counsel. 

Still, at oral argument in April, Justice Thomas asked about the appointment issue. 

“Did you, in this litigation, challenge the appointment of special counsel?” he asked Trump’s attorneys, who confirmed that they had raised it in the classified documents case but not in the January 6 prosecution.

On July 1, the Supreme Court’s conservative majority ruled Trump had presumptive immunity for any “official acts” he took in the lead up to the insurrection. Writing only for himself, Justice Thomas issued a concurring opinion “to highlight another way in which this prosecution may violate our constitutional structure.” 

“If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,” Thomas wrote in his concurrence. “The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.”

Thomas laid out his concerns about the constitutionality of special counsel like Smith, and he took a swipe at the Nixon decision as giving only “passing reference” to relevant statutes while providing “no analysis of those provisions’ text.”

In her decision on Monday, Cannon followed Thomas’s analysis, which no other conservative Supreme Court justice joined, while dismissing the D.C. Circuit’s unanimous determination that Nixon remained binding precedent.

Thomas “laid the table and Judge Cannon took a seat,” law professor Melissa Murray tweeted on Monday.  

The post How Clarence Thomas Cleared Trump’s Path in Classified Docs Case appeared first on The Intercept.

On July 2, the court unanimously declined to review the case of Charles McCrory, who was convicted in Alabama in 1985 for the murder of his wife, based almost exclusively on bogus bite-mark testimony. Bite-mark analysis has been roundly discredited by scientists and, to date, is behind at least 39 wrongful convictions or indictments.

Bite-mark evidence is among a host of problematic, scientifically questionable forensic practices widely used in the criminal legal system. While a number of forensic practitioners have acknowledged the problem and sought to get their disciplines on firmer scientific footing, the law has not caught up. Ostensibly, courts are supposed to vet forensic evidence before trial, though because judges are not scientists — and most lack any science training — this is rarely effective, and they often allow even the most questionable science into evidence.

For people like McCrory subsequently convicted based on junk science, there is often no straightforward way for the courts to revisit or correct old cases based on outdated and debunked forensic practices. The law favors finality, so once someone is sent to prison, it becomes difficult to challenge a conviction based on junk science, and judges often deny appeals based on procedural matters without ever engaging with those flaws.

While the Supreme Court has occasionally acknowledged this problem, among her colleagues, Sotomayor was alone in calling out the crisis it has created. In a statement alongside the denial of McCrory’s appeal, Sotomayor described his case as a symptom of a broader problem.

“This petition raises difficult questions about the adequacy of current postconviction remedies to correct a conviction secured by what we now know was faulty science,” Sotomayor wrote. “Hundreds if not thousands of innocent people may currently be incarcerated despite a modern consensus that the central piece of evidence at their trials lacked any scientific basis.”

To date, a handful of states have created a direct avenue of appeal for defendants convicted based on junk or debunked science. Texas was first, and Sotomayor notes that the statute has been used to exonerate a man named Steven Mark Chaney, who was convicted on bogus bite-mark evidence. California has a similar statute, which was used to exonerate Bill Richards, also convicted on discredited bite-mark analysis. 

“These statutes,” Sotomayor wrote, “create an efficient avenue for innocent people convicted based on forensic science that the scientific community has now largely repudiated.”

A Flimsy Piece of Evidence

Throughout the nearly four decades since his wife’s murder, McCrory has maintained his innocence. In 2022, The Intercept published a lengthy investigation into McCrory’s case, detailing the flaws in the state’s case against him. The case has since attracted additional attention and media coverage, highlighting the problem of junk forensic science. 

Related

A Bogus Bite Mark Sent Him to Prison for Murder. Alabama Wants to Keep Him There.

Julie McCrory’s body was found inside her home in Andalusia, Alabama, on the morning of May 31, 1985. Her head was bashed in, and she’d been repeatedly stabbed in the chest. The couple’s young son Chad, then 3 years old, was found unharmed in his crib. Police quickly zeroed in on McCrory as their only suspect: He and Julie were separated, and McCrory had been having an affair. At trial, the theory seemed to be that he’d savagely murdered Julie to be free from her.

The police investigation was cursory at best. Detectives searched McCrory’s home and car and found nothing to connect him to the bloody crime. Meanwhile, they ignored some evidence altogether, including two bedroom windows that were found open, but which investigators failed to dust for fingerprints. Police also failed to consider an alternate suspect, a man who worked at an excavating company bordering the McCrorys’ backyard and who, just weeks after Julie’s murder, committed a home invasion rape of another local woman. He was convicted and sent to prison for that crime.  

Ultimately, the state latched onto a single piece of physical evidence against McCrory: a pair of small indentations on the back of Julie’s right arm, which prosecutors concluded was a bite-mark made by McCrory’s allegedly distinctive dentition.

To sell this theory, the state employed famed forensic dentist Richard Souviron, a star prosecution witness in the recent and sensational trial of serial killer Ted Bundy. Although Souviron initially said he couldn’t definitively link the two marks on Julie’s arm to McCrory, at trial he was unequivocal that they did indeed match. 

More than three decades later, Souviron recanted his testimony. He provided an affidavit to McCrory’s lawyers, Chris Fabricant of the Innocence Project and Mark Loudon-Brown of the Southern Center for Human Rights, who presented it at a 2021 evidentiary hearing in Andalusia. “As a forensic odontologist I no longer believe the individualized teeth marks comparison testimony I offered in his case was reliable or proper,” Souviron wrote. “I no longer believe, as I did at the time of trial, that there is a valid scientific basis for concluding that the injury found on the skin of the victim in this case, assuming that the injury is in fact teeth marks, could be ‘matched’ or otherwise connected to a specific individual, such as Mr. McCrory.” 

Fabricant and Loudon-Brown also presented testimony from two leading forensic dentists who were once bite-mark true believers but now admitted that the discipline lacked any scientific underpinning and was not valid evidence. They agreed to testify for free, they told the court, because they felt they had a duty to correct the record. Dr. Cynthia Brzozowski, a veteran forensic dentist from New York, told the court that she felt an “ethical and civic responsibility” to testify in cases like McCrory’s.

In response, prosecutors presented no evidence and instead insisted that McCrory was guilty based on the same case presented at trial, including the bite mark — which they now termed “teeth marks” — implying that this was a separate and valid discipline. It is not. Regardless, prosecutor Grace Jeter argued that, even if Souviron had not testified for the state, jurors could have looked at the marks on Julie’s body and the dental molds taken from McCrory and decided for themselves that the wounds were caused by McCrory’s teeth. In other words, the jury would have been free to engage in its own expert-free junk science. 

In the end, Covington County Circuit Court Judge Lex Short agreed with the state, denying McCrory’s request for a new trial. The Alabama Court of Criminal Appeals upheld his decision. When McCrory’s lawyers asked the court to reconsider — in part because one of the justices had previously defended McCrory’s conviction while working as a prosecutor — the court simply reissued its opinion, complete with a typo that appeared in the original, along with a note saying that the judge had now recused herself.

McCrory’s team then appealed to the Supreme Court, which last week denied review.

Legislatures Need Not Wait

In their petition to the high court, McCrory’s lawyers asked the justices to consider two questions: whether the right to due process precludes a judge from deliberating on the appeal of a case they’d previously worked on, and whether there is a “due process right not to be convicted based on forensic evidence later shown to be fundamentally unreliable.”

Sotomayor joined her colleagues in declining to review the case, writing separately to explain. “I vote to deny this petition because due process claims like McCrory’s have yet to percolate sufficiently through the federal courts,” she wrote. “Legislatures concerned with wrongful convictions based on faulty science, however, need not wait for this Court to address a constitutional remedy.”

She notes that the “wholesale reevaluation” of forensics began with a congressionally mandated review by the National Academy of Sciences, which in 2009 issued a landmark report calling out nearly all forensic practices as scientifically unsound. The report included harsh criticism of bite-mark evidence. In 2016, those concerns were reiterated in a bombshell report from the President’s Council of Advisors on Science and Technology, a body that provides nonbinding recommendations to the U.S. president. The advisory council noted that bite-mark analysis would never likely pass scientific muster. Since then, the National Institute of Standards and Technology has issued its own exhaustive report finding the same. 

For all intents and purposes, bite-mark evidence is dead — except in many courts, including in Alabama, which refuse to consider its status when evaluating appeals such as McCrory’s. In part, the problem is that statutes outlining post-conviction procedures were written prior to scientific advancements and do not contemplate the evisceration of an entire field of practice, leaving countless defendants convicted on junk science without any meaningful avenue to challenge their convictions. 

Alabama’s prosecutors argue, first, that courts approved the use of bite-mark evidence in the 1980s, and so, in theory, it remains legitimate. Second, they argue that McCrory should have raised this issue years ago — back in 2002, in fact, when his lawyers first found a Newsweek article that questioned bite-mark evidence. In other words, their argument isn’t necessarily that bite-mark evidence is good or even valid, but rather, that Alabama law still recognizes the discipline, and there’s nothing new in McCrory’s appeals that changes that. Souviron’s affidavit recanting his testimony is too little, too late. 

But just because some people were questioning bite-mark evidence in the early 2000s doesn’t mean that the scientific consensus had changed by then. It had not. And as The Intercept has reported, the battle over bite-mark evidence and other forms of junk science, continues to this day.

This makes it difficult for people like McCrory who seek to challenge their convictions based on new evidence. “Because science evolves slowly rather than in conclusive bursts,” Sotomayor wrote, it is hard to pinpoint when the science has truly changed and thus, when the issue should be raised on appeal. “Unlike a murder weapon left in an abandoned warehouse, forensic science does not lie around waiting for sudden discovery.”

And when scientific evidence is debunked, it’s a unique and ground-shaking event that needs addressing. “Evidence that an entire mode of forensic analysis has no scientific basis, however, is of a different category from evidence that might call into question a witness’s credibility or motive to testify.”

Sotomayor’s statement is a big deal, said Fabricant, who also wrote a book on junk forensic science. “Justice Sotomayor’s concurrence is the first time any Supreme Court Justice has recognized the appalling legacy of wrongful convictions attributable to the use of junk science in criminal cases, and the failure of lower courts to take remedial action to address these all too common miscarriages of justice.”

Fabricant and Loudon-Brown, McCrory’s other lawyer, have filed an appeal in federal district court raising the same concerns they brought to the Supreme Court. While Alabama is arguing that the appeal should be tossed out, Sotomayor seems to be nodding to the district court to give McCrory’s case a thorough vetting. 

“We appreciate Justice Sotomayor recognizing that Charles McCrory was convicted based on bitemark evidence that science has condemned and that the expert who testified against him has recanted,” McCrory’s lawyers wrote in an email to The Intercept. “But today an innocent man remains in prison, where he has been for almost 40 years. We will continue to fight for Mr. McCrory in the federal courts and call upon the State of Alabama to rectify this injustice.”

The post There’s a Junk Science Crisis in Criminal Convictions. Sonia Sotomayor Calls It Out in Alabama Bite-Mark Case. appeared first on The Intercept.

Monday’s Supreme Court ruling granting far-reaching presidential immunity gives the lie to decades of right-wing propaganda about the real purpose of the long conservative campaign to take over the court.

Generations of conservative pseudointellectuals have argued that the mission of the Federalist Society, the powerful conservative legal group that has seeded the Supreme Court with its zombie-like members, was to bring the court back to its original mandate under the Constitution. The right-wing pundits who promoted the Federalist Society were always a little vague on what their version of “originalism” really entailed, which led to widespread suspicions that it just meant whatever was politically beneficial to conservatives.

The ruling on presidential immunity is just the latest piece of evidence that shows that originalism was just a confidence game by the right to gain power. The court’s conservative majority has revealed itself to be a corrupt political machine with both short- and long-term goals. Today, the court is determined to protect Donald Trump and the Republican Party; longer-term, its mandate is to protect and defend the powers of those who will enable white minority rule in America for years to come.

The court’s immunity ruling is nearly a blank check for Donald Trump.

The court’s immunity ruling is nearly a blank check for Trump, a brazen attempt to protect him from his ongoing criminal cases and to grant him virtually unlimited power if he gets back into the White House. With its ruling, the Supreme Court’s right-wing block has made it clear: They are tired of democracy. The justices want a dictator.

But they only want a right-wing dictator. It is not hard to imagine how differently the justices would have ruled if the question of presidential immunity had come before them in a case involving a Democratic president. 

The right-wing court is engaged in a radical revolution, and its objective is to rewrite modern American history. Through their rulings, the conservative justices are revealing what the American right has until recently tried to keep quiet, which is that the right doesn’t accept any of the major changes that have happened in American society since World War II. They have in their minds a fantasy version of 1940s America, even though almost none of them were alive at the time. What they yearn for is a nation before integration and civil rights, before women’s rights and reproductive rights, before gay rights, before the modern expansions of free speech and press freedom. Above all, they want a return to a less diverse America, a nation in which white male power was unquestioned. They want it so badly that they are willing to abandon democracy to get it. 

The radicalized court, with the Federalist Society’s approval, are in the process of demolishing the landmark Supreme Court rulings of the post-World War II era.

In order to get confirmed, Trump’s appointees to the court lied to the Senate by claiming that they saw Roe v. Wade as settled law; they ripped it up as soon as they consolidated their power on the court. In quick succession, they have gone after voting rights, affirmative action, gun control, environmental regulations, while sending out the word that now is a good time for conservative lawyers to bring their most extreme lawsuits to the court in order to create more right-wing precedents. This court could ban access to contraceptives next; another target could be a reversal on the legalization of gay marriage. The court is now so radical that it would not be surprising to see it go after Brown versus Board of Education, the historic Supreme Court ruling that declared that separate but equal schools were unconstitutional and which helped formed the basis for integration.

This court will be remembered like the justices behind the Dredd Scott decision, the worst ruling by the Supreme Court in American history. Their robes don’t hide their naked grab for political power.      

The post The Supreme Court Wants a Dictator appeared first on The Intercept.

Together, these rulings further one of the prime directives of the conservative legal movement, enshrined in the Project 2025 manifesto: “deconstruct the Administrative State.” The decisions also further consolidate authority within the federal judiciary. 

In the first decision, SEC v. Jarkesy, issued Thursday, the conservative majority undercut oversight agencies’ ability to issue fines and penalties through specialized administrative proceedings instead of backlogged federal courts. In the second, Loper Bright Enterprises v. Raimondo, issued Friday, the conservative majority struck down a landmark decision about regulators’ role in interpreting the law. 

Both cases were decided 6-3, along ideological lines. 

Writing for the dissenting liberal justices in Loper Bright, Justice Elena Kagan paired the two decisions as showing “the Court’s resolve to roll back agency authority, despite congressional direction to the contrary” as well as the conservative majority’s eagerness to jettison “settled law” like Roe v. Wade. 

Allison Zieve, litigation director at watchdog Public Citizen, said the decisions were a power grab. 

“Like the Jarkesy decision from yesterday, today’s decision increases the courts’ authority at the expense of the other two branches,” Zieve told The Intercept.

Chief Justice John Roberts wrote both decisions and in both, the conservative majority followed the paths urged by the U.S. Chamber of Commerce and conservative advocacy organizations like America First Policy Institute. 

“Like the Jarkesy decision from yesterday, today’s decision increases the courts’ authority at the expense of the other two branches.”

