06 July 21
How Do We Get a Few People Each Day to Donate? How Do We do That?
Seems simple, tens of thousands come each day, and we need 30 donations to cover expenses. But for some reason, funding’s the most difficult thing we do. So difficult, in fact, that it persistently imperils everything we do.
Ignoring funding will not work.
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06 July 21
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Reader Supported News
he West is now suffering record drought and heat, the most recent measure of the climate catastrophe that is already upon us. Nearly one-fourth of American households lack broadband access. A water main breaks every two minutes. With child-care costs soaring, more than 1 million workers — largely women — have been driven out of the economy, even as the economy reopens. Forty percent of Americans have no wealth at all, while the top 1 percent pockets over 30 percent of the nation’s wealth.
Are Democrats ready to act? That is the critical question as Congress returns from its holiday break. While President Biden is selling the bipartisan infrastructure deal as a “generational investment,” the real effort will come from using the budget reconciliation process to pass vitally needed public investments with Democratic votes only.
For all the focus on Biden’s ability to work across the aisle, the true challenge is whether he and the congressional leadership can work with all Democrats. That test will do much to determine whether the party can retain or increase its majorities in the next election — and whether the country will begin to address the cascading crises that it faces.
Unified Republican opposition is virtually inevitable. Senate Minority Leader Mitch McConnell’s (R-Ky.) has already announced that “100% of our focus is on stopping this new administration,” just as he obstructed President Barack Obama. The overwhelming majority of his caucus still marches to his beat.
Even if some Republicans were willing to cooperate, the Republican imprint on the bipartisan infrastructure deal makes it clear just how counterproductive they would be. The Republican negotiators demanded that, even though the needs of the country are far greater than what the president called for, any package to address those problems had to be far smaller. The $579 billion in spending reduces to $116 billion a year, or roughly $2.3 billion per state per year. That won’t come close to addressing what the American Society of Civil Engineers estimates is a $2.5 trillion investment gap in basic infrastructure alone — roads, bridges, water systems, electric grid, etc. (That does not even include other priorities such as upgrading our rail and broadband networks.) Republicans also opposed including investments in climate programs or family infrastructure — paid family leave, child care, child tax credits and the like, so they were largely dropped from the package.
Republicans demanded that the spending be paid for — even though most economists across the political spectrum agree that infrastructure investment will largely pay for itself by stimulating growth and jobs and making the economy more efficient. But the Republican negotiators opposed raising taxes on the rich and the corporations. The result is that the “pay-fors” feature a combination of one-offs — such as sales from the petroleum reserve — and gimmicks. Particularly perverse is what is called “access recycling” — essentially raising money by selling off public works to private interests who will raise fees on users. There is no more effective way to insure that working and poor people get stuck with much of the bill. At least Democrats insisted on giving the IRS more funds to crack down on tax avoidance.
Republican obstruction leaves the responsibility to Democrats. The leader of the Budget Committee, Sen. Bernie Sanders (I-Vt.), is putting together a $6 trillion package that would include the Biden investments in renewable energy, in child care, college and schools, as well as investment in health care — notably reducing the eligibility age of Medicare from 65 to 60 and adding dental, hearing and vision insurance. It would be paid for by raising taxes on the rich and the corporations. The elements of this agenda — investments in renewable energy, day care, paid family leave, making college affordable, the monthly child allowance — all enjoy majority public support. Remarkably, hiking taxes on the rich and the corporations is among the most popular pieces of the package.
But with no margin to spare, the internal Democratic negotiations will be brutal. More conservative House Democrats are already muttering about deficits and inflation. A few moderate Senate Democrats — Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.) most notably — have already registered concerns about the size of both the spending and the tax increases. Biden has touted his ability to work across the aisle and celebrated the bipartisan infrastructure agreement. But the real test is whether he can bring Democrats together to address these challenges. The stakes could not be higher.
The U.S. Capitol building on January 6, 2021. (photo: Getty Images)
Six months on, as politicians and the rightwing media downplay the attack or shift the blame, fears of a replay grow
t has been described as America’s darkest day since the terrorist attacks of September 11, 2001. But whereas 9/11 is solemnly memorialised in stone, a concerted effort is under way to airbrush the US Capitol insurrection from history.
Six months on from the mayhem on 6 January, when a mob of Donald Trump supporters stormed the heart of American democracy to disrupt the confirmation of Joe Biden’s election victory, Republicans and rightwing media have variously attempted to downplay the attack or blame it on leftwing infiltrators and the FBI.
Interviews with diehard Trump fans suggest that the riot denialism is working. Many refuse to condemn the insurrectionists who beat police officers, smashed windows and called for then Vice-President Mike Pence to be hanged. The swirl of conspiracy theories, combined with Trump’s deluded claims of a stole election, raise fears of a replay that could be even more violent.
“Rightwing media and some Republicans, including Republicans in the Senate and the House, are trying to make it seem as though what was a siege on the Capitol was not actually a siege on the Capitol,” said Monika McDermott, a political science professor at Fordham University in New York.
“We all saw it. We saw them breaking down doors. We saw our members of Congress running for cover and trying to get away. We saw Mike Pence being shuttled out of the chamber. All of these frightening things that we saw happen are now being denied or being or being laid at the feet of Antifa or the FBI or some other source, which just seems at this point ludicrous.”
Hours after the insurrection in Washington, members of Congress returned to the chambers to complete the certification of Biden’s electoral college win. Some Republicans did seem shaken and aware that a new, dangerous line had been crossed. Yet 147 still voted to overturn the election outcome, an ultimately futile gesture.
A month later a minority also voted to impeach and convict Trump for his role in sparking the insurrection, but not enough to stop him being acquitted. Since then, many party members have been eager to “move on” and minimize the events of that day.
Senator Ron Johnson told Fox News: “We’ve seen plenty of video of people in the Capitol, and they weren’t rioting. It doesn’t look like an armed insurrection when you have people that breach the Capitol – and I don’t condone it – but they’re staying within the rope lines in the rotunda. That’s not what armed insurrection would look like.”
Congressman Andrew Clyde – who was photographed barricading the House of Representatives chamber – told a hearing that, based on TV footage, “you would actually think it was a normal tourist visit”. His colleague Louie Gohmert added: “I just want the president to understand. There have been things worse than people without any firearms coming into a building.”
Even Kevin McCarthy, the House minority leader who had said the former president “bears responsibility” for the attack, ultimately bent to Trump’s will and backed the removal of congresswoman Liz Cheney – who was clear-eyed and outspoken about the gravity of the assault – from House leadership.
Mitch McConnell, the Senate minority leader who also condemned Trump’s role in the insurrection, nevertheless ensured that Republicans deployed a procedural rule known as the filibuster to block the creation of a 9/11-style bipartisan commission to investigate it. This was despite the justice department warning that domestic terrorism now poses a bigger threat than attacks from overseas.
Kurt Bardella, a former Republican congressional aide who is now a Democrat, said: “I’m old enough to remember when the Republican party was willing to launch this country into a global war, fought on multiple fronts over the course of many years, because of what happened on September 11. And yet here we are just six months removed from something that happened on our own soil and on our own Capitol and Republicans are actively trying to rewrite history to make it out to be something that it wasn’t.”
Bardella, a contributor to the Los Angeles Times and USA Today newspapers, added: “If those who would deny the gravity of what happened on January 6 achieved a position of power, it is almost a guarantee that this will happen again, only it will be even more violent and more deadly.
“The Republican party is creating a construct in which they are giving permission to their supporters to view any election that doesn’t result in them winning as illegitimate and that is a very dangerous and destabilizing position that will have violent consequences.”
Not for the first time, Republicans are being aided and abetted by rightwing media personalities amplifying their message, not necessarily to change minds but to muddy the waters, leave the events of 6 January open to speculation and give Trump supporters a way to rationalize and justify them.
Conservative television, fringe website and rightwing podcasts are pumping out the propaganda and disinformation. Laura Ingraham, a Fox News host, has told viewers flatly: “It was not an insurrection.”
Her colleague Tucker Carlson, who has a huge following, floated the groundless “false flag” theory that the FBI secretly orchestrated the riot. As he was speaking, a banner appeared on screen that said: “The left wants new information on Jan 6 to go away.”
Chris Hayes, a host on the rival MSNBC network, commented: “The purpose here is not for communicating information. It’s to break the consensus of reality so that people can be manipulated and radicalised. And it is incredibly dangerous. And it is working.”
It is indeed working. Riot denialism was rife at Trump’s first post-presidential rally in Wellington, Ohio, on 26 June, where supporters began from the premise that the election had been stolen.
Gary Sherrill, 65, a concrete mixer driver wearing a “Make America great again” cap, said the insurrection was justified. “They said those people were invading but they own the building. The people inside work for them.”