Earlier this term, over the howling objections of Justices Samuel Alito and Clarence Thomas, the court stopped short of holding that an entire oversight agency, the Consumer Finance Protection Bureau, was unconstitutional by design. Instead, the conservative majority is taking the tack of hamstringing regulators. 

The SEC decision eliminates one of the enforcement mechanisms Congress created in the wake of the 2008 financial crisis. In the Dodd-Frank Act, passed in 2010, Congress authorized the Securities and Exchange Commission to impose civil penalties against fraudsters through administrative hearings instead of a full-fledged federal trial. The Supreme Court ruled that this mechanism violated the constitutional rights of the plaintiffs — a hedge fund manager and his firm — to a jury trial.  

The ruling has implications far beyond the SEC. As Justice Sonia Sotomayor, writing for the three liberal dissenters, pointed out, it casts doubt on similar administrative enforcement mechanisms at more than two dozen agencies, including the CFPB, Environmental Protection Agency, and Food and Drug Administration. 

“Today’s ruling is part of a disconcerting trend,” Justice Sonia Sotomayor wrote for the three liberal justices in her SEC dissent. “When it comes to the separation of powers, this Court tells the American public and its coordinate branches that it knows best.”

The Loper Bright case originated from a seemingly minor dispute over fishing regulations, but conservatives used it to challenge a key feature of oversight agencies: their role in interpreting the laws they enforce. In a 1976 decision reviled by conservatives, Chevron v. Natural Resources Defense Council, the Supreme Court ruled that courts should defer to agencies’ reasonable interpretations of ambiguous statutes. 

“The Chevron doctrine was an effort by the earlier Supreme Court and lower courts to respect the separation of powers,” Zieve told The Intercept, “by respecting Congress’s decision to delegate authority to agencies to implement regulatory statutes and not aggrandizing the role of the courts.”

On Friday, the conservative majority struck down the Chevron doctrine. In her dissent, Kagan fleshed out how sprawling the effects would be. 

“That rule has formed the backdrop against which Congress, courts, and agencies — as well as regulated parties and the public — all have operated for decades,” Kagan wrote. “It has been applied in thousands of judicial decisions. It has become part of the warp and woof of modern government, supporting regulatory efforts of all kinds — to name a few, keeping air and water clean, food and drugs safe, and financial markets honest.”

The Loper Bright majority ruled that prior decisions that applied Chevron to questions about the scope of the Clean Air Act and other laws are still good law, for now. 

This week’s rulings set the table for other conservative challenges already making their way to the court, including attacks on the National Labor Relations Board and the Federal Trade Commission. 

“Taken together, these cases continue the pattern of the Supreme Court taking power for the federal judiciary and away from people who are accountable to elected officials,” said Georgia State University law professor Eric Segall. “The justices are accountable to no one.”

The post The Supreme Court’s Latest Power Grab: Regulatory Oversight appeared first on The Intercept.

Their differences immediately reemerge, however, as to why. For Alito, the answer is that there is apparently no federal law that protects abortion access, and the court should have said so. For Jackson, the reason is opposite: Federal law clearly protects patients who need abortion care, and failing to say so puts people in harm’s way.

“How long must pregnant patients wait for an answer?” Jackson wrote in a fiery dissent. “Today’s decision is not a victory for pregnant patients in Idaho. It is delay.”

At issue is the scope of the federal Emergency Medical Treatment and Active Labor Act, or EMTALA, which was passed in the 1980s in response to an epidemic of risky patient transfer practices, known as “patient dumping.” The law requires all hospitals that receive Medicare funds to evaluate every patient who shows up to the emergency room and, in a medical emergency, to provide necessary stabilizing treatment. The law defers to medical professionals to determine when an emergency exists and what stabilizing treatments are needed.

As states rushed to ban abortion in the wake of the Dobbs ruling, some, like Idaho, enacted laws with only vague exceptions for care, including to save the “life of the mother.” The federal government quickly sued to block Idaho’s ban, arguing that EMTALA preempted it. In other words, the Biden administration argued that because federal law guarantees every emergency room patient access to stabilizing treatment, Idaho can’t prevent pregnant people from accessing abortions during a medical emergency. Idaho, of course, disagreed.

While the court’s decision to sidestep a ruling means that, for now at least, emergency abortions are still allowed in Idaho, it also leaves open current and future challenges to EMTALA. Meanwhile, opinions by Alito and Justice Amy Coney Barrett, joined by other members of the court’s conservative supermajority, offer a clear legal road map for anti-abortion lawmakers and activists who are plotting for a nationwide abortion ban.

As Alexa Kolbi-Molinas, deputy director of the ACLU Reproductive Freedom Project, put it, the “opinions just provide building blocks” for extremists to “reach their ultimate goal.”

An Incomplete Victory

After some preliminary jockeying in the federal courts that saw Idaho’s ban enjoined as it related to emergency care — but well before the case had played out through the normal course of litigation — Idaho ran to the Supreme Court for intervention. The state claimed that it would be irreparably harmed if it wasn’t allowed to deny abortion care in emergency situations protected by EMTALA. The Supreme Court obliged, lifting the injunction and allowing the state’s ban to override EMTALA protections while the case was pending before the court.

On Thursday, however, in an unsigned, one-sentence order, the court concluded it had waded into the dispute too soon. It sent the case back to the lower federal courts to resume the litigation and allowed the injunction to go back into effect.

A similar situation is ongoing in Texas, where the state sued to block EMTALA’s enforcement against its own abortion ban. There, the 5th U.S. Circuit Court of Appeals last year co-signed Texas’s efforts, barring EMTALA’s protections in the state while the litigation is pending. The federal government has appealed to the Supreme Court, which still has not said whether it will hear the case.

For people in Idaho, the court’s decision to punt looks like a win for pregnant patients and medical providers who face harsh penalties for disobeying the near-total abortion ban. But as the Texas litigation shows, it is cold comfort in a landscape where anti-abortion zealots are determined to force all people to carry their pregnancies to term, regardless of their viability or the threats pregnancy may pose to the person’s life or future fertility. Nor has the court done anything to ensure that pregnant people aren’t considered second-class citizens in the emergency room and dumped to other jurisdictions for care — the problem the law was designed to prevent.

“The Supreme Court’s failure to clearly and unequivocally affirm the right of every pregnant person to emergency care,” Kolbi-Molinas said, means that “the chaos and confusion caused by abortion bans across the country, including in states like Texas, will continue to prevent providers from providing appropriate medical care to their patients when they need it most.”

“Alarm Bells”

In addition to the court’s unsigned order, several justices penned opinions either concurring with the decision or dissenting from it. Notable among those opinions, primarily for its fictitious content, is the dissent authored by Justice Samuel Alito, which was joined by colleagues Clarence Thomas and Neil Gorsuch.

Like Jackson, Alito disagrees with the court’s decision not to issue an opinion in the case, but for reasons other than the disservice that does to patients. Where Jackson is concerned about leaving patients and providers in limbo, Alito fully adopts Idaho’s position to argue that EMTALA never protected pregnant patients in need of abortion in the first place.

His argument rests on four central claims: that since there’s no mention of abortion in EMTALA, it could not have covered abortion; that since noted anti-abortion lawmakers voted for EMTALA in the 1980s, the law couldn’t have conceivably protected abortion; that since the law contains four references to the “unborn child,” medical professionals are bound to consider the fetus as a separate and equal patient for whom abortion is never treatment; and that to allow EMTALA to preempt a corner of Idaho’s ban would be to unleash a wave of “elective” abortions inside the nation’s emergency rooms.

To make that case, Alito drafted a wholesale rewrite of legislative and legal history.

For starters, EMTALA doesn’t contain the word “abortion” because, at the urging of medical professionals, Congress left the menu of stabilizing treatments to their discretion. Moreover, at the time of EMTALA’s passage, abortion was constitutionally protected care meaning no state had criminalized — or could legally criminalize — it. In other words, at passage, that was a non-issue among the bipartisan majority who voted for the law.

Alito is “using this strawman argument to try to sound like he’s reasoning through the legislative history, but he is making things up,” said Nicole Huberfeld, a professor at Boston University’s schools of law and public health. “And the reason he’s doing that is that the actual legislative history does not support his position.”

“The actual legislative history is that Congress created a national rule that made it so that it doesn’t matter who you are, the color of your skin, whether you can pay, what state you live in,” she said. “It is the single universal access to care rule that we have in the United States. And Justice Alito doesn’t get to just make up the history of this rule.”

Similarly, Alito has taken the “unborn child” references in the statute entirely out of context to claim that the law treats the fetus as a separate individual entity afforded equal protection under EMTALA. It’s a full-throated endorsement of the concept of “fetal personhood,” which is the aim of many anti-abortion activists and politicians.

The problem for the justice, however, is that the history of EMTALA and its actual language clearly say otherwise. Three of the four mentions of an “unborn child” in the statute relate directly to the duty of medical professionals to consider the risks to the fetus during labor when transferring a patient to another hospital. The fourth is meant to ensure that a pregnant person in the ER will receive care for a pregnancy-related problem that is not currently placing their own life at risk.

Kolbi-Molinas of the ACLU said that “there should be alarm bells” going off about Alito’s dissent, “because we know there are extremists out there pushing a strategy to give legal rights to embryos and fetuses that would override the rights of the pregnant person.” While “fetal personhood” was not an actual question in the EMTALA case, she stressed, Alito’s opinion signals conservative justices’ appetite for endorsing it. “If a majority of the court were to endorse that theory, that would mean a nationwide abortion ban — and not only that, it would mean bans on IVF and birth control.”

In a separate concurring opinion, Barrett, joined by Chief Justice John Roberts and Justice Brett Kavanaugh gave credence to another troubling argument: that Congress may have overstepped its spending power by tying EMTALA to the receipt of Medicare dollars.

During oral arguments in April, an attorney for Idaho argued that because abortion is not specified in the text of the statute, the state can’t be forced to allow abortions as a condition for receiving Medicare funds — let alone to accept that EMTALA preempts the state’s criminalization of abortion.

“Petitioners have raised a difficult and consequential argument,” Barrett wrote, “about whether Congress, in reliance on the Spending Clause, can obligate recipients of federal funds to violate state criminal laws.” Put differently, the courts should decide whether Congress could use the power of the purse to force hospitals to provide abortion care in violation of the state abortion ban. (In his dissent, Alito also addresses the issue, concluding, on notion alone, that EMTALA would fall to such concerns.)

It’s a technical point, but one with vast implications. If the court’s majority eventually takes the opinion that Congress overstepped, said Huberfeld, they would allow states to nullify laws like EMTALA. Medicare, Medicaid, the Children’s Health Insurance Program, cash welfare, and food and housing programs would also be vulnerable.

“All of our major health laws rely on the spending power, at least in some degree,” she said. “If states didn’t have to comply with these federal laws, then we would have even more chaos and conflict over social programs.”

Health Care Denied

In his dissent, Alito also claims — without a bare hint of evidence to back it up — that upholding EMTALA’s protection for pregnant people somehow means opening hospital emergency rooms to “abortion on demand.” He appears to believe that many pregnant people in distress who wind up in the emergency room are actually there solely to access abortion — and, presumably, that doctors are fine to just wink and go along. 

The reality is that since the Dobb’s decision (also a product of Alito’s fanciful pen), the proliferation of abortion bans like the one in Idaho have led to distressingly common stories of patients being denied abortions amid medical crises, including in Idaho. As Justice Elena Kagan notes in a concurrence joined by Justice Sonia Sotomayor — and, in part, by Jackson — while EMTALA was blocked in Idaho (at the court’s direction), “the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week.” Over the course of the previous year, while EMTALA’s protections were in effect, they’d done so just once.

Still, Kagan agreed that sending the case back to the lower courts for further litigation was the right call. Jackson was not so sanguine. 

The court should not have intervened when it did, dismantling EMTALA’s protections in Idaho, Jackson argued, but neither should it have failed to rule when it had the opportunity to that the federal law preempts Idaho’s ban — and by extension the others like it. “As a practical matter, this Court’s intervention meant that Idaho physicians were forced to step back and watch as their patients suffered, or arrange for their patients to be airlifted out of Idaho,” she wrote. “This months-long catastrophe was completely unnecessary. More to the point, it directly violated federal law, which in our system of government is supreme.”

To Jackson’s mind, the case is clear: “Idaho law prohibits what federal law requires, so to that extent, under the Supremacy Clause, Idaho’s law is pre-empted.”

“We cannot simply wind back the clock to how things were before the Court injected itself into this matter,” she wrote. “It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened.”

The post Alito’s Dissent in Emergency Abortion Case Provides “Building Blocks” for More Extreme Bans appeared first on The Intercept.

When Julian Assange abruptly found himself back in Australia and freedom this week after reaching a plea deal with the U.S. government, I found myself thinking back to my own marathon legal fight with the U.S. government and how it finally and suddenly ended. 

I waged a seven-year legal battle against the George W. Bush administration and later the Obama administration, both of which demanded I reveal the confidential sources I had relied on for story I wrote about a botched CIA operation. I wrote about the CIA operation for the New York Times, but the paper’s editors suppressed the story at the government’s request, so I published it in my 2006 book, “State of War.” The government then launched a leak investigation, subpoenaing me in 2008 to try to force me to testify and reveal my sources. The government threatened that if I didn’t comply, I could be thrown in prison for contempt of court. I refused and fought them all the way to the Supreme Court. 

In 2015, as negative publicity mounted on the Obama administration for its campaign to put a reporter in prison, I was called to attend a court hearing. When the prosecutor asked me whether I would go to prison rather than reveal my sources, I said yes. This time the government backed down, abandoning its efforts to force me to testify. At the end of that hearing, I drove home and had a glass of champagne with my wife to celebrate. I felt free for the first time in seven years.  

My case was part of a broader crackdown on reporters and whistleblowers that began in the post-9/11 era and has continued ever since. The Assange case was part of that same anti-press campaign, one that the government has continued to conduct under both Republican and Democratic administrations.

My personal experience has made me sympathize with Assange, even as so many other Americans have turned on him. My legal fight left me exhausted, both mentally and physically, especially during the long periods when my case was being ignored by the press and the outside world. I learned firsthand that the Justice Department’s primary legal strategy in such cases is to try to bankrupt people and wear them down so that they cut deals rather than go to trial. 

My personal experience has made me sympathize with Assange, even as so many other Americans have turned on him.

I emerged victorious when my case finally ended; I never revealed my sources. But the result of facing down the government for so long made me far more I suspicious of power and much less willing to accept authority.  

I am sure that as Assange returns to Australia to try to put his life back together, he will recognize that he has changed in surprising ways as well.     

To be sure, there are stark differences between Assange’s experience and my own. Assange was a polarizing figure long before he faced prosecution, with enemies on both sides of the American political divide. Republicans hated him for what he did in 2010, when he published classified documents from the Pentagon and the State Department on his WikiLeaks website, while also sharing those documents with mainstream news organizations like The Guardian and the New York Times. Those documents led to a wide range of disclosures about the dark and abusive actions of the United States in the post-9/11 era, from Iraq to Afghanistan and beyond in the global war on terror. 

Democrats, meanwhile, learned to hate Assange for what he did in 2016. Knowingly or not, he served as a go-between for Russian intelligence. Moscow hacked the emails of the Hillary Clinton presidential campaign and the Democratic Party and then turned them over to Assange, who published the emails and related Democratic Party documents on WikiLeaks, while also doling them out to reporters for mainstream news organizations during the 2016 presidential campaign, damaging the Clinton campaign and helping Donald Trump. 