Rose Kidd, 63, a retired nurse, made the evidence-free claim: “That was all staged. [House speaker Nancy] Pelosi knew. Antifa and BLM [Black Lives Matter] were all bussed in. Video shows it was they who broke the windows. Patriots don’t do that.”
And Gary Bartlett, 65, a retired manual worker at a car manufacturer, added: “99% of the people there were peaceful. The ones who went inside, I don’t know if they were Trump supporters or Antifa who infiltrated. Most of them walked in and walked back out.”
Democrats are working to understand 6 January and ensure it takes it rightful place in the history books. On Wednesday the House passed a resolution to form a select committee to investigate the carnage, with Pelosi appointing eight members and McCarthy appointing five. Many believe that such a reckoning is necessary for a national catharsis and healing – the struggle of memory against forgetting.
McDermott, the political scientist at Fordham, commented: “This was an unprecedented historic event and it is not one that should be wiped off of the history books or hidden away as though it didn’t happen or be minimised in any way. What happened was very real.
“It’s something that the country has to come to terms with, which I don’t see happening right now. We’re in very real danger of forgetting that there is a part of our society that is willing to use violence to get what they want out of the government. And I’ve done polling on this myself and those people are out there. They do think violence is a legitimate way to go and, by giving them cover, this is a very dangerous precedent we’re setting.”
Former president Donald Trump. (photo: Getty)
n a Lawfare post in March, based on the public record as it existed then, we considered the Obama and Trump administrations’ approaches to pursuing evidence from reporters in leak cases and concluded that President Trump’s record “wasn’t that different compared to previous presidencies” (emphasis in original).
Consider the following a front-page correction.
This spring, three separate news organizations reported that the Justice Department had notified their journalists that, during the Trump administration, the department had authorized broad, secret demands for the phone and email records of eight reporters across the three outlets to identify confidential sources.
In one case, the administration also secured a court order gagging CNN’s general counsel from informing anyone in the newsroom of an email records demand. The order remained in force until May, months into the Biden administration.
In another, the Trump administration obtained a court order that gagged an email provider from notifying its user, the New York Times. There, the Biden administration later agreed to permit notification to the organization’s deputy general counsel and top executives, who were barred from informing the newsroom. Not until early June did the Justice Department finally drop the demand and dissolve the gag order.
Shortly after the outlet broke the story of the second gag, the Justice Department announced that it would no longer seek source information from journalists in leak cases. Attorney General Merrick Garland directed Deputy Attorney General Lisa Monaco to refer the media seizures to the department’s inspector general.
And, on June 14, the Justice Department met with news executives and the Reporters Committee (where both authors of this post work). Directly following that meeting, the department released a readout stating that “the department will no longer use compulsory process to obtain reporters’ source information when they are doing their jobs,” meaning that the policy change is expected to extend beyond leak matters.
While we are encouraged by these developments, there are still many unanswered questions with respect to the records seizures, all of which the Justice Department authorized in 2020.
Topmost among these questions is why the Justice Department during the Trump administration failed to notify the affected news organizations in advance. One of the most important provisions of an internal policy at the department, often called the News Media Guidelines, includes a presumption that affected journalists be notified before the department attempts to seize their records, with very limited exceptions.
This presumption can be overcome only when “the Attorney General determines that, for compelling reasons, such notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.” The presumption in favor of advance notice was a central reform implemented by the Justice Department under former Attorney General Eric Holder in 2014 after two high-profile cases revealed that prosecutors were snooping in journalists’ communications records without their knowledge. Notice provides journalists the opportunity to challenge the department’s legal demands before the government has seized any data or documents.
Given the age of the records in question, they all date back to newsgathering in 2017, and that at least one relevant investigation had been widely reported in the press, it remains unclear how any of these exceptions could plausibly apply.
In light of these recent revelations, it is now clear that the Justice Department at the end of the Trump administration was markedly more aggressive than the Obama administration in pursuit of journalists in its leak hunts. Before diving into the details, however, it is important to put the timing of these cases in context.
The department sought records from early to mid-2017. On Aug. 4, 2017, one day after reports surfaced in the media of President Trump’s conversations with foreign leaders, Attorney General Jeff Sessions announced a redoubled effort to investigate and prosecute leaks. Sessions noted that the department had received nearly as many criminal leak referrals that year as in the three previous years combined. (The precise number in 2017 was 120 referrals, versus an Obama administration high of 55 in 2013.) He announced that active leak investigations at the department had tripled since January 2017.
Sessions instructed Deputy Attorney General Rod Rosenstein and FBI Director Christopher Wray to “actively oversee” each case and directed that the National Security Division prioritize leak investigations. He also said that the FBI had set up a new counterintelligence unit, and announced that the department would be reviewing “policies that impact leak investigations,” though there is no indication that the Trump administration put in place any changes.
Additionally, the 2020 demands were likely authorized after Attorney General William Barr installed a new prosecutor at the National Security Division in February of that year to “revive” certain leak investigations, so the 2017 anti-leak initiative appears to have flowed into the waning days of the Trump administration.
Below, we survey what we know about the recent records seizures. As the procedural details regarding each affected outlet—the Washington Post, CNN and the New York Times—differ slightly, we discuss each separately and in the chronological order in which the Justice Department sent the relevant notifications to the affected journalists. We also note that the inspector general investigation will look into the seizure of cloud metadata related to members of Congress and Don McGahn (who was White House counsel at the time of the subpoenas) but explain how those incidents are distinct, factually, from the media seizures.
A fuller public accounting beyond what we were able to do here is essential. The public needs to know how the Justice Department attempted to comply with its guidelines, which decisions Attorney General Barr made and which escaped high-level review, and whether the guidelines were simply not up to the task of protecting press interests. The Justice Department’s recent commitments to introduce new policies and refrain from such moves in the future are promising. But full transparency is central to preventing a recurrence in the long term even if new rules are soon in place.
Washington Post
What was sought and what was obtained?
Of the records demands authorized in 2020 and disclosed this spring and summer, the Washington Post seizure was the first to be reported. In brief, perfunctory letters dated May 3, 2021, the Justice Department notified Greg Miller and Ellen Nakashima, currently at the Post, and Adam Entous, formerly at the Post and now at the New Yorker, that their phone records had been seized and that the department had tried to obtain “non-content” email records but had not actually obtained them.
There was no gag order in the Post case and, while the Post has reported that the Justice Department secured an order compelling the production of email non-content records under 18 U.S.C. § 2703(d) (a (d) order), for reasons that remain unclear, the government said it did not secure the records.
The phone records were likely sought using a grand jury subpoena under § 2703(c)(2) of the Stored Communications Act, though they can also be obtained with a (d) order. Courts can issue (d) orders under an intermediate standard—below probable cause but above a subpoena—that “there are reasonable grounds to believe” the records sought “are relevant and material to an ongoing criminal investigation.” Technically, § 2703(d) permits the use of (d) orders to obtain the contents of emails that are opened or have been in storage for more than 180 days, but, in practice, the department uses warrants for content seizures.
What time period was covered by the demands?
According to the department’s letters to the Post, the phone records obtained covered a three and a half month period from April 15 to July 31, 2017, which overlaps with the two-month CNN seizure (June and July 2017) and, for the two weeks between April 15 and April 30, with the New York Times seizure.
Why were the records pursued?
There is no public reporting on the reasons that the records were obtained. The Post noted that, during the relevant time period, the three reporters wrote a story “about classified U.S. intelligence intercepts indicating that in 2016 [then-Senator Jeff Sessions] had discussed the Trump campaign with Sergey Kislyak, who was Russia’s ambassador to the United States,” and that, about a month before, “the same reporters also wrote a detailed story about the Obama administration’s internal struggles to counter Russian interference in the 2016 election.”
But without a concrete, public accounting, observers can only speculate about the government’s reasons.
Who authorized the records demand?
Again, no one knows. The Justice Department confirmed to the Post that the decision to seek the records was made in 2020, during the Trump administration. The notification timeline in these cases is interesting, however.
Under the guidelines, when the presumption in favor of advance notification is overcome, the Justice Department can obtain a 45-day delay in notice and one additional 45-day delay only if the attorney general makes a separate determination that the criteria for delay continue to be met.
That clock is supposed to start to run after the department receives “any return” from the subpoena or court order at issue. Counting back 90 days from the May 3 notification letter would be Feb. 2, after President Biden’s inauguration. But, again, we still do not know the exact timing on when these subpoenas or court orders were authorized, obtained, or issued, or when the records were physically transmitted to the Justice Department.
It is also worth noting that the records seized in each of these cases are supposed to be subject to careful safeguarding rules under the guidelines laid out in additional detail in the Justice Manual, but we don’t know precisely where the records currently reside (though we have no reason to believe that the records are not being handled consistent with the guidelines and Justice Manual).
CNN
What was sought and what was obtained?
According to CNN, on May 13, 2021, the Justice Department notified Barbara Starr, its Pentagon correspondent, that it had sought and received toll records associated with multiple phone lines, including her Pentagon extension, the CNN Pentagon booth, and her home and cell numbers, as well as non-content information associated with Starr’s work and personal email accounts.