As if all of that wasn’t enough, many others grew to hate him for evading sexual assault charges in Sweden. 

When Assange was first charged in 2019 by the Justice Department under the Espionage Act for his involvement in the 2010 leak of classified documents from the State Department and the U.S. military, very few people, liberal or conservative, came to his defense. Democrats went along with his indictment by the Trump administration, even though he was not charged in connection with the hacking of Democratic Party emails and Russian election interference in 2016. And when Joe Biden became president, his Justice Department continued the Assange prosecution without extending the charges to cover his involvement in the 2016 election.  

Now, after years in prison in Britain while fighting extradition to the United States, Assange has finally cut a deal with the Justice Department. He pleaded guilty this week to violating the Espionage Act and in return was released from prison for the time he has served in Britain. He was able to enter his plea agreement at a federal court in Saipan, a U.S. territory, and then fly directly to Australia. 

Many of his supporters have declared this a victory for Assange. But by obtaining a guilty plea, the Justice Department can also claim victory and ominously may use the same tactics to go after other reporters.  

Assange’s unpopularity means that few have viewed him as a martyr in the cause of press freedom. But he is a victim of an abusive prosecution by a government seeking to silence whistleblowers, and his case has set a dangerous precedent that could severely damage press freedom in the United States.

Few have viewed Assange as a martyr in the cause of press freedom. But he is a victim of an abusive prosecution by a government seeking to silence whistleblowers.

Though his legal saga has come to an end, the role he has played in journalism has never been fully resolved or even accurately defined. 

Assange was a strange hybrid figure in journalism. WikiLeaks, the online organization he co-founded, obtained documents from sources inside governments and other organizations and then made them public, either by publishing them on its own website or by sharing them with major news organizations. Journalists learned to cultivate relationships with Assange in order to get their hands on the secret documents that WikiLeaks had obtained from whistleblowers.

Did that make Assange a go-between, a source, a journalist, or all three rolled into one?  

The Justice Department arbitrarily sought to decide itself how to define Assange’s role by declaring that Assange did not act as a legitimate journalist when he interacted with Chelsea Manning, the former Army analyst and whistleblower who leaked the classified State Department and U.S. military documents to Assange.  

The notion that the U.S. government gets to decide how to define journalism might prove to be the least understood, but most dangerous, precedent set by the long and messy case against Assange. 

The post Like Julian Assange, I Know How It Feels to Be Prosecuted for Acts of Journalism appeared first on The Intercept.

The document “includes comprehensive and excruciating detail” about the CIA’s “program of indefinite secret detention and the use of brutal interrogation techniques,” the late Sen. Dianne Feinstein, who chaired the Senate intelligence committee at the time, wrote in a 2014 summary.

For years, there have been calls to release the full report, including from human rights watchdogs, one of its authors, and even Feinstein and some high-ranking Democrats on the Senate intelligence committee.

“The full report details how the CIA lied to the public, the Congress, the president, and to itself about the information produced by the torture program,” said Tom Blanton, director of the National Security Archive at George Washington University, which has fought to obtain CIA records. “We need to know our real history so we don’t repeat its crimes.”

So far, efforts to obtain the torture report using the federal Freedom of Information Act have been unsuccessful. In late 2016, despite the CIA director’s objections, former President Barack Obama placed a copy in his presidential papers. But that copy is not subject to FOIA until 2029 — 12 years after Obama left office.

The CIA and a handful of federal agencies also have copies of the torture report, although the Trump administration returned several of these to the Senate intelligence committee vaults in 2017.

The Obama, Trump, and Biden administrations all fought strenuously against FOIA requests for these agencies’ copies. In 2017, the Supreme Court declined to consider a challenge from the American Civil Liberties Union. A law professor’s attempt to obtain the report under FOIA is currently pending before the U.S. 2nd Circuit Court of Appeals, following oral argument last fall.

In 2021, my lawyer, Kel McClanahan of National Security Counselors, tried a different tack. We sued the Senate intelligence committee itself and its current chair, Sen. Mark Warner, D-Va., for a copy of the full torture report.

FOIA explicitly does not apply to Congress. Instead, McClanahan argued that the public is entitled to the committee’s copy of the torture report under the common law right of access, a doctrine that is well developed when it comes to court records but less so regarding the records of Congress.

“It is high time that this critical piece of American history is made public,” McClanahan said.

The district court rejected this argument in 2022, ruling that it had no jurisdiction to order the committee to disclose the report because of the U.S. Constitution’s Speech or Debate Clause, which protects members of Congress from being sued for legislative activities. Last week, the D.C. Circuit Court of Appeals upheld that ruling.

“In sum, we conclude that the report is a legislative document, and that the Speech or Debate Clause therefore protects it from compelled disclosure,” wrote Judge Cornelia Pillard for the unanimous panel.

If courts continue declining to wade into the matter, Congress could also take steps to make the torture report available before 2029. Sen. Ron Wyden, D-Ore., who still sits on the intelligence committee, has previously called for it to be declassified. 

“I’m not holding my breath,” Blanton said.

The post More Than 10 Years Later, the Senate Torture Report Is Still Secret appeared first on The Intercept.

“This hearing didn’t have to take place,” he began. Prosecutors had offered a plea deal right up until the day of his 1985 trial; if he’d admitted to abducting, raping, and murdering his young stepdaughter, Layla Cummings, Rojem could have avoided a death sentence. But he refused: “An innocent man doesn’t ever plead guilty to a crime he hasn’t committed.”

Rojem spoke via video link from the Oklahoma State Penitentiary in McAlester. It was June 17, and his execution was 10 days away. At 66, he’d been on death row for virtually his whole adult life. He’d survived for so long in part because appellate courts had deemed his original trial to be unfair, upholding his conviction but twice overturning his death sentence. Meanwhile, fingernail scrapings taken from Cummings revealed an unknown male DNA profile and nothing from Rojem. This was potentially powerful exculpatory evidence. But a third jury, unaware of the DNA testing, resentenced him to die.

Cummings was only 7 years old when she vanished from her mother’s small apartment overnight in the small town of Elk City, located on the border of Western Oklahoma. After a 10-hour search, her body was discovered in a wheat field in an adjacent county on July 7, 1984. Her underwear was stuffed in her mouth, and she had been stabbed to death. Rojem, who had recently divorced Cummings’s mother, quickly became the prime suspect. He had previously been accused of molesting the child, which he denied. Prosecutors said he’d brutally assaulted and killed Cummings out of revenge.

Forty years later, Rojem had no illusions of mercy. He’d seen 124 people escorted to the death chamber. Some had received clemency recommendations only to be rebuffed by the governor, who gets the final say. Since resuming executions in 2021, Gov. Kevin Stitt has overseen the killing of 12 people. He has rejected clemency recommendations from the board three times. Amid overwhelming public pressure, he commuted a single death sentence to life in prison: that of Julius Jones, whose case became a cause célèbre.

Unlike Jones, Rojem is virtually unknown outside Oklahoma. He believes it is due to the nature of the crime. “Nobody wants to talk about it, nobody wants to get involved, nobody wants to seriously help a guy like me because nobody wants to risk lending their credibility to helping a guy with a case like this and be wrong,” Rojem wrote in a message to anti-death penalty activists last year. Although a handful of supporters submitted letters to the board, no one spoke on his behalf at the hearing apart from Rojem’s longtime attorneys.

The hearing lasted two hours. Rojem’s attorneys argued that the case against him had been thin from the start. “I think it would be a travesty to execute him based on the evidence presented in this case,” veteran death penalty attorney Jack Fisher told the board. The state, led by Oklahoma Attorney General Gentner Drummond, rejected that characterization of the evidence while stressing one of the most damning strikes against Rojem. “While our focus here today is on Layla Cummings,” Drummond said, “past is prologue. In 1978, Mr. Rojem raped two girls in Michigan. The evidence was overwhelming. He even pled guilty to one of the charges. But he’s never accepted responsibility. He’s never said he’s sorry.”

Rojem did not claim to be innocent of these crimes. “I wasn’t a good human being for the first part of my life,” he told the board. “And I don’t deny that. But I went to prison. I learned my lesson. And I left all that behind. … My understanding is that this hearing is to decide my fate on only the case before us and nothing else. I did not kidnap Layla. I did not rape Layla. And I did not murder Layla.”

It took just a few minutes for the board to make its decision. The votes were unanimous: five votes to deny clemency. The June 27 execution would move forward.

An Insufficient Defense

If Rojem dies by lethal injection on Thursday, Drummond will almost certainly be in the front row. The attorney general has made it a point to attend each execution carried out on his watch, even as he has fought to slow down the state’s once-frenzied killing schedule, citing the burden on prison staff. Some of his maneuvering has undoubtedly been political: Drummond is widely understood to be planning a gubernatorial run in 2026, and his willingness to disrupt the state’s death penalty system has already cost him. He has especially enraged Oklahoma’s elected district attorneys by going out of his way to save the life of Richard Glossip, most recently filing a brief in his favor before the U.S. Supreme Court.

Drummond’s concern over Glossip’s innocence claim has not extended to others on death row. The same has often been true of people who have been outspoken about the state’s system as a whole. State Rep. Kevin McDugle has decried Oklahoma’s “sad history of pushing cases through the full judicial process and declaring them final and over, only to have many convicted men later exonerated.” Yet he is also firm that sex crimes against children keep him from rejecting the death penalty altogether. “If we have somebody who rapes a baby and slices the baby’s throat and outs him in a shallow grave,” he said at a press conference in 2019, “that person should be put to death immediately.”

The revulsion and outrage surrounding crimes against children make it easier to ignore red flags in a case like Rojem’s. Although prosecutors point out that his conviction has repeatedly been upheld in state and federal court, that is hardly the whole story. In Oklahoma as in the rest of the country, daunting procedural barriers stand in the way of revisiting the evidence in a given death penalty case. In Rojem’s case, the available record reveals significant problems that were either ignored or waved away by appellate courts and that were not brought up at the clemency hearing. Although Rojem’s resentencing trials provided a chance to present mitigating evidence that his original jury did not hear, courts refused to grant an evidentiary hearing to consider evidence that may have challenged the state’s theory of the crime but which his trial attorneys never investigated.

Some of the problems in Rojem’s case reflect the era in which he was tried. At the time of his conviction, Oklahoma’s death penalty had only recently been reinstated following a landmark Supreme Court ruling that forced states to rewrite their death penalty statutes. Although Oklahoma lawmakers were quick to pass a new death penalty law, they did not provide an infrastructure for the wave of indigent defendants who would soon go on trial for their life.

Rojem’s court-appointed defense attorneys were a husband-wife team who had never handled a felony case, let alone a death penalty trial. Like other private lawyers appointed to represent indigent defendants during the 1980s, their pay had been set by the state legislature, which allotted a maximum of “$200.00 for services rendered before the preliminary hearing, $500.00 for services rendered during the preliminary hearing,” and “$2,500.00 for services rendered from the time the defendant is bound over until final disposition in the trial court.” Attorneys who wished to hire an investigator or experts to examine the evidence in the case had to seek permission from the trial court, which routinely denied such requests. In Rojem’s case, not only did the court refuse to provide such funds, post-conviction requests to access the state’s case file were also denied.

The need for Rojem’s defense to investigate the case was especially crucial given law enforcement’s immediate focus on Rojem. Although the state today insists that all leads pointed directly to him, others close to the case felt strongly that this was not true. Among them was Cummings’s own father, who “apparently did not believe that his daughter was murdered by [Rojem],” as a federal court wrote in 1999. Donald Cummings suspected that it was a man on his ex-wife’s side of the family who was the true perpetrator and sought to share his suspicions with law enforcement. “In fact, Mr. Cummings apparently conducted some sort of investigation on his own into the case,” the court found. Just over a year after his daughter’s murder, Donald Cummings took his own life.

Easy Scapegoat

The story of how Rojem became a suspect is told in a 1985 article in the Detroit Free Press, which framed the case as the product of Michigan’s overly lax parole system. Violent people left prison too early, free to wreak havoc across the country. “Every state turns its problems loose on someone else,” one Oklahoma rancher told the paper. “That’s just what old Fidel did with his problems — put ‘em on boats to Florida.”

In fact, Rojem had arrived in Oklahoma to be with Cummings’s mother, whom he’d met inside a Michigan prison, where she was visiting her brother. “She was taken with Rojem, a young prisoner who seemed determined to turn his life around,” according to the paper. They got married shortly after, while Rojem was still incarcerated. He was released in 1982 and went to work in the oil fields in the western part of the state.

But things quickly went downhill. Rojem lost his job, drank heavily, and in 1983 was arrested while drunk driving. According to Cummings’s mother, Rojem was in jail following the arrest when her daughter accused him of abusing her. Nevertheless, she took Rojem back and the couple stayed together until splitting up in May 1984. After that, Rojem continued to see his ex-wife and her kids. Just a few days before Cummings disappeared, Rojem took her and her brother out for ice cream.

After Cummings was found, investigators searched Rojem’s home and took hair samples. Tire tracks at the scene were reportedly matched to his car. But there was no direct physical evidence linking him to the crime. Washita County District Attorney Steve Suttle, who prosecuted the case, conceded to the Detroit Free Press that the evidence was “circumstantial to be sure,” but promised there was much more to come. At trial he introduced condom wrappers found near the child’s body, linking them to a used condom found in Rojem’s home.

Rojem’s roommate swore to the Detroit Free Press that he was incapable of such a grisly crime. “They’re trying to build a case that a warped, twisted, pervert rapist from Michigan killed this little girl in a field. … I don’t believe it, not for a minute. Those kids loved Rick Rojem and Rick Rojem loved those kids.” Yet Cummings’s brother, who was 9 years old when his sister was killed, became a key witness for the prosecution. Although he’d told investigators that he did not see the man who took his little sister, on the stand he testified that he had seen Rojem — a fact that surprised prosecutors and defense attorneys alike.

Ultimately, the denial of funding to investigate Rojem’s case was devastating to his defense. There was no expert witness who could challenge the state’s key forensic evidence: a mangled plastic cup that had been found in the parking lot of the Cummings’ apartment, which allegedly came from a bar where Rojem had been spotted the night of the murder. A partial fingerprint was found on the inside of the cup and, despite its poor quality, matched to Rojem. “What better evidence in the world is there than a fingerprint?” the prosecutor asked the jury. Nor was there anyone to testify about numerous hairs that had been found on Cummings’s body, which were not matched to Rojem, and which Suttle himself conceded were “strange.” The Oklahoma Court of Criminal Appeals would later conclude that the hairs had been deliberately planted “in an apparent attempt to lead investigators” to the wrong suspect.

In his own interview with the Detroit Free Press, Rojem’s lead attorney said his client was an easy scapegoat. “He has a poor record in Michigan and that was enough.”

Failure to Mitigate

Rojem had been on death row for almost 15 years when a federal district court overturned his death sentence. Although the court upheld his conviction, it found that Rojem’s constitutional rights had been violated when the trial judge failed to properly instruct the jury on the need to consider mitigating evidence before sentencing him to death. Rojem’s jury, it found, seemed to be under the impression that they only needed to find at least one aggravating factor and that weighing mitigating factors was optional.