As with the Post, the toll records were likely seized pursuant to a grand jury subpoena under § 2703(c)(2) of the Stored Communications Act, while the email records were obtained using a (d) order.
The phone records would have revealed which numbers called or were called by the relevant Starr phone number, the duration of the call and when it took place. The email records would have contained the equivalent information, but, because of the nature of email metadata, could have included other details, like routing data and the size of the email. Also, because email can be “one-to-many,” its metadata is potentially more revelatory than phone records.
Because Starr’s “turner.com” email address was administered by WarnerMedia itself, WarnerMedia received the (d) order for that account’s metadata. It then notified David Vigilante, CNN’s general counsel. But (d) orders often include a “preclusion of notice” order—a gag—under § 2705(b) of the Stored Communications Act, which prohibits the service provider from notifying the subscriber of the records demand.
Vigilante was thus barred from notifying Starr of the (d) order for 10 months, during which time CNN sought to limit its scope before a magistrate judge, and then a district court judge, at the U.S. District Court for the Eastern District of Virginia. The magistrate judge initially granted CNN’s request, but, following submission of a supplemental classified declaration, he ordered CNN to comply with the initial order. On appeal to the district court judge in December 2020, the court agreed to exclude metadata for purely internal emails from the scope of the order.
On Jan. 26, 2021, following the government’s filing of a motion for reconsideration of the December 2020 order, CNN was able to negotiate a narrowing of the “turner.com” (d) order, which triggered the clock that led to the May 13 notification. Vigilante was able to inform Starr of the order on May 13, and CNN reported on the seizure on May 20.
Most of the material in that case has been unsealed. The case involved only the “turner.com” work account, not Starr’s personal account—though the reporting suggests that the Justice Department was successful in obtaining email metadata from that personal account as well.
What time period was covered by the demands?
According to CNN, the phone and email records sought covered a two-month period from June 1 to July 31, 2017. (Note that the Sessions speech happened four days later, on Aug. 4.)
Why were the records pursued?
That is a complete cipher. Starr’s beat is the Department of Defense, and she was not reporting on stories related to Russia and the 2016 election, unlike the Post reporters discussed above and the New York Times reporters discussed below. CNN noted that, during the two-month period, Starr reported on “US military options in North Korea that were ready to be presented to Trump, as well as stories on Syria and Afghanistan.”
Who authorized the records demand?
We still don’t know. Under the news media guidelines, the attorney general must approve both subpoenas and (d) orders. The “turner.com” (d) order was sent to WarnerMedia on or shortly before July 17, 2020, the day that CNN’s general counsel received the order, which aligns with Attorney General Barr’s time in office.
New York Times
What was sought and what was obtained?
According to the New York Times, on June 2, 2021, the government notified four reporters—three currently at the Times and one former Times reporter—that their phone records had been seized and email records sought but not obtained. The current Times reporters are Matt Apuzzo, Adam Goldman and Michael Schmidt; the former is Eric Lichtblau.
On June 4, the Times reported that the (d) order for the reporters’ email metadata included a § 2705(b) gag that initially barred Google, the Times’ email provider, from notifying anyone at the newspaper. Google apparently resisted the gag, insisting that it be able to notify the Times’s newsroom lawyer and deputy general counsel, David McCraw. On March 2, 2021, the government agreed and McCraw was then able to negotiate further notice to the Times’s publisher, chief executive and outside counsel.
The Times continued to urge the Justice Department to withdraw the (d) order entirely, arguing, among other things, that the order violated the news media guidelines, the First Amendment, and guidance from the department’s computer crime section that stipulates records should, when possible, be sought from the enterprise itself, rather than from a third-party communications provider. The Times said it was prepared to go to court to challenge the order if the Justice Department did not act on its own.
On June 2, 2021, following the revelations that records had been sought from CNN and the Washington Post, as well as President Biden’s statement that such seizures are “simply, simply wrong,” the Justice Department agreed to move to quash the (d) order. The department also notified the Times of the phone records seizure on June 2, which the Times then disclosed in a news story. The Times ran a story on the gag on June 4, the day the court signed the order quashing the email demand, ending the confidentiality obligations.
What time period was covered by the demands?
The phone and email records sought in the Times case covered the three and a half months between Jan. 14 and April 30, 2017, which, as noted, overlapped with the Post records demand for the second half of April.
Why were the records pursued?
In a March 16, 2021, letter to the Justice Department, the Times wrote it is “patently clear” that the underlying investigation in the Times case relates to the publication of allegedly classified information in an April 22, 2017, article by the four targeted reporters concerning former FBI Director James Comey’s handling of issues related to Russia and the 2016 presidential election.
The existence of that investigation had been reported by the Times and the Post in January 2020.
According to the Post, prosecutors had begun “asking questions about news reporting in 2017 about a classified document—thought to be a Russian intelligence product—that described how then-Attorney General Loretta E. Lynch had purportedly assured someone in Hillary Clinton’s presidential campaign that the investigation into Clinton’s use of a private email server while secretary of state would not push too deep.”
That fact is directly relevant to the Times’s (d) order because the magistrate judge at the U.S. District Court for the District of Columbia had found reasonable grounds to believe that notifying the Times would “seriously jeopardize the ongoing investigation, including by giving targets an opportunity to destroy or tamper with evidence.”
As the investigation itself was public knowledge, notification would not have increased that risk when prosecutors applied for the gag. Separately, the Justice Department has confirmed that none of the reporters at the Post, CNN or the Times were the targets of the relevant investigation, further reducing any risk that notice to the reporters or the affected news organizations could have led to evidence tampering.
Who authorized the records demand?
Again, we do not know. The initial (d) order was signed by the magistrate judge in D.C. on Dec. 30, 2020, and filed on Jan. 5, 2021, when Jeffrey Rosen was the acting attorney general. But the initial authorization for the (d) order (and both the authorization and transmittal of the phone records demand) could have come at some point before, when Attorney General Barr was still in office.
On June 8, the Times asked the court to unseal the legal filings in the (d) order case, including the application for the order, the order’s modification to permit notice to McCraw, and all related filings. That case is pending, and the government’s response to the Times’s application is due July 21.
The Public Officials’ Metadata
The inspector general investigation looking into the media records seizures was announced a day after reports that the Justice Department under the Trump administration used subpoenas to cloud communications providers to obtain subscriber information that ended up collecting metadata from public officials and their families.
These public official subpoenas are distinguishable from the media records seizures for the reasons outlined below.
On June 10, 2021, the Times reported that Apple had notified at least a dozen people tied to the House Permanent Select Committee on Intelligence, including current chair Adam Schiff of California and Rep. Eric Swalwell, also of California, as well as aides and family members (one was a minor), that their account data had been subpoenaed in 2017 and early 2018 (when Schiff was the ranking member). Three days later, the Times reported that the leak investigation prompting the subpoenas “appeared to have been primarily focused on Michael Bahar, then a staff member on” the committee.
In that story, the Times reported that Apple also notified former White House counsel Don McGahn in May, and earlier his wife, that their data had been subpoenaed in 2018. It is unclear whether the McGahn subpoenas were related to a leak investigation, though the report noted that there was a possible leak around that time that alleged President Trump had ordered McGahn in June 2017 to have Special Counsel Robert Mueller removed from the Russia probe.
Based on the public reporting, it appears that the subpoenas to Apple were for subscriber information that would help match phone numbers, email addresses or devices with their owners. In other words, investigators may have obtained the communications logs from an identified suspect and then tried to figure out who that suspect had spoken to, which swept in the congressional and McGahn data.
Further details could change this analysis. But it’s important to note that the media subpoenas and court orders were directly targeted at the reporters in a search for their alleged sources. Prosecutors were trying to peer into the newsroom and journalistic process—that was the point.
This should not diminish concern over the potential that leak investigations themselves could be misused to investigate and potentially prosecute disclosures that are merely embarrassing to public officials, or where the newsworthiness outweighs any risk to national security. That potential means that leak investigations can be unduly intrusive beyond just the press.
But turning the investigative focus directly to the reporter, which can identify confidential sources other than the specific suspect and give the government visibility into the vast web of stories about the government that the reporter might be working on, is, as the guidelines confirm, an “extraordinary” move.
The Holder-era revisions to the news media guidelines were significant because they were supposed to ensure that notice to the newsroom of a possible legal demand was the name of the game. Without it, news organizations could not avail themselves of the protections of the guidelines. The cluster of 2020 cases suggests that in the Trump administration, despite the rules, no-notice subpoenas were still a regular occurrence, undercutting the earlier reforms.
We are heartened by President Biden’s statements and encouraged by Attorney General Garland’s commitment not to use compulsory process against reporters in department cases going forward. But tension in government-press relations transcends parties, presidents and attorneys general. We need durable protections for newsgathering beyond the current administration. A full accounting of what happened in these three Trump-era cases will help both the Justice Department and the press figure out exactly what durability should look like.