A resentencing trial took place in 2003. By then, Rojem’s appellate attorneys had gotten a chance to test evidence from the case for DNA. They made a significant discovery. Scrapings from underneath Cummings’s fingernails had produced an unknown male profile that excluded their client. At the resentencing trial, Rojem’s lawyers were granted permission to call as a witness the state DNA analyst who did the testing. Despite the powerful evidence, the jury decided that Rojem should die.

But that outcome, too, was reversed on appeal when the Oklahoma Court of Criminal Appeals found that the presiding judge had failed to dismiss prospective jurors who were unfairly biased against Rojem. Defense attorneys had been forced to use their limited peremptory challenges to remove jurors with inappropriate connections to the case, such as a man who had discussed the case with the local sheriff, whom he knew from church. The result was a jury that was skewed against Rojem, the court concluded, sending the case back for resentencing.

The third and last sentencing trial took place in 2007. Rojem’s lawyers presented 15 witnesses, many of whom spoke about Rojem’s positive traits. Among them were Rojem’s death row case manager, who highlighted his good behavior behind bars; a Buddhist minister who described Rojem’s religious conversion and deep faith; and a former Oklahoma state representative who favorably described how Rojem had pushed to win the right for the condemned to donate their organs after being executed.

Unlike the previous resentencing trial, Rojem’s attorneys were barred from introducing the DNA evidence, a major blow. But perhaps just as detrimental was the failure to present evidence of serious childhood trauma that might have led Rojem’s jury to spare his life, regardless of their belief in his guilt. An investigation into Rojem’s early life had revealed that he had been repeatedly molested and raped by a stepbrother beginning when he was 7 years old; the abuse lasted until he was 9. Rojem’s attorneys had planned to present this evidence through an expert who had prepared a PowerPoint presentation. The slides included bullet points describing the abuse. But the presiding judge refused to allow the presentation — and Rojem’s attorneys did not ask the expert any questions to elicit such testimony. Instead, the expert alluded to the abuse briefly during his time on the stand, referring to “other things that happened” to Rojem that had shaped who he’d become as an adult. He was sentenced to death for a third time.

Even if such evidence had not been persuasive to a jury, there is reason to believe that Rojem’s history of childhood trauma might have swayed at least one member of the Pardon and Parole Board to cast a vote to spare his life. The board had previously recommended clemency for a man based in part on the horrific abuse he’d endured as a child. But there was no mention of this history during last week’s hearing. Rojem’s life before and after his conviction was not described at all. 

Instead, the lawyers sought to persuade the board that the forensic evidence in Rojem’s case, which was weak to begin with, was even weaker 40 years later. Fingerprint evidence, like many other forensic practices, has been shown to have little basis in science, attorney Paul McCausland explained: “The infallibility of fingerprint evidence is a myth.” While this is certainly true and highly relevant to Rojem’s case, challenging the validity of longstanding forensic practices has been an uphill battle within the legal system for decades. He was unlikely to persuade the board within a half-hour. And he was no match for the victim’s side, powerfully represented by Cummings’s aunt. “The Cummings family has been forced to endure Mr. Rojem’s depravity for 40 years,” she said. “Layla and Don have both gone on and I have grown old. Nevertheless, it is my hope that through me you will see their suffering.”

Rojem’s attorneys did not respond to interview requests from The Intercept. Many of those who were involved in the original trial are now deceased, including his defense lawyers. Suttle, the original prosecutor, died earlier this year. In a phone message responding to a request for an interview, his widow said it was “a damn shame because he would have been gratified to see the completion of his case.”

Three days after the clemency hearing, Rojem was moved to death watch, the prison cell where he will stay until he is escorted to the execution chamber. In a message to an advocate, he said he was grateful to have had a chance to say his goodbyes. “I’ll neither confirm/deny the presence of mistiness in the ocular region,” he wrote, adding a smiley face.

Rojem’s advocates don’t claim to know the truth of his guilt or innocence. But they insist that his life has value regardless. Most of them call him Daiji, his Buddhist name, and describe him as more concerned with their well-being than his own. In my own brief correspondence with Rojem last year, he seemed at peace with his circumstances, joking wryly about his lack of confidence that state officials would be able to carry out so many executions without messing up. He described a lunch tray that had consisted of instant rice, improperly prepared: “So, if you can’t follow the instructions on the instant rice bag…”

He wrote about a former cellmate who had recently been executed. Rojem considered him to be a good, decent man even though he was regarded as a monster by the rest of the world. He knew this was how he was seen, too. “I’ve lost many friends since 1985.”

Update: June 27, 2024
Richard Rojem Jr. was executed by lethal injection on June 27. His time of death was 10:16 a.m. CT. Asked if he had any last words, Rojem said, “I don’t. I’ve said my goodbyes.”

The post Oklahoma Prepares to Kill Another Man Who Says He’s Innocent appeared first on The Intercept.

The agreement would bring to an end Assange’s lengthy standoff with the White House, which has sparked diplomatic tensions and global concern about U.S. hypocrisy when it comes to advancing freedom of the press.

In 2018, the Justice Department indicted Assange in federal court in Alexandria, Virginia, on charges of hacking and unauthorized access to classified information. After spending almost seven years living in the Ecuadorian Embassy in London, he was arrested in 2019 for extradition on the U.S. charges. Last month, a London court ruled Assange could continue to appeal his extradition. 

On Monday, federal prosecutors filed updated charges with the U.S. district court in the Northern Mariana Islands, along with a letter requesting a hearing on Tuesday. According to the letter, prosecutors expect Assange to plead guilty. The remote district was selected “in light of the defendant’s opposition to traveling to the continental United States to enter his guilty plea,” as well as its proximity to Australia, the letter states.

“We appreciate the Court accommodating these plea and sentencing proceedings on a single day,” prosecutors wrote to the district’s chief judge, Ramona V. Manglona, who scheduled a hearing for 9 a.m. on Tuesday, according to the case docket.

The updated charging documents allege Assange “unlawfully conspired with Chelsea Manning” to access and disseminate classified information without lawful access between 2009 and 2011. In January 2017, just before leaving office, former President Barack Obama commuted Manning’s sentence after she was behind bars for seven years. 

As recently as April, President Joe Biden said he was “considering” dropping the charges and extradition attempt against Assange, which press freedom organizations in the U.S. and around the world urged him to do. 

After Biden’s confirmation that negotiations were underway, The Intercept asked the State Department about the progress, drawing the first substantive answer the administration had offered on the question, even as it left little clarity: “One of the crimes that Julian Assange is charged with is helping Chelsea Manning hack into government systems,” State Department spokesperson Matthew Miller said in April, “which as far as I’m aware has never been considered a legitimate journalistic practice.” 

Pressure from Australia played a major role in the politics of the prosecution, with the Australian government coming out in opposition to Assange’s extradition to the United States. Australian lawmakers traveled to the United States to lobby their American counterparts, and pressed upon U.S. Ambassador Caroline Kennedy to intervene. Last August, Kennedy floated the possibility of the plea deal now going into effect. 

Press freedom advocates welcomed the end of the Assange saga but worried about the precedent it sets. 

“A plea deal would avert the worst-case scenario for press freedom, but this deal contemplates that Assange will have served five years in prison for activities that journalists engage in every day,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University.

Related

Why You Should Care About the Extradition of Julian Assange

“It’s good news that the DOJ is putting an end to this embarrassing saga,” said Seth Stern, advocacy director for Freedom of the Press Foundation. “The plea deal won’t have the precedential effect of a court ruling, but it will still hang over the heads of national security reporters for years to come.”

“The administration could’ve easily just dropped the case but chose to instead legitimize the criminalization of routine journalistic conduct and encourage future administrations to follow suit,” Stern said. “And they made that choice knowing that Donald Trump would love nothing more than to find a way to throw journalists in jail.”

Assange’s wife, Stella, struck a more triumphant tone after news broke about the plea deal. “Julian is free!!!!” she tweeted, along with a video of Assange boarding a plane. WikiLeaks tweeted that Assange “left Belmarsh maximum security prison on the morning of 24 June, after having spent 1901 days there.”

WikiLeaks’ publication of over 250,000 unredacted State Department cables beginning in 2010 was one of the most consequential data breaches in U.S. government history. In addition to the cables, which have continued to be a resource for journalists, activists, and anti-corruption investigators around the world, WikiLeaks also published damning information revealing U.S. conduct in the war on terror, including footage from a U.S. military helicopter showing the killing of civilians and Reuters journalists during a 2007 strike in Baghdad, Iraq.

The post Julian Assange Strikes Plea Deal, Will Return to Australia  appeared first on The Intercept.

John Criscio, the president of Absolute Standards, wrote to two Connecticut legislators last month that his company stopped manufacturing pentobarbital in December 2020. “We have no intention to resume any production or sale of pentobarbital,” Criscio added. 

The one-page letter, which has not previously been reported on, is the first formal acknowledgment by Criscio that his small family business was making pentobarbital, a barbiturate that has been used both by itself and in combination with other drugs to carry out lethal injection executions. 

The letter notes that the company had been registered with the Drug Enforcement Agency to manufacture pentobarbital, and it makes no mention of whether the company had provided execution drugs to the federal Bureau of Prisons. On two previous occasions, Criscio denied to The Intercept that his company had done so. The Intercept called Absolute Standards multiple times on Friday and was told that Criscio was not around. The company did not respond to an email requesting comment, nor did Criscio respond to messages sent to his personal email account. 

Related

Can Conservatives Expand the Death Penalty Using the “Trigger Law” Playbook?

Conservative policy leaders have been calling for an escalation of federal executions if Donald Trump retakes the White House. The presumptive Republican presidential nominee has fantasized about expanding the list of crimes eligible for the death penalty and executing people who deal drugs. In a nearly 900-page policy wishlist published last year, conservative groups recommended that Trump should execute all of the 40 people on federal death row if elected.

But as pharmaceutical manufacturers have restricted the use of their medicines in executions, it’s become increasingly difficult for prison officials to obtain drugs like pentobarbital. The Bureau of Prisons spent years searching for a pentobarbital supplier, as The Intercept previously reported. The government obtained its first batch of the active ingredient in October 2018, according to a legal filing. While it’s unknown how many suppliers the federal government had, Absolute Standards’ decision to stop producing the lethal drug could impede future executions. 

In the wake of news reports this spring linking Absolute Standards to the federal executions, the company faced questions from Connecticut lawmakers and a pressure campaign from anti-death penalty activists. Bianca Tylek, the executive director of Worth Rises, an activist group that campaigned with Death Penalty Action to stop Absolute Standards from supplying the execution drug, said she would “cautiously, optimistically” trust Criscio’s pledge to stop making pentobarbital but would also remain “on watch.”

“It is the first response that anyone has gotten from this company that has done so much harm, and a response in which they actually say they’re going to stop. And so that’s meaningful, that’s important,” Tylek said. 

But, she continued, “they stopped just short of saying, ‘We would never do this again,’ and truly making that a long-standing or irrevocable statement to some extent.”

Shielded From Accountability

The Trump administration killed 13 people at the federal death chamber in Terre Haute, Indiana, beginning in July 2020. In April, comedy news host John Oliver named Absolute Standards as the company that had supplied the Bureau of Prisons with execution drugs.

Related

“Little Home Market”: The Connecticut Company Accused of Fueling an Execution Spree

The Intercept subsequently revealed additional details about the company. We reported that Criscio and the company’s director, Stephen Arpie, told a source who met with the pair about obtaining lethal drugs that Absolute Standards produced the active pharmaceutical ingredient for pentobarbital that was used in the federal executions. A separate unnamed pharmacy then used that ingredient, or API, to create an injectable solution that would stop prisoners’ hearts.

That same month, Worth Rises and Death Penalty Action launched a public campaign to stop Absolute Standards from participating in executions.

Approximately 1,900 people sent 5,000 emails to Absolute Standards through a form created by the organizations, Tylek said. Activists also left negative Google reviews. “Perfect place to get execution drugs,” wrote one reviewer, who gave the company one star.

Connecticut state Sen. Saud Anwar and Rep. Josh Elliott, meanwhile, asked Criscio to stop making execution drugs and requested a meeting about his company’s activities, Anwar told The Intercept. 

Criscio, in his letter to Anwar and Elliott, declined a meeting, writing that he had been “inundated with vulgar, and sometimes threatening, attacks by telephone, letter, email, and social media.” 

He added, “Although some reports have given the impression that we acted illegally or even purposefully subverted the law, nothing could be further from the truth.”

Anwar and Elliott plan to introduce a bill that would make it illegal for Connecticut companies to participate in the death penalty. (The state abolished the death penalty in 2012.)

“If the commitment is there, I respect that,” Anwar told The Intercept, referring to Absolute Standards. “I’m more interested in making it illegal going forward. I think that laws last longer than legislators and issues and I feel that irrespective of their commitment, I am interested in having a law in the future … to make sure that we don’t have another similar situation that we learn about indirectly or directly five years, 10 years, 20 years from now.”

He said he hopes the legislature will pass the bill by the end of the 2025 session. If approved, it would be the first legislation across the country banning the sale of drugs or materials for use in an execution, according to Robin M. Maher, the executive director of the Death Penalty Information Center.

Since 2021, Connecticut officials have been concerned that Absolute Standards was selling its drugs to states for executions. After a staffer for U.S. Rep. Rosa DeLauro, D-Conn., sounded the alarm about the company’s suspected role in the federal executions in 2021, the state’s attorney general William Tong wrote in a letter to Absolute Standards that providing drugs for executions “is contrary to the values and policies of this state.”

For more than a decade, pharmaceutical producers have refused to sell pentobarbital and other drugs for use in executions. Despite these efforts, agencies have found ways to obtain substances needed for lethal injection. Last year, both Idaho and South Carolina announced that, after years of searching, they had obtained pentobarbital for executions.

States have gone to great lengths to shield the identities of their drug suppliers. Since 2011, more than a dozen states have enacted laws in efforts to hide information about their execution processes. 

After reviewing Criscio’s letter, a former BOP official familiar with the agency’s yearslong search for execution drugs wrote in an email to The Intercept that they were not surprised that Absolute Standards reported receiving threats. “That is why BOP and DOJ attempted to keep their name out of the media as long as possible.” 

The revelation also raises a new question, the former official continued. “I guess if they are not manufacturing pentobarbital any more, is there another supplier that stepped up? Who is providing it to the states that are using it?”

The post Company Linked to Federal Execution Spree Says It Will No Longer Produce Key Drug appeared first on The Intercept.

Republicans and their allies are eager to expand capital punishment, and U.S. Supreme Court cases that currently limit the crimes that can lead to executions are a prime target.

Conservatives’ eagerness to create more capital crimes is laid out in the sprawling Project 2025 manifesto, a road map for the first 180 days of “the next conservative administration.” Project 2025 urges the next administration — presumably, a second Trump White House — to throw the Justice Department’s weight into overturning the constitutional limits established by the Supreme Court.

In the meantime, Republican legislators are laying the groundwork to expand the death penalty to crimes beyond murder by passing “trigger laws” that would spring into effect once these Supreme Court Court guardrails are eliminated.

“They have a very high hill to climb.”

So far, Florida and Tennessee have enacted laws that allow prosecutors to seek the death penalty for child sex abuse. The laws’ proponents flaunted the contradiction with a Supreme Court decision from 2008, Kennedy v. Louisiana, which bars the death penalty for crimes other than murder based on the Eighth Amendment’s prohibition of “cruel and unusual punishments.”