Richard Nixon. (photo: National Archives and Records Administration)
I’m proud that Dispatch Books published Alfred McCoy’s striking imperial history, In the Shadows of the American Century: The Rise and Decline of U.S. Global Power, a hit that couldn’t have been more ahead of its time. Note the particularly apt use of the word “decline” in relation to imperial America in a volume put out in 2017. (Note as well that, for a $100 contribution — $125 if you live outside the U.S. — you can still get a signed, personalized copy of that book at our donation page.) And this October, we’re preparing to put out McCoy’s newest look at imperial history, To Govern the Globe: World Orders and Catastrophic Change. In a tempestuous narrative covering five continents and seven centuries, he explains how a succession of catastrophes — from the devastating Black Death of 1350 through the coming climate crisis of 2050 — produced a relentless succession of imperial orders. As Andrew Bacevich writes of the new book: “To Govern the Globe is history on an epic scale — sweeping, provocative, and unsparing in its judgments. Alfred McCoy’s immensely readable narrative spans centuries, charting the rise and fall of successive world orders down to our own present moment shaped by China’s emergence as a great power and the blight of climate change.” It’s never too early to pre-order a copy! Tom]
Between the 1960s and 2021, the United States fought two disastrous drug wars in distant lands and historian Alfred McCoy covered them both. The initial one was, of course, the Vietnam War, which, as he reminds us today, left staggering numbers of American soldiers hooked on heroin. In those years, McCoy quite literally tramped the “heroin trail” in Laos, “meeting gangsters and warlords in isolated places,” while covering the grim role our leading intelligence agency played in drugging American troops, first for Harper’s Magazine and then in his book (which the CIA tried to suppress), The Politics of Heroin: CIA Complicity in the Global Drug Trade.
America’s second disastrous drug war was, of course, the Afghan one that the U.S. is now, at least theoretically, leaving in its wake almost 20 years after its 2001 invasion. Meanwhile, the Taliban, which kept itself afloat all those years at least in part on money made from growing, refining, and marketing opium, now threatens to fell the U.S.-supported regime there. And McCoy covered that drug war (even if from a distance) for TomDispatch. From 2010 on, he’s written vividly and repeatedly about how, as he put it in 2016, “Washington’s single and singular accomplishment in all its years there has been to oversee the country’s transformation into the planet’s number one narco-state.” How grimly true.
And for this, unfortunately, there’s a long history. As he wrote in 2010 in the first of his TomDispatch pieces on the subject, the CIA’s covert Afghan war against the Soviet Union in the 1980s “served as the catalyst that transformed the Afghan-Pakistan borderlands into the world’s largest heroin-producing region.” Oh, the irony of it all!
Today, McCoy, author of In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and the upcoming To Govern the Globe: World Orders and Catastrophic Change, turns to the third drug war this country has been involved in since the Vietnam era. As it happens, this one has been taking place not thousands of miles away in distant war zones, but right here at home and it couldn’t be grimmer. Tom
-Tom Engelhardt, TomDispatch
America’s Drug Wars
Fifty Years of Reinforcing Racism
ifty years ago, on June 17, 1971, President Richard Nixon stood before the White House press corps, staffers at his side, to announce “a new, all-out offensive” against drug abuse, which he denounced as “America’s public enemy number one.” He called on Congress to contribute $350 million for a worldwide attack on “the sources of supply.” The first battle in this new drug war would be fought in South Vietnam where, Nixon said, “a number of young Americans have become addicts as they serve abroad.”
While the president was declaring his war on drugs, I was stepping off a trans-Pacific flight into the searing tropical heat of Saigon, the South Vietnamese capital, to report on the sources of supply for the drug abuse that was indeed sweeping through the ranks of American soldiers fighting this country’s war in Vietnam.
As I would soon discover, the situation was far worse than anything Nixon could have conveyed in his sparse words. Heroin vials littered the floors of Army barracks. Units legendary for their heroism in World War II like the 82nd Airborne were now known as the “jumping junkies.” A later survey found that more than a third of all GIs fighting the Vietnam War “commonly used” heroin. Desperate to defeat this invisible enemy, the White House was now about to throw millions of dollars at this overseas drug war, funding mass urinalysis screening for every homeward-bound GI and mandatory treatment for any who tested positive for drugs.
Even that formidable effort, however, couldn’t defeat the murky politics of heroin, marked by a nexus of crime and official collusion that made mass drug abuse among GIs possible. After all, in the rugged mountains of nearby Laos, Air America, a company run by the CIA, was transporting opium harvested by tribal farmers who were also serving as soldiers in its secret army. The commander of the Royal Lao Army, a close ally, then operated the world’s largest illicit lab, turning raw opium into refined heroin for the growing numbers of GI users in neighboring Vietnam. Senior South Vietnamese commanders colluded in the smuggling and distribution of such drugs to GIs in bars, in barracks, and at firebases. In both Laos and South Vietnam, American embassies ignored the corruption of their local allies that was helping to fuel the traffic.
Nixon’s Drug War
As sordid as Saigon’s heroin politics were, they would pale when compared to the cynical deals agreed to in Washington over the next 30 years that would turn the drug war of the Vietnam era into a political doomsday machine. Standing alongside the president on that day when America’s drug war officially began was John Erlichman, White House counsel and Nixon confidante.
As he would later bluntly tell a reporter,
“The Nixon White House had two enemies: the antiwar left and black people… We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news.”
And just in case anyone missed his point, Erlichman added, “Did we know we were lying about the drugs? Of course, we did.”
To grasp the full meaning of this admission, you need to begin with the basics: the drug war’s absolute, unqualified, irredeemable failure. Just three pairs of statistics can convey the depth of that failure and the scope of the damage the war has done to American society over the past half-century:
* Despite the drug war’s efforts to cut supplies, worldwide illicit opium production rose 10-fold — from 1,200 tons in 1971 to a record 10,300 tons in 2017.
* Reflecting its emphasis on punishment over treatment, the number of people jailed for drug offenses would also grow 10-fold from 40,900 in 1980 to 430,900 in 2019.
* Finally, instead of reducing domestic use, the drug war actually helped stimulate a 10-fold surge in the number of American heroin users from just 68,000 in 1970 to 745,000 in 2019.
In addition, the drug war has had a profound impact on American society by perpetuating, even institutionalizing, racial disparities through the raw power of the police and prisons. Remember that the Republican Party saw the Voting Rights Act of 1965, which ended decades of Jim Crow disenfranchisement for Blacks in the deep South, as a rare political opportunity. In response, Nixon and his men began developing a two-part strategy for winning over white voters in the South and blunting the Democratic advantage with Black voters nationwide.
First, in the 1970 midterm elections, the Republicans began pursuing a “Southern strategy” of courting disgruntled white-supremacist voters in the South in a successful attempt to capture that entire region politically. Three years later, they launched a relentless expansion of the drug war, policing, and prisons. In the process, they paved the way for the mass incarceration of African Americans, denying them the vote not just as convicts but, in 15 states, for life as ex-convicts. Pioneering this cunning strategy was New York’s Republican governor Nelson Rockefeller. The harsh mandatory penalties of 15 years to life for petty drug possession he got the state legislature to pass raised the number of people imprisoned on drug charges from 470 in 1970 to 8,500 in 1999, 90% of them African-American or Latinx.
Such mass incarceration moved voters from urban Democratic bailiwicks to rural prisons where they were counted in the census, but otherwise disenfranchised, giving a bit of additional help to the white Republican vote in upstate New York — a winning strategy Republicans elsewhere would soon follow. Not only did the drug war let conservatives shave opposition vote tallies in close elections, but it also dehumanized African Americans, justifying repressive policing and mass incarceration.
None of this was pre-ordained but the result of a succession of political deals made during three presidencies — that of Nixon, who started it; of Ronald Reagan, whose administration enacted draconian punishments for drug possession; and of the Democrat Bill Clinton, who expanded the police and prisons to enforce those very drug laws. After remaining remarkably constant at about 100 prisoners per 100,000 population for more than 50 years, the U.S. incarceration rate started climbing relentlessly to 293 by the end of Reagan’s term in 1990 and 464 by the end of Clinton’s in 2000. It reached a peak of 760 by 2008 — with a racial bias that resulted in nothing less than the “mass incarceration” of African Americans.
Reagan Domesticates the Drug War
While Nixon fought his war largely on foreign battlefields trying, and failing, to stop narcotics at their source, the next Republican president, Ronald Reagan, fully domesticated the drug war through ever harsher penalties for personal use and a publicity campaign that made abstinence a moral virtue and indulgence a fiercely punishable vice. Meanwhile, he also signaled clearly that he was determined to pursue Nixon’s Southern strategy by staging a major 1980 election campaign rally in Neshoba County, Mississippi, where three civil rights workers had previously been murdered.