Similar bills have been introduced by conservatives in Congress and a handful of other states, with an eye toward challenging the Supreme Court’s Kennedy ruling just as state laws challenged Roe to overturn abortion rights.

“To the extent there is an effort by folks in the state systems to challenge Kennedy,” said Robin Maher, executive director of the Death Penalty Information Center, “they have a very high hill to climb.”

Project 2025 shows Republicans are gearing up for the climb.

The Kennedy Precedent

The Kennedy case, decided in 2008, saw a divided Supreme Court strike down a state law that allowed a jury to impose the death penalty for rape of a child under 12 years old.

The majority’s decision built on decades of precedent interpreting the Eighth Amendment under “evolving standards of decency” — an approach that stands in firm opposition to conservative “originalist” jurisprudence.

The five-justice majority weighed heavily the risk of wrongfully executing offenders based on a child’s testimony and the documented negative effect on victims’ willingness to come forward if the death penalty is on the table for their abusers.

Under the Kennedy decision, the death penalty is unconstitutional in “instances where the victim’s life was not taken.” The court left open the possibility that execution might still be permissible for non-homicide crimes against the state, such as treason, espionage, or terrorism.

Justice Samuel Alito wrote for the conservative dissenters — including Chief Justice John Roberts, Justice Clarence Thomas, and late Justice Antonin Scalia — criticizing earlier death penalty rulings. Alito pointed to a handful of states that had enacted capital child-rape laws, which he suggested might be “the beginning of a new evolutionary line” for interpreting the Eighth Amendment.

At the time, the Kennedy ruling drew plenty of criticism, including from then-Sen. Barack Obama in the lead-up to the 2008 Democratic National Convention.

Public opinion, though, has shifted against capital punishment since Kennedy was decided, most starkly among Democrats and independents, according to Gallup polls. In 2008, a slight majority of Democrats and two-thirds of independents were in favor of the death penalty as a punishment for murder, compared to just under a third of Democrats and about half of independents in 2023.

By comparison, Republicans have consistently endorsed the death penalty, with support hovering around 80 percent since 2000.

On the campaign trail in 2020, Joe Biden promised to end the federal death penalty, but his Justice Department has sought death sentences for at least two defendants and urged appellate courts to uphold earlier sentences.

Project 2025’s “Priority”

Like Roe, Kennedy is a reviled decision among many conservatives, not least because of its non-originalist approach to the Eighth Amendment. And if Donald Trump wins the election in November, the conservative legal movement hopes he will prioritize overturning Kennedy.

The Project 2025 manifesto, spearheaded by the right-wing Heritage Foundation, is a 900-page document compiled by a “who’s who” of the conservative legal movement. It touches on everything from gutting the administrative state to restoring “the family as the centerpiece of American life.”

The manifesto’s chapter on the Justice Department was drafted by Gene Hamilton, the vice president and general counsel of America First Legal who served in the Trump DOJ. Hamilton calls capital punishment a “sensitive matter” while urging the “next conservative Administration” to “do everything possible” to execute all prisoners currently on death row.

Project 2025 also calls for pushing the limits of capital punishment. The Justice Department should “pursue the death penalty for applicable crimes,” Hamilton writes, “particularly heinous crimes involving violence and sexual abuse of children—until Congress says otherwise through legislation.”

In a footnote, the Kennedy decision is quietly raised as a target.

“This could require seeking the Supreme Court to overrule Kennedy v. Louisiana,” reads the footnote, “but the department should place a priority on doing so.”

Maher, of the Death Penalty Information Center, told The Intercept this section of Project 2025’s playbook puzzled her.

“Congress has spoken very clearly, as has the Supreme Court,” about the limits of the death penalty, she said.

“There’s no evidence the public is clamoring for more executions.”

“Roe was about a single issue, but this is about a standard of review that has been applied to decades of cases, anything that applies to the death penalty,” Maher said. “It would be the kind of abrupt change that would be unprecedented.”

“There’s no evidence the public is clamoring for more executions.”

Legislators Gunning for Kennedy

Conservative legislators are eager to tee up legal challenges to the Kennedy decision. Much of the pro-execution momentum so far has come from Florida Republicans.

In early May 2023, shortly before announcing his ill-fated bid for the Republican presidential nomination, Florida Gov. Ron DeSantis signed a trigger law that makes child rape a crime eligible for the death penalty “notwithstanding existing case law which holds such a sentence is unconstitutional.” The law says Kennedy was “wrongly decided and an egregious infringement of the states’ power to punish the most heinous of crimes.”

“This bill sets up a procedure to be able to challenge that precedent,” DeSantis told reporters at the time, “and to be able to say that in Florida we think that the worst of the worst crimes deserve the worst of the worst punishment.”

In December, local prosecutors announced the first attempt under the new Florida law to seek the death penalty for a man indicted for child sex abuse, which DeSantis lauded as the potential “first case to challenge SCOTUS.” Prosecutors later accepted a plea deal under which the defendant accepted a life sentence in prison. Last month, a Florida appellate judge noted the new legislation and urged Kennedy to be overturned.

Another Florida Republican has sponsored similar legislation in Congress. In April, Rep. Anna Paulina Luna, introduced a pair of bills that would turn various child sex abuse offenses into capital crimes, including possession of child pornography.

“I don’t know why we’re going to go down this path of passing something that’s blatantly unconstitutional. Because that’s what it is.”

“If someone commits horrific crimes against children, they deserve the death penalty or life in prison,” Luna said in a statement to The Intercept. “The Supreme Court did not make the right decision in Kennedy v. Louisiana.”

Earlier this year, Tennessee followed Florida’s lead. In May, Republican Gov. Bill Lee quietly signed a law to make aggravated child rape a capital offense, which goes into effect on July 1.

During debate in April in the Tennessee state Senate, Kennedy came up frequently. Sen. Ken Yager, one of the bill’s Republican sponsors, read from Alito’s dissent and affirmed that his aim was partly to overrule Kennedy.

“We have a bill that is unquestionably unconstitutional,” said Sen. Jeff Yarbro, a Democrat from Nashville. “I don’t know why we’re going to go down this path of passing something that’s blatantly unconstitutional. Because that’s what it is.”

Sen. Janice Bowling, a Republican, suggested her colleagues should think of overturning Kennedy “in terms of Roe v. Wade.”

“Maybe it’s time for this to be changed,” Bowling said. “And maybe the atmosphere in the Supreme Court is different now. We’re not violating the Constitution. We’re simply challenging a ruling.”

Republicans in a handful of other states have recently floated similar legislation. One bill introduced in South Carolina in December, echoing Florida’s law, calls Kennedy “wrongly decided” and characterizes the decision as infringing “upon the power of the State to punish what it determines to be a monstrous and evil crime and punish those convicted as the State determines to be necessary and just.”

The South Carolina bill’s sponsor, state Rep. Jordan Pace, told The Intercept he used the Florida statute as a model. Asked whether he also hoped to challenge Kennedy, Pace said, “The aim is to provide swift and righteous justice for victims and their families.”

Bills that contradict Kennedy were also introduced last year in Arkansas, New Mexico, Missouri, Iowa, Idaho, and South Dakota.

For now, at least, Maher is skeptical that the trigger law playbook that tossed out Roe would also work to overrule Kennedy and other death penalty precedent. She said, “We’re all watching very closely to see what the court is willing to do.”

The post Can Conservatives Expand the Death Penalty Using the “Trigger Law” Playbook? appeared first on The Intercept.

Federal prosecutors are so consumed by my efforts to report on a terrorism court case that they accused me in a recent filing of having “improper motives.” They said that, by doing routine reporting, I was somehow colluding with a terrorism defendant to “taint the jury pool and undermine the fairness of the trial.”

These dangerous claims are the subject of an evidentiary hearing in U.S. District Court in Detroit on Thursday.

My reporting so far suggests potential constitutional violations.

The attack by the Justice Department should be seen for what it is: a breathtaking assault against journalism by the Biden administration.

Although President Joe Biden boasts that his administration defends press freedoms around the world, his Justice Department’s public claims are an egregious attack against me filled with baseless assumptions and statements taken wildly out of context.

Prosecutors appear to have subjected me to this attack for no reason other than that I was doing journalism in the public interest. (Lawyers for The Intercept submitted a letter to U.S. District Judge Jonathan J. C. Grey and will be present at the hearing Thursday.)

While shocking for its content, the government’s attack on me is not entirely surprising. The case I’m investigating raises thorny issues about the FBI’s conduct, and federal prosecutors have complained in filings and court hearings over the past year about my contact with the defendant in the case.

My reporting so far suggests that the terrorism case involves questionable dealings between federal and local law enforcement agents; intrusive surveillance over a period of years that yielded little evidence; and even potential constitutional violations. (The prosecutors in the case did not immediately respond to requests for comment.)

For digging into this, Biden’s Justice Department is accusing me of having ulterior motives — and using the allegation as an excuse to keep information from the public.

FBI on a Local Robbery Case?

My involvement with this saga began five years ago, when I was reporting on a related terrorism case. I’d been secretly communicating with Russell Dennison, an American who had traveled to Syria and joined the Islamic State terrorist group.

Until his 2019 killing by an airstrike in eastern Syria, Dennison had sent me hours of recordings over more than six months, describing his life and involvement with ISIS as the so-called caliphate collapsed around him. Dennison’s recordings and my reporting about them became “American ISIS,” an eight-part documentary podcast for The Intercept and Audible.

After Dennison’s death, I spent months tracking down people he’d known, including those he mentioned in his recordings. One was a slender Iraqi-born Michigan man named Aws Naser.

Naser had his own story arc. He’d come to the United States from Iraq as a boy before the 9/11 attacks and, after graduating high school, returned to Iraq as a U.S. military translator. His path crossed with Dennison’s when the latter was still living in Florida and Naser had returned to Michigan. The two met through YouTube, and their paths, even after Dennison’s death, have crisscrossed to this day.

After the FBI arrested one of his friends on terrorism charges in 2012, Dennison flew to Michigan and stayed with Naser before traveling to Iraq. Naser visited Dennison in Iraq later that year, though at the time, Dennison wasn’t associated with ISIS or other terrorist groups.

When Naser returned to the U.S. from the trip, he found himself subjected to intense FBI questioning and surveillance. And he wasn’t alone. Dennison was an unwitting pawn for the FBI. Anyone who communicated with him became a target.

At the time, based on the FBI scrutiny, Naser falsely assumed that Dennison had been working for FBI. In truth, the FBI was struggling to build a case against Naser.

Then Naser gave the FBI an opening. He had a dispute with his boss at a convenience store. Frustrated over unpaid wages, Naser pepper-sprayed a co-worker and took what he believed he was owed from the cash register. He was arrested for armed robbery.

Following his arrest, the FBI obtained the search warrant for Naser’s home — not the local police, as you’d expect.

Following his arrest, the FBI obtained the search warrant for Naser’s home — not the local police, as you’d expect in a state robbery investigation.

The evidence the FBI collected from the search, which I obtained from state prosecutors, made clear that federal agents weren’t interested in the robbery case. Instead, the FBI took photos of Naser’s passport, plane tickets, business cards for a taxi driver and a jeweler in Iraq, and a piece of paper with a handwritten phone number for Dennison’s mother in Florida.

Naser was found guilty of armed robbery at trial and sentenced to up to 20 years in prison, but the FBI wasn’t finished with him.

The Dennison Connection

Naser was in state prison for this robbery conviction when I first contacted him in 2019. He had been sent back behind bars following parole violations.

I explained to him that Dennison wasn’t an FBI informant, as he’d once thought, but instead had become an ISIS fighter who was wanted by the FBI.

“This actually makes sense because the FBI, every time they’ve met me, every time they’ve interviewed me, every time they raided me, the only thing they’re asking me about is Dennison,” Naser told me in 2019.

I included the interviews with Naser in prison and described how his story intersected with Dennison’s in “American ISIS,” which was released in July 2021. And I never expected to talk to Naser again.

Then, in November 2022, the Justice Department charged Naser with attempting to provide material support to ISIS. (He denies the charges.)

The initial charging documents were unusually sparse; there was no explanation of how or when Naser allegedly supported ISIS. One thing, though, seemed clear: The indictment had to be related to Dennison.

Naser and I began talking by phone again in February 2023. He had been transferred from a state prison to a federal detention center to face the terrorism charges.

Over the last 16 months, I’ve recorded more than 11 hours of phone interviews with Naser, part of an ongoing effort to produce an audio documentary about his case.

And I wasn’t the only one recording. The Justice Department was listening to our calls.

“Gleefully Shared Information”

“Now, listen, this phone call is being recorded,” Naser told me in our first conversation after his federal indictment.

At the time, Naser had been given some of the evidence in his case. While a protective order prohibited documents and recordings from being given to others, such as journalists, nothing prohibited Naser from summarizing to me the contents of the evidence against him.

In that initial conversation, Naser told me that the evidence included a sealed indictment against Dennison. As he received more evidence in his case, he’d call me to describe the documents.

The Justice Department, however, didn’t like Naser’s calls to me.

In April 2023, federal prosecutors complained in a court filing that Naser “gleefully shared information” with me. My calls with Naser became a central focus of a hearing in June 2023, during which prosecutors admitted that the protective order did not prohibit Naser from talking to me about the evidence in his case.

“He did not improperly distribute this information,” said Assistant U.S. Attorney Dmitriy Slavin in the June 2023 hearing. “Because information that is general discovery which is still concerning this case, there’s no limit on him sharing that information with the media, and he has made it his mission to share that information with the media.”

For a time, the Justice Department and Naser played chicken. Prosecutors refused to turn over new evidence, and in turn, Naser refused to accept a modified protective order that would bar him from talking to me.

During this time, the government’s case against Naser dribbled out slowly in filings. Prosecutors allege that he boasted of killing a gold merchant in Iraq in an online extremist forum where a government informant was present — though it’s unclear whether prosecutors have evidence to support the claim — and that Naser possessed ISIS propaganda, drones, and household chemicals.

Fourth Amendment Violations?

Evidence in Naser’s case raises questions about whether federal agents violated Naser’s constitutional rights more than seven years ago. My recent efforts to find out more about these potential violations of the Fourth Amendment, which protect people from unreasonable search and seizure, led to the Justice Department’s attacks on me.

Despite years of investigation, the FBI could not build a strong enough case against Naser to obtain a search warrant. Enter the local authorities. Naser had been released on parole in 2016. As a parolee, Naser was subject to searches at any time by a parole officer.

The following year, a parole officer Naser had never encountered before did make such a search: He took Naser’s phone and captured a forensic image of it, essentially a copy of all the data from the device. The parole officer then provided the data to the FBI. The same parole officer returned to Naser a few months later and seized a second phone for the FBI.

Federal agents used the contents of the phones to justify six new search warrants. Naser’s lawyers describe the phone searches as a “convenient workaround for the FBI” that created a “prolonged erasure of his Fourth Amendment rights.” In describing this alleged constitutional violation, Naser’s lawyers filed under seal several FBI reports related to the partnership with the parole officer.

In phone calls in April, Naser told me that these FBI reports describe an improper arrangement between federal agents and the parole officer. According to Naser, the reports state that the parole officer’s daughter had reportedly been the victim of a sexual assault that had gone unsolved and that he wanted FBI agents to investigate the case. Naser, describing the alleged arrangement, told me: “In return for that help, he was going to help them with me.”

“Improper Motives”

A few weeks after Naser told me about these reports, his lawyers filed a motion to unseal them. The government responded on May 29 with an attack against me, alleging that I have “improper motives” and intend to release a “one-sided” and “sensationalized” work of journalism prior to the trial that will “taint the jury.”

To support its claim that I have “improper motives,” the Justice Department wrote: “Naser and Aaronson discussed a sexual assault involving a witness’s family member and expressed an interest in learning more background details connected to it.”

Of course, prosecutors omitted the key context: that this sexual assault case appears to be at the center of a reported quid pro quo that may have violated Naser’s constitutional rights and raises larger questions about the FBI’s partnerships with state and local police agencies in terrorism investigations.

Why is the Justice Department so concerned about the contents of the sealed FBI reports that prosecutors have resorted to public attacks against a journalist?

The Justice Department has argued — and will argue in the hearing Thursday — that the information I have been seeking, through my interviews with Naser and other reporting efforts, is not of significant public interest. This is demonstrably false.

Parts of Naser’s story have already been told in my documentary podcast “American ISIS” and in Wall Street Journal reporter Brett Forrest’s book “Lost Son: An American Family Trapped Inside the FBI’s Secret Wars.” In addition, the Detroit News has covered the case’s ongoing proceedings.

More significantly, the Justice Department’s attacks against me raise the public interest value of these FBI reports further: Why is the Justice Department so concerned about the contents of the sealed FBI reports that prosecutors have resorted to public attacks against the journalist who has been working to obtain that information?

If the Biden administration is serious about protecting press freedoms, officials from Washington might want to have a stern talk with the U.S. Attorney’s Office in Detroit.

Meanwhile, I haven’t given up my ambitions for a larger work about Naser’s case. Maybe I should thank federal prosecutors for the publicity.

The post Federal Prosecutors Attacked Me for My Reporting — and They’re Doing It to Hide Info From the Public appeared first on The Intercept.

The Intercept filed rebuttals with the state attorney general’s office, which must sign off on such nondisclosures under the law, arguing that the exemptions invoked do not apply.

Leo made a $15 million commitment in 2022 to Texas A&M Law to establish the Center on the Structural Constitution, The Intercept reported last month.

The co-chair of the Federalist Society, whose activism and philanthropic efforts helped foment a rightward lurch in the judiciary, including the Supreme Court, had previously workshopped a center with an almost identical name at Cornell Law School, his alma mater. But opposition from Cornell faculty ultimately killed the proposal.

Through a representative, Leo previously declined to answer The Intercept’s questions about the Texas A&M center, including when he first approached the school with the idea. Similarly, both Texas A&M and its law school declined to answer questions about the donation.

However, former Texas A&M President Michael Young, who now teaches at the law school and tapped Leo to serve as an external adviser for his own research institute, confirmed that the donation to establish the Center on the Structural Constitution came from Leo.

The Intercept sent Texas A&M multiple public records requests about the center and Leo’s donation, which was “among the largest donations ever received by Texas A&M University,” according to an announcement from Texas A&M Law, which did not name the donor.

The Reappearing Agreement

In response to a request for the gift agreement signed by the law school for the donation, the university said it could not locate any documents.

Large donations to the Texas A&M Foundation — an affiliated nonprofit which received the first $5 million installment for the center in 2022, according to tax records — require written agreements, according to foundation rules. Asked about the requirement, the university provided a copy of the agreement, with the donor’s name redacted.

R. Brooks Moore, deputy general counsel for Texas A&M, quibbled in response to questions from The Intercept that the earlier response “was not a comment on the existence of a particular gift agreement or agreements.”

The agreement was between the donor and the Texas A&M Foundation, as opposed to between the donor and the university itself, wrote Moore: “Texas A&M does not control the Texas A&M Foundation or its records/information. Therefore, Texas A&M’s response is accurate and in compliance with the Texas Public Information Act.”

The redacted gift agreement provided to The Intercept, however, was signed by then-Texas A&M President M. Katherine Banks and Robert Ahdieh, the law school’s current dean. Under the agreement, Texas A&M committed to seek approval from the Board of Regents to establish the center.

According to the agreement, the Texas A&M Foundation and university also said they would not “publicly name or recognize the Donor without prior express approval.”

The Disappearing Emails

Now, the university is fighting to withhold dozens of the law school dean’s emails about the center.

According to responses to The Intercept’s records requests, Ahdieh exchanged emails with Leo himself at some point since 2019. And, since January 2022, Ahdieh also sent or received dozens of emails related to Leo’s primary dark-money fund, the Marble Freedom Trust.

In letters to the Texas attorney general’s office, the school claims some of these emails are protected under state laws that shield competitive bidding processes and the identities of donors to higher education institutions.

“The university has not disclosed or confirmed the identity of the donor or donors making any gift that is mentioned in the article.”

“The university has not disclosed or confirmed the identity of the donor or donors making any gift that is mentioned in the article,” Moore wrote, noting The Intercept’s reporting.

These exemptions do not apply, The Intercept’s filings contend, since Leo already committed to fund the center and has already been identified as the donor through extensive reporting. (In addition to filing the requests and responses in the course of my reporting for The Intercept, I am also one of its attorneys.)

Texas A&M also requested authorization to withhold other emails to and from Ahdieh under an exemption from the public records law that protects policymaking deliberations. This provision does not apply for many reasons, The Intercept argued, including that the law school has already secured funding for the center and hired its first director.

The post Texas A&M Wants to Keep Emails About Leonard Leo’s $15 Million Gift Secret appeared first on The Intercept.

On Sunday, some current faculty members at Columbia University learned through a news article that all new students and faculty at the school will be mandated to go through an orientation on antisemitism. The plan was not announced in any direct communications from the university.

Rather, it was reported by Israeli newspaper Haaretz, in a story about the university’s task force on antisemitism.

Formed last November as political pressure mounted against criticism of Israel on campuses, the task force set out to examine specific notions of bigotry at the university, which has become a flashpoint of protests against Israel’s war on Gaza — often followed by violent police crackdowns.

The plan was not announced in any direct communications from the university. Rather, it was reported by Israeli newspaper Haaretz.

Numerous participants in the antisemitism task force, including its three co-chairs — Columbia faculty members, many of whom are outspoken Israel supporters — openly discussed the not-yet published report with the newspaper before any such information was shared with the university’s community, or even their colleagues.

The antisemitism task force will release a report in the coming weeks detailing accounts from students who submitted written testimony or participated in “listening sessions,” according to Haaretz. All the anecdotes, equally, were shared without any attribution except that they were anonymously gathered by the task force — a body with pro-Israel leadership that has been controversial since its inception last November.

The article also revealed that a mandatory antisemitism orientation would be developed. The trainings will include expressions of anti-Zionism as examples of possible antisemitism, touching on a controversy that has enveloped the protests, crackdowns, and larger national conversation about Israel–Palestine.

Anecdotes that the task force shared with Haaretz include disturbing examples of antisemitism, like a professor reportedly telling a class “to avoid reading mainstream media, declaring that ‘it is owned by Jews.’”

Examples like these have been widely reported, but they are fewer and further between than the explicit and tacit conflation of anti-Zionism with antisemitism that pervade task force members’ comments — a conflation that has helped lead to dire consequences, including arrests, for thousands of students protesting Israel’s war.

A Dangerous Conflation

Up until this point, the chairs and participants in the antisemitism task force have demurred from offering a working definition of antisemitism. Now, with the new orientation planned, task force members now said that a definition of antisemitism will be put forward — and it will include anti-Zionism.

According to the Haaretz article, the task force’s antisemitism definition “is expected to determine that statements calling for the destruction and death of Israel and Zionism can be considered antisemitic, while criticism of the Israeli government cannot.” It mirrors, then, the contested and nationalist International Holocaust Remembrance Alliance, IHRA, definition, which has been championed by Republicans and other conservative Zionists, including President Joe Biden.

“This definition is designed to inform faculty and students about what can offend Jewish people and which types of statements can cause pain and discomfort,” Haaretz reported. “An educational definition will not infringe upon freedom of speech on campus or prohibit potentially antisemitic phrases.”

Given that aggressive police raids at Columbia and Barnard, its women’s college, that saw student protesters arrested and the shutdown of the entire campus, the claim that free speech on campus will not be repressed beggars belief. Even if the only use of the definition is during mandatory orientations on antisemitism, its deployment inscribes the dangerous antisemitism/anti-Zionism conflation into campus culture. Views of Palestinians, anti-Zionist Jews, and the many others in the community who express criticism of Israel are bound to be delegitimized.

Even in their own telling to Haaretz, task force members make clear that their interest involved validating pro-Israel students’ discomfort as examples of widespread antisemitism. “We heard from students who feel their identity, values and very existence on campus have been under attack,” said task force co-chair and political science professor Ester Fuchs.

There can be no doubt, as I’ve previously noted, that students for whom Israel is central to their Jewish identity have felt immense discomfort in the months of protests against Israel’s violence. This discomfort is not, however, proof of real threat. Nor is it grounds to continue to uphold the dangerous claim that criticism of Israel, even criticism of Israel as an ethno-state, is an attack against Jewish people.

All professors at universities nationwide should be committed to all of our students’ safety and well-being; this does not mean we must accept all feelings of fear and discomfort as legitimately grounded in persecution and oppression.

A definition of antisemitism, even for purely educational purposes, that insists on defending Israel as an ethno-state will only serve to further silence Palestinian and pro-Palestinian voices, while rendering real cases of antisemitism — Jewish people targeted for being Jewish — harder to target and fight.

We would not, for instance, validate the fears of a white student brought up to see Black people as a threat — an important counterfactual, given a particularly striking comment by task force member Gil Zussman, an Israeli electrical engineering professor, about the Black Lives Matter movement.

“If, for example, a student group were to use an abhorrent chant such as ‘We don’t want BLM supporters here,’ there would be immediate consequences,” Zussman told Haaretz. “However, chants such as ‘We don’t want Zionists here’ have been normalized and currently have no consequences. These double standards are unacceptable and will eventually fracture the university.”

The idea that the standards should be the same — that support for an ethno-state should be as protected as efforts to end anti-Black racism — reveals exactly the problem with the conflation of anti-Zionism and antisemitism: a troubling conflation of nation-state ideology with racial identity.

A Controversial Task Force

Since its formation last year, numerous students and faculty members expressed concerns about the antisemitism task force’s makeup, methodology, and purview.

“Ever since the task force was announced, we feared it would equate Zionism and Jewishness,” wrote four Jewish graduate students, all critical of Zionism, in an op-ed for the Columbia Spectator last week. “All three co-chairs of the task force — Ester R. Fuchs, Nicholas Lemann, and David M. Schizer — are members of the Academic Engagement Network, a Zionist advocacy organization, and the three of them penned a statement supporting Columbia’s ties to Israel.”

Columbia law professor Katherine Franke, writing in The Nation in April, noted that the task force is “chaired by among the most ardent Zionist faculty members on our campus” and that “none of its members has any academic expertise in the study of antisemitism, or in how antidiscrimination laws apply in an academic setting.” (Franke was among the five Columbia faculty members maligned by university President Minouche Shafik in Congress for their Israel-critical positions.)

The antisemitism task force itself published an op-ed in the Spectator under a shared byline last month. The text was riddled with claims indicating the body’s readiness to conflate anti-Zionism and antisemitism. “Zionism literally means the venerable movement for the self-determination and statehood for the Jewish people in their ancestral homeland,” the task force wrote, “but in many settings on campus it has become a less well-defined general-purpose accusation.”

Zionism — literally, practically, and historically — is by no means reducible to this rosy abstraction. While the group for months refused to give a clear definition of antisemitism, it was willing to offer a simple and reductive definition of Zionism — one that ignores that political, nation-state ideology’s unbroken history of Palestinian exile, oppression, and occupation.

In February, LitHub published an email exchange between task force co-chair Nicholas Lemann, a professor of journalism and film, and the celebrated filmmaker James Schamus. Schamus continuously urges Lemann to be transparent about the task force’s working definition of antisemitism, expressing concern over the task force’s pro-Israel bias.

Demands like Schamus’s for the task force to give a definition of antisemitism don’t presume a clear and simple definition of antisemitism. Instead, they ask for recognition that discrimination and bigotry are context-dependent and that definitions can’t be relied upon in every case.

The concern is that, all too often, anti-Zionism is treated as antisemitism.

Unacceptable on Campus

In remarks to the Israeli paper, task force members themselves the task force members seemed to acknowledge that felt experiences of antisemitism related to opposition to the ideology of Zionism.

“The concept of Zionism has become unacceptable in some circles at Columbia,” Lemann, the co-chair, told Haaretz. “People are asked to promise that they’re not Zionist.”

For many Jewish people, including the many thousands of us worldwide who have taken part in Palestine solidarity protests and campus encampments, the growing opposition to Zionism is not an attack on Jewish people but an overdue challenge to an oppressive, nationalist worldview.

The task force wants it both ways: to themselves insist upon the identification of Zionism with Jewishness, and then to call the identification itself antisemitic.

“Zionism is a political ideology — not an ethnic or religious identity,” wrote the Jewish graduate students in their Columbia Spectator open letter to the task force. “We can attest to that fact: Some of us believed in Zionism when we were younger, and even wanted to enlist in the Israeli military. Some of us grew up feeling like Zionism and Jewishness were inseparable, but our study of the history of Zionism led us to reject it.”

The task force wants it both ways: to themselves insist upon the identification of Zionism with Jewishness, and then to call the identification itself antisemitic. It is, in short, a trap.

When it comes to views deemed “unacceptable” on campus, meanwhile, it was Students for Justice in Palestine and Jewish Voice for Peace — two pro-Palestine organizations — that Columbia banned from campus last November. Over 100 students engaging in peaceful Palestine solidarity protests were arrested in April, with many suspended and, in the case of Barnard students, kicked out of their campus housing. It was Palestinian students and their supporters who were sprayed with noxious chemicals by two former members of the Israeli military on campus.

It was also, as I witnessed firsthand, young Palestinian and other Arab women students who were met at their campus gates by a crowd of middle-aged men and women wrapped in Israeli flags, screaming that the students should “go get raped” in Gaza. It is professors who have criticized Israel and supported Palestinians who were then smeared in Congress. Yet it is only in service of a perverted definition of antisemitism that there will be mandatory orientations.

“To be Muslim at Columbia is to be racially profiled and doxxed, beg for administrative resources and support, and still receive none,” wrote Noreen Mayat, a recent Barnard graduate and former president of the school’s Muslim Students Association, in the Columbia Spectator in May. “To be Muslim at Columbia is to face Islamophobia on campus — to be spat on and called ‘terrorists’ — and receive no University acknowledgment or recognition.”

In the Haaretz article, the antisemitism task force’s apparent prioritization of pro-Israel student experiences shields itself from critique by calling for a space of open discussion, when only one line of discourse will be institutionally sanctioned.

“Part of what a great university does is introduce us to people with different opinions,” David Schizer, Columbia law school professor and task force co-chair, said.

It’s a rich comment from the self-identifying conservative who went out of his way to see pro-Palestine colleagues censured and peaceful protests shuttered. It was in this very vein that the task force has operated from the jump: exploratory, but with only one possible focus and thus one possible conclusion.