Taking office in 1981, Reagan found, to his surprise, that reviving the drug war at home had little public support, largely because the outgoing Democratic administration had focused successfully on drug treatment rather than punishment. So, First Lady Nancy Reagan began crisscrossing the country, while making TV appearances with choruses of cute kids wearing “Just Say No” T-shirts. Even after four years of the First Lady’s campaign and the simultaneous spread of crack cocaine and cocaine powder in cities and suburbs nationwide, only about 2% of the electorate felt that drug abuse was the nation’s “number one problem.”
Then personal tragedy provided Reagan with the perfect political opportunity. In June 1986, just a day after signing a multimillion-dollar contract with the NBA’s Boston Celtics, college basketball sensation Len Bias collapsed in his dorm at the University of Maryland from a fatal cocaine overdose. Five months later, President Reagan would sign the Anti-Drug Abuse Act, aka the “Len Bias Law.” It would lead to a quantum expansion of the domestic drug war, including a mandatory minimum sentence of five years just for the possession of five grams of cocaine and a revived federal death penalty for traffickers.
It also put into law a racial bias in imprisonment that would prove staggering: a 100:1 sentencing disparity between those convicted of possessing crack-cocaine (used mainly by inner-city Blacks) and those using cocaine powder (favored by suburban whites) — even though there was no medical difference between the two drugs. To enforce such tough penalties, the law also expanded the federal anti-drug budget to a massive $6.5 billion.
In signing that law, Reagan would pay special tribute to the first lady, calling her “the co-captain in our crusade for a drug-free America” and the fight against “the purveyors of this evil.” And the two of them had much to take credit for. After all, by 1989, an overwhelming 64% of Americans had come to feel that drugs were the nation’s “number one problem.” Meanwhile, thanks largely to the Anti-Drug Abuse Act, Americans jailed for nonviolent drug offenses soared from 50,000 in 1980 to 400,000 in 1997. Driven by drug arrests, in 1995 nearly one-third of all African-American males between 20 and 29 would either be in prison or on parole.
Clinton’s All-Too-Bipartisan Drug War
If those two Republican presidents were adept at portraying partisan anti-drug policies as moral imperatives, their Democratic successor, Bill Clinton, proved adept at getting himself reelected by picking up their seductive rhetoric. Under his administration, a racialized drug policy, with its disenfranchisement and denigration of African Americans, would become fully bipartisan.
In 1992, two years after being elected president, Clinton lost control of Congress to Republican conservatives led by House Speaker Newt Gingrich. Desperate for something he could call a legislative accomplishment, he tacked hard right to support the Violent Crime Control Act of 1994. It would prove the largest law-enforcement initiative in American history: nearly $19 billion dollars for 100,000 new cops to sweep the streets for drug offenders and a massive prison-expansion program to house those who would now be sentenced to life after three criminal convictions (“three strikes”).
A year later, when the non-partisan U.S. Sentencing Commission recommended that the 100:1 disparity in penalties for crack-cocaine and cocaine powder be abolished, along with its blatant racial bias, Clinton flatly rejected the advice, signing instead Republican-sponsored legislation that maintained those penalties. “I am not,” he insisted, “going to let anyone who peddles drugs get the idea that the cost of doing business is going down.”
The country’s Black political leaders were eloquent in their condemnation of this political betrayal. The Reverend Jesse Jackson, a former Democratic presidential candidate, claimed Clinton knew perfectly well that “crack is code for black” and labelled the president’s decision “a moral disgrace” by a man “willing to sacrifice young black youth for white fear.” The Congressional Black Caucus would similarly denounce the sentencing disparity as “a mockery of justice.”
As they predicted all too accurately, the relentless rise of Black incarceration only accelerated. In the five years following passage of Clinton’s omnibus crime bill, the country added 204 prisons and its inmate population shot up by a mind-boggling 28% to 1,305,300. Of those, nearly half (587,300) were Black, though African Americans made up only 13% of the country’s population.
Facing a tough reelection campaign in 1996, Clinton again worked with hard-right congressional Republicans to pass the Personal Responsibility Work Act, which, as he put it, brought an “end to welfare as we know it.” With that law’s work requirement for welfare, even as unemployment among Black residents of cities like Chicago (left behind by industry) hit 20% to 25%, youth in inner cities across America found that street-level drug dealing was fast becoming their only opportunity. In effect, the Clintons gained short-term political advantage by doing long-term social and economic damage to a core Democratic constituency, the African American community.
Reviving Jim Crow’s Racial Stereotypes
Nonetheless, during his 1996 reelection campaign, Clinton trumpeted such dubious legislative achievements. Speaking at a campaign rally in New Hampshire, for instance, Hillary Clinton celebrated her husband’s Violent Crime Control Act for taking back the streets from murderous minority teenagers. “They are often the kinds of kids that are called ‘super-predators,’” Clinton said. “No conscience, no empathy. We can talk about why they ended up that way, but first we have to bring them to heel.”
The term “super-predator” had, in fact, originated with a Princeton University political scientist, John Dilulio, who described his theory to the first couple during a 1995 White House working dinner on juvenile crime. In an article for a neo-conservative magazine that November, the academic trumpeted his apocalyptic analysis. Based solely on the spottiest of anecdotal evidence, he claimed that “black inner-city neighborhoods” would soon fall prey to such “super predators” — a new kind of juvenile criminal marked by “impulsive violence, the vacant stares, and the remorseless eyes.” Within five years, he predicted, there would be 30,000 “more murderers, rapists, and muggers on the streets” who would “place zero value on the lives of their victims, whom they reflexively dehumanize as just so much worthless ‘white trash.’” This rising demographic tide, he warned, would soon “spill over into upscale central-city districts, inner-ring suburbs, and even the rural heartland.”
By the way, the truly significant part of Hillary Clinton’s statement based on Dilulio’s “analysis” was that phrase about bringing super-predators to heel. A quick quiz. Who or what does one “bring to heel”: (a.) a woman, (b.) a man, or (c.) a child? Answer: (d.) None of the above.
That term is used colloquially for controlling a leashed dog. By implicitly referring to young Black males as predators and animals, Clinton was tapping into one of America’s most venerable and virulent ethnic stereotypes: the Black “buck” or “brute.” The Jim Crow Museum of Racist Memorabilia at Ferris State University in Michigan reports that “the brute caricature portrays black men as innately savage, animalistic, destructive, and criminal — deserving punishment, maybe death… Black brutes are depicted as hideous, terrifying predators.”
Indeed, Southern fiction of the Jim Crow era featured the “Black brute” as an animal predator whose natural prey was white women. In words strikingly similar to those Dilulio and Clinton would later use for their super-predator, Thomas Dixon’s influential 1905 novel The Clansman: A Historical Romance of the Ku Klux Klan described the Black brute as “half child, half animal… a being who, left to his will, roams at night and sleeps in the day, whose speech knows no word of love, whose passions, once aroused, are as the fury of the tiger.” When turned into a movie in 1915 as The Birth of a Nation (the first film ever screened in the White House), it depicted a Black man’s animalistic rape of a virtuous white woman and reveled in the Klan’s retribution by lynching.
In effect, the rhetoric about “super-predators” revived the most virulent stereotype from the Jim Crow lexicon. By the end of President Clinton’s term in 2000, nearly every state in the nation had stiffened its laws on juveniles, setting aside family courts and sending young, mainly minority, offenders directly to adult prisons for long sentences.
Of course, the predicted wave of 30,000 young super-predators never happened. Instead, violent juvenile crime was already declining when Hillary Clinton gave that speech. By the time President Clinton’s term ended in 2001, the juvenile homicide rate had fallen well below its level in 1985.
Amazingly, it would be another 20 years before Hillary Clinton was compelled to confront the meaning of those freighted words of hers. While she was speaking to a donors’ meeting in South Carolina during her 2016 presidential campaign, Ashley Williams, a young Black activist, stood up in the front row and unfurled a small banner that read: “We have to bring them to heel.” Speaking calmly, she asked: “Will you apologize to black people for mass incarceration?” And then she added, “I am not a super-predator, Hillary Clinton.”
When Clinton tried to talk over her, she insisted: “I know that you called black people super-predators in 1994.” As the Secret Service hurried that young woman out of the room amid taunts from the largely white audience, Clinton announced, with a palpable sense of relief, “Okay, back to the issues.”
In its report on the incident, the Washington Post asked Clinton for a comment. In response, she offered the most unapologetic of apologies, explaining that, back in 1994, she had been talking about “violent crime and vicious drug cartels and the particular danger they pose to children and families.”
“As an advocate, as first lady, as senator, I was a champion for children,” she added, though admitting as well that, “looking back, I shouldn’t have used those words.”
That was it. No mention of mass incarceration. No apology for using the power of the White House pulpit to propagate the most virulent of racial stereotypes. No promises to undo all the damage she and her husband had caused. Not surprisingly, in November 2016, the African-American turnout in 33 states — particularly in the critical swing states of Florida, Michigan, Pennsylvania, and Wisconsin — was markedly down, costing her the election.
The Burden of This Past
As much as both Republicans and Democrats might wish us to forget the costs of their deals, this tragic past is very much part of our present. In the 20 years since the drug war took final form under Clinton, politicians have made some relatively inconsequential reforms. In 2010, Congress made a modest cut in the sentencing disparity between the two kinds of cocaine that reduced the prison population by an estimated 1,550 inmates; Barack Obama pardoned 1,700 drug offenders; and Donald Trump signed the First Step Act that released 3,000 prisoners. Add up all those “reforms” and you end up with only 1.5% of those now in prison for drug offenses — just the tiniest drop of mercy in a vast ocean of misery.
So, even 50 years later, this country is still fighting a war on drugs and on non-violent drug users. Thanks to its laws, petty drug possession is still a felony with heavy penalties. As of 2019, this country’s prisons remained overcrowded with 430,900 people convicted of drug crimes, while drug offenders represented 46% of all those in federal penitentiaries. In addition, the U.S. still has the world’s highest incarceration rate at 639 prisoners per 100,000 population (nearly double Russia’s), with 1,380,400 people imprisoned, of whom 33% are Black.
So many decades later, the drug war’s mass incarceration still denies millions of African Americans the right to vote. As of 2020, 48 states refused their convicts the vote, while 34 states imposed a range of restrictions on ex-convicts, effectively denying suffrage to about 2.2 million Blacks, or 6.3% of all African-American adults.
Recent challenges have made more visible the drug war’s once largely invisible mechanisms for denying African Americans their rightful political power as a community. In a 2018 plebiscite, Florida voters restored electoral rights to that state’s 1.4 million ex-convicts, including 400,000 African Americans. Almost immediately, however, Republican governor Ron DeSantis required that 800,000 of those felons pay whatever court costs and fines they still owed before voting — a decision he successfully defended in federal court just before the 2020 presidential election. The effect of such determined Republican efforts meant that fewer than 8% of Florida’s ex-convicts were able to vote.
But above all, Black male drug users are still stigmatized as dangerous predators, as we all saw in the recent trial of Minneapolis police officer Derek Chauvin, who tried to defend kneeling on George Floyd’s neck for nine minutes because an autopsy found that the victim had opioids in his blood. And in March 2020, a paramilitary squad of Louisville police broke down an apartment door with a battering ram on a no-knock drug raid for a suspected Black drug dealer and wound up killing his sleeping ex-girlfriend, medical worker Breonna Taylor.
Maybe now, half a century later, it’s finally time to end the war on drug users — repeal the heavy penalties for possession; pardon the millions of nonviolent offenders; replace mass incarceration with mandatory drug treatment; restore voting rights to convicts and ex-convicts alike; and, above all, purge those persistent stereotypes of the dangerous Black male from our public discourse and private thoughts.
If only…
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Lloyd Austin. (photo: Getty Images)
n the night of June 5, 2017, a soldier stationed at Camp Lemonnier, a sprawling U.S. military base in the sun-bleached African nation of Djibouti, started her first shift with Alpha Company. She wasn’t happy about the new assignment. Transferring to Alpha Company meant joining a team without anyone she knew. There was also talk of sexual harassment within the unit.
Around midnight, she reported for duty at a guard post, where she found herself alone with a male noncommissioned officer who outranked her. He told her that he had been watching her for almost nine months, ever since a pre-deployment ceremony at which he decided that he wanted to “eat her pussy.”
The harassment made her uncomfortable, but she didn’t protest, because she was afraid that the soldier would become violent, she later told military investigators. When it was time for her to rotate to the next post, around midnight, he said she should stay, then stood up and told her to “suck his dick.” She told investigators that he “was not taking no for an answer.” He warned her that if she reported him, no one would believe her, because she had less military experience. Fearing for her safety, she began masturbating his penis before he forced it into her mouth.
The incident is one of 158 cases of sexual crimes — including rape, sexual assault, and abusive sexual contact — involving U.S. military personnel in Africa that were reported over the past decade, according to criminal investigation records from the Army, Navy, and Air Force that The Intercept and Type Investigations obtained through the Freedom of Information Act.
While many of the files are heavily redacted, making it impossible to identify the military personnel involved, they nonetheless shine a light on the operations of U.S. Africa Command, or AFRICOM, whose commanders and troops have been embroiled in a long series of scandals. Even more striking is the fact that the number of incidents described in the files are more than double the Pentagon’s official sexual assault figures for the African continent, highlighting the degree to which the military has failed to properly track cases of sexual offenses, thereby masking the overall severity of the problem.
The Pentagon’s Sexual Assault Prevention and Response Office, or SAPRO, compiles annual reports to Congress that are supposed to include all reported cases of sexual assault involving U.S. military personnel. Between 2010 and 2020, the year of the most recent report, the Pentagon lists just 73 cases of sexual assault in the AFRICOM area of operations. Yet the files obtained by The Intercept and Type Investigations show that military criminal investigators logged at least 158 allegations of sexual offenses in the AFRICOM area of operations during that same period.
The case files reveal that these charges of sexual misconduct involving U.S. military personnel occurred in at least 22 countries in Africa — including 13 nations that do not appear in the annual Pentagon reports. Some of the allegations accuse members of the military; others recount attacks on U.S. personnel by civilians on or near U.S. outposts.
“Those numbers have made me ill,” said Erin Kirk-Cuomo, who served as a combat photographer in the Marine Corps and founded the nonprofit advocacy group Not In My Marine Corps to highlight the issues of sexual assault and harassment. “And I would imagine there are at least five times that number of assaults — just from what we know about unreported sexual assaults in general.”
A Pattern of Assault
AFRICOM is not unique. The problem of sexual misconduct in the military is chronic and widespread, with overseas deployments posing particular dangers. One study found that women with “combat-like experiences” in Afghanistan and Iraq had significantly greater odds of reporting sexual harassment or both sexual harassment and sexual assault. The Pentagon estimates that roughly 20,500 service members experience sexual assault each year, according to the latest Pentagon survey, but only 6,290 official allegations of sexual assault were made in 2020, according to the most recent SAPRO report. This year, the Government Accountability Office also found that the Pentagon had failed to document up to 97 percent of allegations of sexual assault of its civilian employees.
The Department of Defense notes that survivors of sexual assault are often reluctant to come forward for a variety of reasons, including a desire to move on, maintain privacy, and avoid feelings of shame. Yet troops say that even when they do speak out, they often face a military culture and command structure that doesn’t take their allegations seriously and a military justice system that provides little accountability. Only a small percentage of cases are ever prosecuted, and they rarely — about 0.9 percent of the time, according to 2020 statistics — result in convictions for sexual offenses.
Most of the 158 reports identified in the AFRICOM files represent cases in which a member of the armed forces, or someone assaulted by them, wanted to seek justice through the military system. The fact that many of these reports may not be included in the Pentagon’s official records highlights how the military has failed to properly track sexual assault cases and take appropriate action to address the problem.
“I’m not surprised at all,” said retired Col. Don Christensen, a former chief prosecutor for the Air Force who is now the president of Protect Our Defenders, an organization dedicated to combating sexual assault in the military. “Their tracking process is very flawed. You see incomplete data, cases that aren’t tracked. You have missing information and reports that don’t seem to add up.”
A Pentagon spokesperson, Maj. César Santiago, said the Defense Department collects data on sexual assault to inform “policy, program development, and oversight actions” around the issue. “Each year, the Sexual Assault Prevention and Response Office aggregates data on reports of sexual assault, analyzes the results, and presents them in the Department’s Annual Report on Sexual Assault in the Military,” Santiago said in an email.
The findings by The Intercept and Type Investigations come as the Biden administration makes combating sexual assault in the military a major policy goal. In January, as his first directive in office, Secretary of Defense Lloyd Austin issued a memorandum calling on senior Pentagon leaders and top generals to “battle enemies within the ranks” and wipe out the “scourge of sexual assault.”
Currently, commanders decide whether to charge a suspect with a sexual crime and whether a case should result in a general court-martial. Critics note that the system is rife with conflicts of interest. The situation is akin to a corporate executive deciding whether a case involving the sexual assault of one employee by another should go to trial. The military’s mostly male senior officers — who generally lack formal legal training — often doubt survivors, side with the accused, and may pressure survivors not to bring formal charges. There are just a tiny number of court-martial convictions of sex crimes.
On July 2, the Independent Review Commission on Sexual Assault, established by Austin at President Joe Biden’s direction, recommended taking cases outside the chain of command, a change military leaders have long resisted. The commission recommended that independent judge advocates, reporting to a civilian-led Office of the Special Victim Prosecutor, should decide whether to charge an alleged perpetrator of sexual assault and whether that charge should result in a court-martial.