“The priority has always been the comfort of students other than us,” Mayat, the Barnard graduate, wrote. “The priority has always been the safety of others, at the expense of ours.”

The post Columbia Task Force for Dealing With Campus Protests Declares That Anti-Zionism Is Antisemitism appeared first on The Intercept.

Soon after Israel launched its retaliatory assault on the Gaza Strip on October 7, the 22-year-old al-Absi and his family were forced to flee from their home in the Jabalia refugee camp in the north and seek refuge, along with thousands of others, in the nearby Al-Fakhoura school run by the United Nations Relief and Works Agency, or UNRWA, which aids Palestinian refugees.

The Al-Fakhoura school soon came under attack. On November 4, an Israeli airstrike on the shelter killed at least 15 people, including two of al-Absi’s relatives, and injured dozens more. Al-Absi decided, along with his family, to move to Rafah, Gaza’s southernmost city, which had been designated a safe zone by the Israeli military.

The family would stay in Rafah for the next five months, initially at a warehouse in the city. With the ground invasion looming in late April, the al-Absis relocated to the Tal al-Sultan neighborhood, with tens of thousands of other families, into a tent camp.

Then came the Israeli bombs. Al-Absi and his family would become survivors of what is known as the “tent massacre” on May 26.

Even in the massacre’s wake, however, they were unable to leave Tal al-Sultan — the cost of moving around Gaza was prohibitively high. In a matter of days, after another volley of Israeli airstrikes against the city, Mohammad Jaber al-Absi and his brother Abed would end up burying 15 members of their family, including their father and five children.

“Nowhere Safe in Gaza”

The sustained Israeli attack on Rafah — and the fates of families like the al-Absis — highlight the near impossibility of finding anywhere safe in Gaza.

In early June, after the Rafah strike, the pervasive danger in Gaza was again highlighted. Israel unleashed a midday assault on Nuseirat refugee camp and Deir al-Balah, part of a hostage rescue operation that killed hundreds of Palestinians and wounded countless more. The attack’s victims in Nuseirat had been, like many in Rafah, displaced multiple times.

The stories of survivors of the “tent massacre” illustrate the long odds faced by Palestinians in Gaza, who bankrupt themselves to follow orders to repeatedly relocate themselves to areas that the Israelis say won’t be attacked, only to be attacked.

Around 1.4 million internal refugees were packed in Rafah, normally a city of 230,000 on the evening of the tent massacre, which triggered a fire; killed at least 45 people, many of them children; and wounded more than 240 others. The same insecurity that brought down Israeli bombs on a tent city in a purported safe zone, however, would also continue to shadow the survivors of Tal al-Sultan.

“Those were scenes that will never be erased from my memory, and my kids’ memories.”

Some survivors, like Layla Samour and her family, who had been displaced from northern Gaza early in the war, would make their way out of Rafah, bringing with them what little they had left, along with the scars of the massacre.

Samour described seeing charred bodies in the massacre, torn-apart children, and the wounded crying for help in vain. “I saw people trying to pull the bodies of their loved ones from the fire while the smoke filled the air and made it difficult for us to breathe,” she told The Intercept in an interview. “Those were scenes that will never be erased from my memory, and my kids’ memories.”

Others, like the al-Absis, had moved and moved and been bombed out of place after place. This time, they would stay, and almost immediately experienced the acute dangers of the continued Israeli assault.

“There is nowhere safe in Gaza,” Tamara Alrifai, a spokesperson for UNRWA, told The Intercept.“Not even UNRWA shelters that are clearly marked, and whose GPS we share.”

According to Alrifai, over 180 UNRWA buildings have been damaged or destroyed in the Israeli military assault over the past eight months, killing over 450 Palestinians seeking shelter inside them and wounding nearly 1,500.

“All civilian infrastructure, including UN infrastructure, is protected under international humanitarian law,” said Alrifai, “and this has clearly been totally disregarded during this conflict.”

“Raining Shrapnel”

When Layla Samour fled her home in northern Gaza last fall, she was 37 years old and nearly nine months pregnant with her eighth child. In her state, with seven kids in tow, the journey south was daunting, but there was little left for her in the north: Her family home was destroyed in an Israeli airstrike on October 14, a week into Israel’s assault on Gaza.

Eventually, the Samours settled into the Tal al-Sultan displacement camp, near an UNRWA logistics base. She gave birth at the end of October, in a tent.

In late April, shelling in the area picked up. On May 6, Israel began its ground invasion.

The White House, which had repeatedly cautioned Israel against invading Rafah without a “plan to protect civilians,” nevertheless signed off on a new $1 billion arms sale to Israel on May 14, a little over a week into the offensive. The attack came in for worldwide condemnation, and the International Court of Justice issued new provisional measures ordering Israel to immediately end military operations in Rafah.

Yet two days later, on the evening of May 26, Israeli airstrikes slammed into the tent camp in Tal al-Sultan. The bombs used in the Israeli attack were U.S.-made, according to investigations by multiple news outlets.

“I screamed as I never did before,” Samour told The Intercept. “The first thing I felt was the shock of the explosion, as if the ground was shaking beneath us. I rushed to my children and hugged them close, fearing that the missile would fall on our heads. I found safety in dying together. It was raining shrapnel.”

“I was devastated that I could not bring my kids back inside my belly.”

Samour heard the screams of children and women around her as tents were set ablaze. “The flames were surrounding us, it was beyond my worst nightmares,” she said, describing her desperate attempts to protect her children. “I was devastated that I could not bring my kids back inside my belly.”

She says she tried to help extinguish the blaze, but the dense smoke and intense heat made it nearly impossible. Every time she tried to approach an area to put out the flames, a wave of fire and smoke pushed her back.

“I carried a child in my arms and held the hand of another, while the rest followed me, praying to find a safe place,” she said. “We ran amid the fire and smoke, trying to avoid the casualties and shrapnel.”

Samour spent a harrowing night in the streets with her children. The next morning, she decided to leave the area, but the fuel shortage had made transportation costs prohibitively expensive. Then she had a stroke of luck: After two days, Samour was finally able to secure a staggering $550 through an acquaintance to be able to move to Khan Younis, Gaza’s second largest city.

Yet Khan Younis did not offer safety either. Israeli troops withdrew from the city in April following a weekslong ground offensive, leaving the city in ruins. An estimated 55 percent of the structures in the Khan Younis area — around 45,000 buildings — and much of the city infrastructure has been destroyed, with dire shortages of food, clean water, medical supplies, and health care services, according to the World Food Program.

Samour would have opted to relocate somewhere else, but the money she got was only enough to travel to Khan Younis, a mere 10 to 15 kilometers away from Rafah. Traveling any further north would cost even more.

Two Days Later

When they first arrived in Rafah in November, Mohammad Jaber al-Absi and his family settled in a warehouse, where they lived for five months. Israeli attacks came in waves: airstrikes, artillery shells, and finally ground troops. The eldest of his siblings at just 22, al-Absi strove desperately to provide for the others.

By late April, Israel was gearing up for its full-scale ground assault on Rafah. As the shelling increased in advance of the attack, al-Absi moved with his family yet again, this time to the Tal al-Sultan tent camp near the UNRWA logistics base. Several days later, on May 6, Israel launched its ground offensive.

They were still in the camp when the bombs came down on May 26.

Survivors of that “tent massacre,” al-Absi and his family were unable to flee the area. The cost of transportation, which had risen to hundreds of dollars just to travel a few kilometers, was unaffordable, al-Absi told The Intercept.

“The only safe place is where my family is now. They were killed for the sake of safety. I envy them.”

Unable to leave, and believing the international outcry following the May 26 airstrike meant the area would be spared another attack, the family moved to another displacement camp some 150 meters away.

Just two days later, however, on May 28, an Israeli strike slammed into the camp, killing dozens. Al-Absi, who had left the area that day with his brother Abed to look for food and supplies, returned to find his family massacred. He tried to revive his father, who lay on the ground with a fatal head injury, but it was too late. The bloodied bodies of his siblings and other relatives were strewn nearby. None survived. In all, 15 of his relatives were killed, including five children.

“I felt helpless watching my family dying and not able to help them,” Al-Absi told The Intercept. “It is a nightmare that I will never wake up from.”

The al-Absi brothers buried their family members with the help of some friends.

In a final desperate bid, they moved to al-Muwasi, a nearby desolate plot of land on the coast. As it once had for Rafah, Israel designated al-Muwasi a humanitarian area for evacuees and, like Rafah, it has been hit with airstrikes and shelling.

“The only safe place is where my family is now,” Al-Absi said. “They were killed for the sake of safety. I envy them.”

The post These “Tent Massacre” Survivors Couldn’t Afford to Leave Rafah. The Next Israeli Attack Nearly Wiped Their Family Out. appeared first on The Intercept.

Under the Constitution, a plaintiff must be suffering some concrete injury to bring a federal lawsuit. In the mifepristone case — FDA v. Alliance for Hippocratic Medicine — the suit was brought by a collection of anti-abortion advocates, some of them doctors, who neither provide abortion care nor prescribe mifepristone. Nonetheless, they claimed that somehow, someday they may be forced to treat a patient suffering complications from taking mifepristone, which they said granted them the right to sue.

The Supreme Court didn’t buy it. “The plaintiffs do not prescribe or use mifepristone,” and the FDA approval doesn’t require them to do so, Justice Brett Kavanaugh wrote for the court. “Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain.” Their desire to make the drug “less available for others does not establish standing to sue.”

The plaintiffs have long made the demonstrably false claim that mifepristone is frighteningly unsafe — indeed, research making this claim was recently retracted by its publisher. Kavanaugh’s opinion seems to acknowledge what mainstream medicine and science have said about those claims: that mifepristone is safe, and there is no evidence that the FDA’s actions have led to increased safety issues or drug complications.

Although the court made quick work of dismantling the Alliance’s claims, the future legal status of mifepristone is most certainly still in the crosshairs.

In January, the states of Missouri, Kansas, and Idaho sought to intervene in the Alliance lawsuit, arguing that they have standing to sue because of their “quasi-sovereign interest” in protecting the “health and welfare of women and girls in their states” against the dangers of mifepristone so recklessly ignored by the FDA. Their effort to join in the legal action before the Supreme Court was denied, but their efforts at intervention are still alive in the lower courts.

In statements just after the Supreme Court’s Thursday morning ruling, the attorneys general of Kansas and Missouri vowed to press their case. “We are moving forward undeterred with our litigation to protect both women and their unborn children,” Missouri Attorney General Andrew Bailey said.

And Idaho is fighting to roll back abortion access in other ways as well. Still outstanding from the Supreme Court this term is a ruling in another consequential case — Idaho v. United States — where the state is challenging long-standing federal law that requires hospitals to provide whatever emergency medical treatment is necessary to stabilize a patient, including abortion. That opinion is expected later this month.

A Cynical Endeavor

Mifepristone is the first drug in the standard two-medication abortion protocol. The FDA approved the drug in 2000 for use in early pregnancy termination. Mifepristone, which blocks the hormone progesterone (needed to maintain pregnancy) and softens the uterine lining, is taken first. The second drug, misoprostol, is taken 24 to 48 hours later and causes the uterus to contract, expelling the pregnancy. Medication abortion accounted for just 5 percent of abortions in 2001 and has since grown — particularly in the wake of the Supreme Court’s 2022 Dobbs decision — and now accounts for more than 60 percent of all abortions in the U.S. The protocol is also commonly used in miscarriage management.

Over the years, the FDA has loosened restrictions around mifepristone — including increasing the window for its use up to 10 weeks into pregnancy and doing away with a requirement that doctors dispense the drug in person (after all, there is no such requirement for dispensing misoprostol, which actually causes the abortion, and is taken later, at the time and place of the patient’s choosing). The FDA subsequently expanded access by allowing mail-order and brick-and-mortar pharmacies to dispense mifepristone to patients with a prescription in states where abortion is legal.

Related

The Shadow Medical Community Behind the Attempt to Ban Medication Abortion

The anti-abortion groups at the heart of the Alliance lawsuit didn’t like any of these developments and have long claimed — devoid of any scientific backing — that mifepristone is a uniquely dangerous drug and instead of being liberalized should be banned altogether.

From the jump, the Alliance suit was a cynical, propagandistic endeavor. The Alliance is an umbrella organization made up of the American Association of Pro-Life Obstetricians and Gynecologists, the Christian Medical & Dental Association, the American College of Pediatricians, the Catholic Medical Association, and the Coptic Medical Association of North America. The members of these five well-known affinity groups have long been vocal about their anti-abortion views.

The Alliance itself, however, is new: It incorporated in Texas’s Panhandle just three months before filing its lawsuit there — an obvious ploy to draw federal Judge Matthew Kacsmaryk, a far-right darling, who is the lone judge in Amarillo tasked with hearing cases filed in the area. Kacsmaryk did not disappoint: In a raving opinion lifted from the pages of an anti-abortion talking-point glossary, he said the groups and their individual plaintiff doctors had the right to sue, and he issued a sweeping nationwide injunction that would block anyone, anywhere from using mifepristone for any reason. 

The federal government appealed to the 5th U.S. Circuit Court of Appeals, which ultimately disagreed that mifepristone should be banned altogether, but did block the FDA’s more recent moves to increase its availability. In other words, the appeals court ruled that mifepristone could only be available under the most stringent of rules, rolling back the widely accepted medical standard of care. The FDA again appealed to the Supreme Court, which heard oral arguments in the case in March.

Dubious Arguments

Before the court, Erin Hawley, a lawyer with the far-right Alliance Defending Freedom, which represents the Alliance for Hippocratic Medicine, struggled to present a cogent argument for why her clients had standing to sue. The gist of it went something like this: Mifepristone is so wildly dangerous that patients suffering complications are going to be flooding medical facilities and inundating providers. Eventually one of those patients will maybe — probably? — come to a member of one of the Alliance’s organizations, forcing the doctor to participate in providing an abortion, even if only tangentially.

The organizations themselves were also directly harmed by the FDA’s approval of mifepristone, she argued, because they were forced to divert resources from their other anti-abortion priorities and to instead channel them into fighting against the FDA and commissioning studies claiming mifepristone is a deadly drug. 

Hawley also leaned into the argument that the zombie law from 1873 known as the Comstock Act, which forbids the mailing of “every article or thing” that could be used for abortion, bars the freer distribution of mifepristone. Mifepristone, she noted, certainly fits in the category of banned items.

In its 9-0 opinion, the court was mum on the Comstock question. Somewhat surprisingly, Justice Clarence Thomas did not mention it in his concurring opinion either, after having referenced it during oral arguments, as did Justice Samuel Alito.

Instead, the court focused on Alliance’s standing arguments — and dismissed the case on those grounds. The organizations that make up the Alliance had not shown any concrete injury from the FDA’s approval, and it “cannot spend its way into standing simply by expending money to gather information and advocate against the defendant’s action,” Kavanaugh wrote. “An organization cannot manufacture its own standing in that way.”

The court also readily dismissed the notion that any of the individual doctors had standing to sue. Their arguments were too speculative and tenuous to hit the mark. “Because the plaintiffs do not prescribe, manufacture, sell, or advertise mifepristone or sponsor a competing drug, the plaintiffs suffer no directly monetary injuries from the FDA’s actions relaxing regulation of mifepristone,” Kavanaugh wrote. “Because the plaintiffs do not use mifepristone, they obviously can suffer no physical injuries from FDA’s actions relaxing regulation of mifepristone.”

Notably, the court’s opinion nodded to mifepristone’s safety by acknowledging that the plaintiffs presented no evidence suggesting that the FDA’s actions both increased the number of patients seeking them out for treatment and caused them to divert attention from other patients. Nor have they identified “any instances” from the past where they were sued or where their insurance costs increased because they’d treated pregnant patients “suffering mifepristone complications,” he wrote. “Nor have the plaintiffs offered any persuasive evidence or reason to believe that the future will be different.”

The case now goes back to the 5th Circuit, with a mandate to follow the high court’s ruling.

The post GOP States Double Down on Fighting Medication Abortion After Supreme Court Keeps It Legal appeared first on The Intercept.

Related

A Federal Judge Visited Israel on a Junket Designed to Sway Public Opinion. Now He’s Hearing a Gaza Case.

The plaintiffs — a mix of Palestinian human rights organizations, Palestinian nationals, and Palestinian Americans — claimed the trip’s ideological framing made it improper for Nelson to participate in the case. Oral argument is scheduled for June 10, and plaintiffs filed an emergency recusal motion on Tuesday.

“Appellants have moved to disqualify me from participation in this case based on my attendance at a judicial education conference in Israel in March,” Nelson wrote in a brief order. He disputed the merit of plaintiffs’ allegations of potential partiality.

“They cite no comments I have made about any issues related to this case. Thus, it is far from certain that an objective observer would reasonably question my impartiality,” he wrote. “That said, out of an abundance of caution, the best course in this specific case (which may not apply in other cases) is to recuse.”

“This case against top U.S. officials for aiding and abetting Israel’s genocide raises issues of utmost importance,” said Baher Azmy, legal director of the Center for Constitutional Rights, which represents the plaintiffs, “and the appearance of fairness is paramount given the stakes.”

Update: June 6, 2024, 3:44 p.m. ET
The story has been updated to include a comment from the Center for Constitutional Rights that was received after publication.

The post Judge Who Went on Israel Junket Recuses Himself From Gaza Case appeared first on The Intercept.

The Columbia Law School students who run CLR were considering a proposal to append a note to the Palestine article disclaiming what the directors, in an unsigned letter to students, described as “secrecy and deviation from the Review’s usual processes.” In the letter proposing the text, the board of directors said it wanted to see the journal put back online.

The student editors rejected the deal for a disclaimer by a 20-5 vote, according to a student and documentation reviewed by The Intercept.

“To the extent that they’re trying to censor Rabea, that simply won’t happen — that simply hasn’t happened and can’t.”

“I think that this whole year, and particularly this last semester, has been about students recognizing, stepping into their power,” said Sohum Pal, a CLR articles editor. “And I’m very glad that the law students at the law review are doing the same.”

When the article on Palestine, titled “Toward Nakba as a Legal Concept,” was published on Monday morning, Rabea Eghbariah became the first Palestinian legal scholar to publish in CLR. But within hours of publication, after months of revisions on the lengthy piece, the board of directors took the journal’s website completely offline, saying they had concerns about the process.

“Powerful legal scholarship cannot be silenced,” said Pal. “It’s already been circulating. It’s already gotten far more views or reads than the average law review article. And, yeah, to the extent that they’re trying to censor Rabea, that simply won’t happen — that simply hasn’t happened and can’t.”

The Intercept was not immediately able to reach members or representatives of the CLR board of directors, which oversees the independent, nonprofit student-led publication, for comment about the vote or the letter.

After voting, the students sent an email to board member Gillian Metzger, a Columbia law professor, saying that if the board continues to hinder the publication of Eghbariah’s piece, the staff of CLR will stop all work on the journal. The email, which was reviewed by The Intercept, said the students would continue to work on the Bluebook, a legal citation guide maintained and updated by four schools’ law reviews, including CLR. (Metzger did not immediately respond to a request for comment.)

On Thursday afternoon, the board of directors reinstated the website, including Eghbariah’s article. A link at the bottom of the CLR homepage went to a statement from the board about Eghbariah’s article.

Eghbariah told The Intercept he viewed the board of directors’ actions as an example of a “Palestine exception” to free speech and academic freedom.

“The CLR Board of Directors has yet to contact me or officially explain to me their decision to take down the website, let alone their proposal to add a disclaimer to the article,” Eghbariah said, in a statement received after publication. “The fact that the Board could not cite any substantive deficiencies with the piece but rather resorted to allegations about internal processes, which were rejected by CLR editors, tells me all I need to know. This is not only a Palestine exception in action but also a disingenuous attempt to manufacture controversy that undermines and deflects attention from the content of the article.”

The website takedown was the latest in a battle on Columbia’s campus — and on campuses across the country — over free speech and the Israeli–Palestinian conflict. Protests erupted on many of the campuses over Israel’s war on Gaza, which has killed more than 35,000 Palestinians, including at least 15,000 children. At Columbia and other universities, demonstrators were met with brutal police violence.

Disputes over the Gaza war more broadly have spilled into many aspects of university life, with pro-Palestine students often facing consequences ranging from censure, expulsion, and even censorship — including at well-respected academic journals. In November, the Harvard Law Review voted to kill an online article, also by Eghbariah, that had gone through the full editing process.

On Tuesday, the day after The Intercept published its story on the directors’ initial suppression of Eghbariah’s piece, student editors said they received a letter sent on behalf of the board of directors that offered what it said was “the best way to further the many important values at stake.” The proposal in the board letter required that the following statement be attached to Eghbariah’s piece:

“Toward Nakba as a Legal Concept was not subject to the usual processes of review and editing at the Law Review. It was solicited outside of the usual articles selection process and edited and substantiated by a limited number of student editors. Contrary to ordinary practice, it was not made available for all student editors to read. As a result, a number of student editors were unaware of the piece and did not have the usual opportunity to provide input on its content prior to its publication.”

Some of the student editors who worked on Eghbariah’s piece took exception to the directors’ demand. “The letter communicates the Board’s continued stance to usurp and interfere with the student-run editorial process,” Erika Lopez, one of the editors, told The Intercept on Wednesday. “The Board’s seemingly final decision to include a disclaimer is offensive and unprecedented.”

“The letter communicates the Board’s continued stance to usurp and interfere with the student-run editorial process.”

The letter also suggested additional measures, including taking the “article” label away from piece, since it wasn’t facilitated by the articles committee, and soliciting a response to it. Students had previously told The Intercept that CLR’s student administrative board made a unanimous procedural vote to create a committee for shepherding a piece on Palestine; a separate vote on whether or not to solicit a piece and create an opt-in committee to edit it also passed overwhelmingly. 

The Wednesday letter, delivered to students unsigned and not on letterhead, said the board of directors had been “informed that this piece had not been subject to the usual processes of review or selection for articles at the Law Review, and in particular that a number of student editors had been unaware of its existence until two days before.” 

“The secrecy that surrounded this article’s editing and substantiation review is unacceptable,” the directors’ letter said. “It is also unprecedented, in that every piece is either worked on by, or available on request to, all student editors during the editing process.”

The letter also raised questions about the “adequacy of the editing and substantiation processes” in light of the purported secrecy.

“We elected to use a different internal communications policy for the piece; we did not use a different editing process,” one of the editors, who requested anonymity to avoid reprisals, told The Intercept on Wednesday. “Any implication that the internal communications policy reflected a deficient editing process is both untrue and insulting to the piece, the author, and our editorial staff.”

On Monday, student editors told The Intercept that the draft was stored on a server available to the opt-in editors of the article because of fears over leaks. The editors who spoke with The Intercept said they had never heard of a previous request by the board to distribute an article draft to the full membership of CLR.

In a statement to The Intercept on Monday, CLR’s board of directors, a group of eminent alumni and Columbia professors, said that it had requested a delay in the publication of the article so its content could be shared with the full membership of the journal, some 100 students. The delay was granted. 

When word of the article began to leak beyond the CLR community, however, the students responsible for producing it published the full May volume of the journal online. In response, the directors shut down the entire law review’s website. The directors, in their statement to The Intercept on Monday, said, “In order to provide time for the Law Review to determine how to proceed, we have temporarily suspended its website.”

After their vote, some of the CLR students declared a victory.

“I just feel really grateful and proud of my colleagues for taking a meaningful and principled stance tonight,” said Pal, the articles editor. “I tend to be pretty cautious, but I think I also try to be really optimistic. And one thing that we’ve been saying to each other, during this last day, has been that, like, optimism requires a little grain of delusion, and I think that it really feels very meaningful right now, to be deluded enough to think that you can win and then to do it.”

Update: June 6, 2024, 2:02 p.m. ET
This story has been updated to include the board’s reinstatement of the website without a PDF link for Rabea Eghbariah’s article; the students’ claim, made in an email, that they intended to keep working on the legal Bluebook; as well as a comment from Eghbariah received after publication.

The post Columbia Law Review Is Back Online After Students Threatened Work Stoppage Over Palestine Censorship appeared first on The Intercept.

“President Joe Biden is pulling from former President Donald Trump’s immigration playbook,” CNN reported on Tuesday. The occasion was Biden’s announcement this week of a draconian executive order to temporarily shut down asylum requests at the U.S.–Mexico border and introduce other drastic restrictions on the basic right to asylum.

CNN was not alone. Numerous commentators, particularly critics of Biden’s plan, noted that the decision to halt the asylum process reflects an extremity of border authoritarianism worthy of Trump. “This action takes the same approach as the Trump administration’s asylum ban,” the American Civil Liberties Union said on X, vowing to go to court.

There’s much truth to it. Biden’s border policies have been no less than Trumpian. This is especially true of his use of executive authority to harden border rule, as Trump had done with his 2017 Muslim ban and his own extremist asylum restrictions in 2018.

Yet Biden’s new asylum restrictions, the details of which were announced on Tuesday, are neither an aberration from his administration’s border policies, nor are they a shift away from decades-long Democratic Party standards, since at least the Clinton era.

This is not to underplay the extremity of Biden’s new plan. Under Biden’s executive order, the administration will halt asylum requests at the border once the average number of daily encounters has reached 2,500 between legal ports of entry, which has been consistently the case since Biden took office in 2021. Requests will be reopened two weeks after the daily average falls under 1,500 for seven consecutive days. The restrictions went into effect last night.

The order has some exemptions in place for unaccompanied minors, for those with acute medical emergencies, for “severe” trafficking victims, and for people who have already made appointments on the Customs and Border Protection app, a burdensome process that can take many months.

Those who can immediately show “reasonable probability” of imminent and extreme threat to life or safety, such as grave persecution, rape, kidnapping, torture, or murder are exempt — although the Department of Homeland Security noted that the plan demands a “new, substantially higher standard” that there is a “reasonable probability.” This standard is higher even than under Trump’s harsh 2018 asylum ban.

Migrants who are expelled under the order will receive a minimum five-year bar on reentry to the U.S. and potentially be criminally prosecuted.

Rep. Ilhan Omar, D-Minn., summed it up well: “This will be one of the most restrictive border policies in modern history.”

Bipartisan Border Fascism

While it is true that Biden is bending to Republican pressure over the so-called border crisis — quite literally relying on Trump-era legislation — border fascism has for decades been a bipartisan commitment.

The convergence between conservative and far-right border politics, with the far right consistently winning the day, can in part be blamed on spineless realpolitik: A February Gallup poll found that 28 percent of Americans believed immigration to be the most important problem facing the U.S.

Better for a presidential campaign, the logic goes, to lean into the pernicious, anti-migrant crisis narrative.

It matters little that public sentiment might be affected by years of right-wing fearmongering, to which the Democratic establishment has readily acquiesced, alongside punishing austerity budgets that leave citizens fearful of stretched resources. Democrats and Republicans are fighting to the bottom on immigration — a fight that vocal white nationalist Republicans will always win.

This is not, however, merely a case of self-identifying centrist Democrats following the evermore fascistic Republican line.

“I think it’s so important to understand how immigration enforcement has been a pillar of the Democratic party’s governance for three decades,” activist and scholar of border imperialism Harsha Walia told Intercepted podcast in February 2021, when it was already becoming clear that Biden’s tenure would hardly see the undoing of the border regime.

Walia noted that it was under Presidents Bill Clinton and Barack Obama — not only Trump — that “an entire immigration enforcement apparatus” was established to increase criminalization, detention, deportation, and militarization. It was, Walia said, “the very bipartisan agenda of detaining and deporting and terrorizing migrant communities.”

These structures, she added, were built up and normalized in the Clinton years.

Related

Confronting the Long Arc of U.S. Border Policy

In 1994, at the very same time that Clinton signed the North American Free Trade Agreement, the Army Corps of Engineers began to fence the U.S.–Mexico border. The neoliberal trade deal further immiserated Mexico’s poorest, producing displacement and migration; the U.S militarized the border in preparation. Clinton’s 1996 immigration laws significantly expanded the United States’ ability to detain and deport migrants with even minor criminal convictions.

And Obama relied on the pernicious, racist, classist narrative of only targeting “dangerous” criminal migrants. Rightly dubbed the “deporter-in-chief,” Obama deported some 3 million people.

Differences of Rhetoric, Not Substance

This is a Democratic legacy: hardened borders, the criminalization of migration, the willingness to condemn thousands of people to death through deterrence. This is the necropolitical management of migrants fleeing political and economic turmoil often as the result of decades of ruinous U.S. interventions in Central America.

While Trump set the bar of anti-immigrant politics at a subterranean low and promises an agenda of unvarnished fascism should he be reelected, the brutal and increasingly eliminationist exclusion of migrants is a bipartisan project.

Biden’s executive order is itself no shift from his only policy record. A war on immigrants is the norm under this administration, from the expedited expulsion of thousands of Haitians in 2021; to his blanket policy in early 2023 to immediately eject asylum-seekers from Cuba, Haiti, and Nicaragua who cross the border from Mexico without having previously applied for asylum in a third country; to U.S. Immigration and Customs Enforcement’s increased use of solitary confinement for thousands of detained migrants.

The idea of Democrats as the pro-immigrant party nonetheless persists as a convenient myth on both sides of the aisle. Democrats condemn the intolerable cruelty of Republican nativism, and Republicans, meanwhile, decry Democrats as open-border radicals, regardless of the anti-immigrant continuities between the two party’s policies. Stephen Miller, the architect of Trump’s family separation policy, predictably slammed Biden’s authoritarian executive order as somehow “pro-invasion, pro-illegal migration executive order.”

The difference is more one of rhetoric than substance. “I’ll never refer to immigrants as poisoning the blood of a country,” Biden said on Tuesday. But policies that swiftly reject, eject, cage, and punish desperate migrants attempting to find safety and stability in one of the world’s wealthiest nations send the same nationalist message.

Democrats couch their border logics in the neoliberal language of management and order, rather than explicitly racist “America First” slogans. The maintenance of the border — a racist tool that serves capital and divides labor — has the same disastrous, deadly effects no matter what rhetoric justifies it.

As the American Civil Liberties Union noted of Biden’s executive order, it “will severely restrict people’s legal right to seek asylum, putting tens of thousands of lives at risk.”

The post Joe Biden’s Cruel Border Shutdown Follows in Clinton and Obama’s Footsteps Too appeared first on The Intercept.