Both Biden and Austin have backed the proposal.
“I strongly support Secretary Austin’s announcement that he is accepting the core recommendations put forward by the Independent Review Commission on Military Sexual Assault (IRC), including removing the investigation and prosecution of sexual assault from the chain of command and creating highly specialized units to handle these cases and related crimes,” Biden said in a statement last week. “For as long as we have abhorred this scourge, the statistics and the stories have grown worse. We need concrete actions that fundamentally change the way we handle military sexual assault.”
It will be up to Congress to amend the Uniform Code of Military Justice. Sen. Kirsten Gillibrand, a leading voice on the issue, also has bipartisan support for a bill that would take prosecution decisions out of the chain of command for major crimes, including rape and sexual assault.
Austin has made the collection of data a centerpiece of his efforts. His January memo directed military leaders to undertake a “frank, data-driven assessment” of sexual assault and harassment prevention programs. “A primary focus should be on how you are conducting oversight to ensure programs and policies are being executed on the ground,” Austin wrote. “Please ensure this assessment includes relevant data over the past decade, victim support efforts, and advocacy.”
A March 2020 report by a military advisory committee lamented, however, the “difficulty in obtaining, uniform, accurate, and complete information on sexual offense cases across the military.” This may help explain the discrepancy between the Pentagon’s annual figures and the AFRICOM files obtained by The Intercept and Type Investigations, a situation that has been advantageous to the military overall.
“They know that transparency and accuracy make them look worse,” Christensen said. “Often people give up and quit looking for this information, so it’s a win-win for them.”
Military Leadership Failures
The night after the alleged assault at the guard post in Djibouti, the female soldier said the same man attempted to assault her again. According to the case file, he tried to kiss her, then said that he wanted a relationship with her and that he would “shower her with gifts.”
After that, the female soldier filed an official complaint, which led to a military protective order prohibiting the man from contacting or communicating with her. Army investigative documents note that an officer believed there was probable cause that a sexual assault had occurred, and the case was referred to a commander to consider disciplinary or administrative action. It’s unclear whether any further action was taken in the case. Because the names of the troops involved are redacted in the case file and the SAPRO reports contain few details, it’s also unclear whether this case is one of the 73 allegations of sexual assault included in the Defense Department’s annual figures.
But the prevalence of these cases at AFRICOM highlights the degree to which military leaders have created a culture in which indiscipline and criminal behavior have been allowed to flourish at the command.
The command’s first chief, Gen. William “Kip” Ward, was investigated for spending hundreds of thousands of dollars on lavish travel and was demoted in 2012 after the Pentagon’s inspector general found that he had engaged in “multiple forms of misconduct,” including misuse of his position and wasting government funds.
In 2013, Maj. Gen. Ralph Baker, the commander of a counterterrorism force in the Horn of Africa, was removed from his job on charges of sexual misconduct. Baker had “forced his hand between [an AFRICOM senior policy adviser’s] legs and attempted to touch her vagina against her will,” according to a criminal investigation file obtained via the Freedom of Information Act. (Demoted to the rank of brigadier general, Baker was allowed to quietly retire.)
Maj. Gen. Joseph Harrington, the commander of U.S. Army Africa, was sacked and stripped of a star after he exchanged a large number of Facebook messages — 1,158 of them between February 12, 2017, and June 3, 2017 — with the spouse of an enlisted soldier. Air Force Lt. Col. Denis Paquette, the commander of a secret U.S. drone base in Tunisia, was dismissed from military service after carrying on a relationship with an airman and impeding the investigation that resulted. Troops stationed at Paquette’s drone base had gained a reputation for heavy drinking and hard partying.
Failures in military leadership in Africa have had fatal consequences. After four U.S. soldiers were killed in a 2017 ambush in Niger, a Pentagon investigation called attention to “a general lack of situational awareness and command oversight at every echelon.”
With little outside oversight, Camp Lemonnier has been the location of a high percentage of alleged sexual assaults of U.S. military personnel on the continent. A former French Foreign Legion outpost that has expanded from 88 acres to nearly 600 acres, Camp Lemonnier serves as a key hub for American counterterrorism operations in Yemen and Somalia. It is the largest U.S. base on the continent, hosting about 5,000 U.S. and allied personnel.
Alleged crimes at Camp Lemonnier, according to the AFRICOM files, include the following:
- In 2013, an investigation by Navy criminal investigators “revealed allegations of a history of sexually inappropriate comments and behavior” by an Air Force staff sergeant who harassed and touched female subordinates, including an instance in which he unzipped the blouse and forcibly spread the legs of a subordinate while she was on duty at a guard shack.
- In March 2015, a soldier allegedly plied a 20-year-old specialist with more than the allowed two alcoholic drinks, followed her back to her quarters, and sexually assaulted her. For weeks, the soldier continued to harass the specialist, walking into her quarters uninvited as well as kissing and touching her. She said she went along with it for fear of upsetting their professional relationship but eventually reported the incident. The final report by Army investigators notes that the allegations “could not be substantiated or refuted,” and the case was closed.
- In August 2015, a Navy chief yeoman reported that she was “hit, bit, and choked” as well as sexually assaulted by a U.S. Army staff sergeant.
- In April 2016, a specialist with the Army’s 2nd Battalion, 124th Infantry said that while sitting outside her quarters to use the Wi-Fi, another soldier began chatting her up and invited her to his room. When she declined, the soldier grabbed her hand and began pulling her away, eventually lifting her up and carrying her to his quarters. There, he proceeded to kiss her and grope her and tried to pull down her pants. She was able to escape when the perpetrator’s roommate walked in. The perpetrator then walked back to the specialist’s quarters and tried to kiss her again, then took her hand and attempted to place it on his penis, according to criminal investigative files.
- In June 2017, a Navy Exchange massage therapist said that a master-at-arms third class demanded “extra services” from her. She refused to perform any sexual acts and reported him. During the investigation, another massage therapist, a civilian, said the same man had groped her during a massage and also asked for “extra services.” After the massage therapists declined to provide further information, Navy investigators closed the case.
All of these incidents, whether the alleged victim was a civilian or a member of the military, are supposed to be included in the Pentagon’s Defense Sexual Assault Incident Database and listed in the annual SAPRO reports to Congress. But it’s not clear whether they are. The annual reports do not tell the whole story.
“Zero Data”
According to the SAPRO accounting over the last decade, sexual assaults involving U.S. military personnel were reported in nine African countries: Djibouti, Ghana, Kenya, the Seychelles, Somalia, South Africa, Tunisia, Uganda, and Zimbabwe. John Manley, an AFRICOM spokesperson, touted the “wealth of data” in the SAPRO reports, which he said represented “all [Sexual Harassment/Assault Response and Prevention program] reporting throughout DoD.”
But the AFRICOM files obtained by The Intercept and Type Investigations include cases not just from those nine nations, but also from 13 others: Algeria, Burkina Faso, Cameroon, Chad, Ethiopia, Liberia, Madagascar, Malawi, Morocco, Niger, Rwanda, Senegal, and South Sudan. Those 13 countries do not appear anywhere in the annual reports.
“Overseas, it’s like the Wild West,” said Kirk-Cuomo. “In these deployed situations, there’s no oversight, and people feel like they can get away with it. There is no tracking. There is basically zero data on sexual assaults coming out of any of these places.”
The redacted information in the investigative files makes it difficult to match the 73 cases in the Pentagon’s annual SAPRO reports with the 158 cases in the AFRICOM files. Whether some cases that occurred in Africa are logged elsewhere in SAPRO data is unclear because AFRICOM doesn’t track sexual assaults and the Pentagon declined to provide raw data or clarify the discrepancies. More than two years after The Intercept and Type Investigations first requested an interview with a representative from SAPRO, Santiago, the Pentagon spokesperson, replied, “Unfortunately, we do not have anyone available.”
One case that was omitted from the official Pentagon filings was an alleged assault of a soldier in Senegal.
On February 13, 2015, the soldier, who was supporting the U.S. response to the Ebola outbreak in West Africa, left a dinner with co-workers to return to her hotel in Senegal’s capital, Dakar. While walking past a group of young men, she reported that one of them grabbed her and slammed her into an alley wall. Another pulled down her pants. The men “were laughing and appeared to be joking as they were groping her and digitally penetrating her,” according to the file. The woman believed she was gang raped as well, although she had difficulty recalling details of the latter part of the assault.
The AFRICOM files include a copy of an Army criminal investigation report detailing the allegations. But Senegal is not mentioned in any of the Pentagon’s annual reports on sexual assault from 2010 to 2020.
“U.S. Africa Command has no record of these allegations,” said AFRICOM spokesperson Manley.
The AFRICOM files highlight the ways in which the military can actively discourage survivors of sexual assault from coming forward with their allegations.
Survivors of sexual assault said they felt reluctant or afraid to aid investigations, pressured to change their accounts, and constrained by their chain of command, according to the AFRICOM files. Some thought that they would not be believed and doubted that reporting an assault would lead to a positive outcome. Others were ignored, laughed off, suspected of exaggerating, or accused by leadership of lying about the abuse.
“Women are regularly treated like they’re the problem,” said Amy Braley Franck, who served as the Sexual Harassment/Assault Response and Prevention program manager for U.S. Army Africa from 2015 to 2018. “They aren’t cared for, because the system doesn’t operate properly. And there’s no oversight.”
Members of the military who want to report a sexual assault say the system for doing so is difficult to navigate, even at the largest and best-resourced U.S. base in Africa. “In Djibouti, the Navy SHARP office is supposed to have a full-time staff member on the camp — which sometimes they do, but sometimes they don’t,” said Braley Franck. “Several times, I called their hotline number to get somebody to take care of a service member — because that was their responsibility — and nobody answered their phone.”
A spokesperson at Camp Lemonnier did not respond to repeated requests for comment about the allegation.
For instance, a soldier who reported being sexually assaulted while deployed in Africa, and who spoke to The Intercept and Type Investigations on the condition of anonymity, said she was unaware of even how to locate SHARP personnel or military criminal investigators on her base.
“Everyone thinks it’s just so easy to go talk to a SHARP representative or CID, but it’s not,” the soldier said.
The soldier highlighted another issue that has plagued the military: the failure of military leaders to take sexual assault seriously.
After she reported being assaulted, she said her superiors disregarded her allegations — although Army investigators later corroborated her claims. And it wasn’t her first such experience. Referring to a prior assault, she said she was frustrated by the process of seeking justice. “I learned that in the end nothing really happened, and I was told the defense would be able to change the story,” she said. The experiences left her embittered toward her superiors and skeptical of the military justice system.
“So many bad things happened when I did do the right thing, so I’m worried about what would happen if I did it again,” she said. “Leadership is not taking any accountability. If your soldiers are abusive, are acting like perverts, you need to put a stop to it. But leadership looks at it like, ‘Not my business. Not my problem.’”
Meeting the Enemy
The soldier was assaulted at Camp Lemonnier along with an Army specialist. The specialist, whose name is being withheld by The Intercept and Type Investigations, told Army criminal investigators that a delivery person from a local hardware vendor assaulted them as they were unloading supplies in April 2014 — grabbing them, grinding on them, kissing them, and licking their necks. They repeatedly shoved him away and shouted “No!”
“He was a creep and felt us up,” the specialist said.
But when the women reported the incident to their platoon sergeant, he brushed them off.
“Our sergeant’s response was, ‘I don’t give a fuck, write your congressman,’” the specialist told investigators.
The specialist said their commanding officer later joked that the locals liked “to play grab-ass with my soldiers.”
The soldier corroborated the specialist’s account in contemporaneous testimony to criminal investigators and in recent interviews with The Intercept and Type Investigations. It is unclear whether their case is included in the Pentagon’s annual figures. But years later, the specialist is still angry about the response from her commanding officer. “It really pissed me off,” she said. “At first, I couldn’t believe that it was just written off. But it happens all the time.”
The specialist was never the same after her report of the assault was shrugged off, according to the soldier who was assaulted alongside her. She went from a model soldier to one who didn’t care.
When she redeployed to Fort Polk, Louisiana, later in 2014, the specialist started smoking marijuana, even though she knew she might fail a drug test. When she did fail, she didn’t mount a defense, accepting a less-than-honorable discharge to expedite her departure from the Army.
Hers is a common story. A 2016 Human Rights Watch investigation found significant evidence of less-than-honorable or “bad” discharges being meted out to military personnel who reported sexual assault. And a Rand study released in February found that sexual assault doubled the odds that a service member would separate from the military in the ensuing 28 months. The research also showed that service members who said they were sexually harassed were 1.7 times more likely to leave the military over the same time span.
“The services are losing at least 16,000 manpower years prematurely subsequent to sexual assault and sexual harassment in a single year,” the Rand researchers wrote. “Furthermore, members who separate from service because of sexual assault or sexual harassment are likely forgoing considerable compensation relative to continuing their service; indeed, some victims likely give up hundreds of thousands of dollars in lifetime earnings.”
When a Navy criminal investigator asked the specialist what the worst part about the assault by the delivery person was, she didn’t mention the details of the crime itself. Instead, she said, the worst part was “knowing your leadership did not care.”
This betrayal was the hardest lesson of her military career.
“You think it’s enemies — people overseas — that you’ll need to fight,” she told The Intercept and Type Investigations. “You realize later that you don’t only have to fight enemies overseas, but also the people around you.”
Brazil's president Jair Bolsonaro. (photo: Andre Borges/NurPhoto/Getty Images)
Citing what it said were audio recordings of Bolsonaro’s former sister-in-law explaining his role in the alleged racket, UOL said the racket involved hiring close associates as employees and then receiving a cut of their public salaries back from them.
The UOL report is the first time Bolsonaro has been directly implicated in such a scheme, known locally as rachadinha.
Rio de Janeiro state prosecutors have formally pressed charges against federal Senator Flavio Bolsonaro, the president’s eldest son, over his alleged participation in a similar racket when he was a state lawmaker.
Monday’s report comes as Bolsonaro is facing widespread public anger and mass protests over his handling of the COVID-19 pandemic – and fielding questions about alleged corruption in the government’s vaccine procurement efforts.
The populist leader was elected in 2018 on a promise to root out corruption after several high-profile scandals rocked Brazil.
But Bolsonaro’s handling of the coronavirus, which has killed more than 524,000 people across the South American nation, has caused a steep decline in his popularity – and he faces a Senate commission investigation into his government’s pandemic policies.
Thousands of people protested across Brazil during the weekend to demand his resignation over the crisis.
Brazilian Supreme Court Justice Rosa Weber also on Saturday authorised a criminal investigation into Bolsonaro’s response to allegations of potential corruption within his health ministry in the process of procuring an Indian COVID-19 vaccine.
He has been implicated in alleged irregularities surrounding a 1.6 billion reais ($315m) contract signed in February with a Brazilian intermediary of the vaccine’s maker, Indian pharma company Bharat Biotech, for 20 million doses. Bolsonaro has denied any wrongdoing.
The UOL report is based on audio recordings of Bolsonaro’s former sister-in-law, Andrea Siqueira Valle, provided by a source.
In one recording, Siqueira Valle explains that her brother, André Siqueira, who was also on Bolsonaro’s payroll, was fired for refusing to hand back the agreed amount to the now-president.
“André had a lot of trouble because he never returned the right money that had to be returned,” she said on the recording.
“Eventually, Jair said … ‘Enough. You can get rid of him because he never gives me the right amount of money’.”
Bolsonaro’s office declined to comment to the Reuters news agency. A lawyer representing Bolsonaro contacted by UOL denied illegalities.
The recent scandals could pose a problem for Bolsonaro as Brazil prepares for presidential elections next year.
Former left-wing President Luiz Inacio Lula da Silva is expected to run – but has not confirmed his candidacy – and recent polling shows Lula stands a good chance of defeating Bolsonaro.
Plastic bails, left, and aluminum bails, right, are photographed at the Green Waste material recovery facility on Thursday, March 28, 2019, in San Jose, California. (photo: Aric Crabb/Digital First Media/Bay Area News/Getty Images)
voiding and better managing plastic waste should receive much greater attention by the German government in its bid to achieve a climate neutral economy, economic research institute DIW said in an analysis. Producing and disposing of one tonne of plastic on average causes about five tonnes of CO2 emissions, the researchers said. The recycling quota of the material in Germany is less than 20 percent of the total volume, while about two-thirds are being incinerated, causing further emissions.
“A whole range of political interventions is needed to fully tap into the emissions reduction potential of a circular economy,” the DIW concluded, adding that German and European climate targets could only be achieved if circularity concepts are strengthened for all base materials. “Betting on low-emissions production alone won’t be enough,” researcher Frederik Lettow commented. Base materials producers and waste combustion are largely exempt from EU emissions allowance trading, which severely hampers the development of circular economy concepts in the sector, the DIW said.
Besides fully integrating plastic production and waste management in the emissions trading scheme, the researchers call for rethinking packaging design and promoting recycling, which could be facilitated through a pricing system for plastic packaging and clearer regulation of the materials allowed in production.
The EU’s bid for climate neutrality puts a focus on the future of generating electricity by incinerating waste. The fiercely disputed process emits CO2 and toxins, although its proponents point out that it prevents even greater environmental damage from landfill sites. While some back “waste to energy” plants to complement renewable electricity as part of a decarbonised future, its critics urge an immediate phase-out.
Packaging waste has reached ever higher levels in recent years in Germany and amounted to about 18.7 million tonnes in 2017, which roughly translates into 226 kilogrammes of waste per capita in this category.
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