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12 July 21
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he meeting was rushed and, for Jamal Khashoggi, as risky as they come. The famed Saudi journalist, living in exile in the suburbs of northern Virginia, was furious with his government. He had just learned that it had imposed a travel ban on his adult son, blocking him from leaving Saudi Arabia — a clear punishment for Khashoggi’s increasingly forceful criticisms of Crown Prince Mohammed bin Salman.
And so, on the morning of Oct. 26, 2017, an agitated Khashoggi did something that for him would have been unthinkable only a few years earlier. He called a former FBI agent working for the families of 9/11 victims who were suing his government and asked to get together right away to discuss how he could help them.
Khashoggi’s rendezvous that morning with ex-agent Catherine Hunt at a northern Virginia coffee shop has long been a subject of mystery and intrigue. Why would Khashoggi — once a Saudi spin doctor who vigorously defended his country over the events of 9/11 — want to talk to a representative of the lawyers seeking to hold his government accountable for the terrorist attack? And even more significant, did senior Saudi officials know what he was up to that morning? And if they did know, did that play a role in his brutal slaughter inside the Saudi Consulate in Istanbul less than a year later?
In a special bonus episode of the Yahoo News podcast "Conspiracyland," Hunt — a veteran agent who worked counterterrorism and counterintelligence cases from Los Angeles to Baghdad — provides an exclusive account of her strange encounter with the Saudi journalist. It comes at a time when the lawyers for the victims’ families are entering a new and crucial phase of their case, having recently deposed three of their most important witnesses: a former Saudi Embassy official, a reputed Saudi intelligence operative and a radical imam at a Saudi-government-funded mosque, all of whom were suspected for years by the FBI of having provided assistance to two of the al-Qaida hijackers in the run-up to 9/11.
How strong a case the families have against the Saudi government remains far from clear, given that those and other depositions remain covered by a court-imposed gag order as well as a “state secrets” privilege imposed by former Attorney General William Barr that has blocked key details about the FBI investigation into the Saudi role in 9/11 from becoming public. (The lawyers for the families — with backing from members of Congress — are asking current Attorney General Merrick Garland to lift the privilege.)
But either way, Khashoggi’s meeting with Hunt stands out. It represents a tantalizing moment when the 9/11 families and their legal team, at least for a brief moment, seemed on the verge of getting the cooperation of a well-connected Saudi insider with intimate knowledge of his country’s interactions with al-Qaida.
In fact, it was Khashoggi’s unique background — as a onetime friend of Osama bin Laden who was later hired as the media adviser to a powerful Saudi prince and former chief of Saudi intelligence — that had prompted Hunt to reach out to him in the first place, about two weeks prior to their meeting.
“If you look back on the history of his career, he had a tremendous amount of connections and access to information,” Hunt said. “So he really was in a position to potentially be very helpful to us.”
When she first talked to Khashoggi, he was — according to Hunt — “very interested” in getting together, and they began discussing setting up a meeting. And then, early on the morning of Oct. 26, Khashoggi called her and wanted to move the meeting up, telling her he had urgent business to attend to and wanted to see her right away. She rushed over to the coffee shop in the Tysons Corner shopping mall that Khashoggi suggested. When she got there, she says, he was “very upset” that his son had been barred from leaving Saudi Arabia by authorities there. It had happened, as Khashoggi explained it, only because he was “being targeted by the regime.”
At that point, Hunt said, “he started to instruct me a lot about the Ministry of Islamic Affairs, and that they were charged with the responsibility of spreading Islam throughout the world. He explained that really, it was a fundamentalist version of Islam that was being propagated, and that the current government was trying to reform that position.
“He said it more in a question: ‘Is my country responsible for tolerating and even supporting radicalism? Yes. And they must take responsibility for that.’"
Even that relatively small concession, Hunt thought, was “golden.” Here was a prominent Saudi apparently prepared to say his country should be held accountable for the spread of radical Islam — and the ensuing acts of terrorism it caused. But then Khashoggi said something even more surprising. He asked if the New York-based law firm Hunt was working for, Kreindler & Kreindler, was prepared to offer him a job as a consultant to the 9/11 families' legal team. If so, he emphasized, they would have to be secretive about it. No more get-togethers in the Washington, D.C., area, where the Saudi presence was extensive.
“He was very interested in talking about it,” Hunt said. “He wanted to have the next meeting in New York, not the D.C. area.
“I was excited,” she added. “I was thrilled that he was so positive about it. I think he could have added a tremendous amount.” As to Khashoggi’s motivation in making such an offer, Hunt said: “Here he was, he found himself in exile. And I think working with the law firm would have given him a chip in the game, if you will.”
But Hunt never heard from Khashoggi again — and the full significance of their meeting didn’t hit home until more than a year later, in the weeks after his murder inside the Saudi Consulate in Istanbul on Oct. 2, 2018. The Washington Post had reported that the then Saudi ambassador to the United States, Khalid bin Salman (or KBS, the brother of Mohammed bin Salman), might have played a role in luring Khashoggi to Istanbul. The ambassador responded in a tweet that he'd had no contact with Khashoggi since they communicated via text on Oct. 26, 2017 — the same day as the meeting with Hunt.
What Khashoggi and KBS (now the country’s deputy defense minister, who met with Biden administration officials this week during a trip to Washington) texted or communicated about that day remains unknown. But Jim Kreindler, the lead lawyer for the 9/11 families, said he is convinced Khashoggi sought to use the meeting with Hunt as leverage with the Saudi ambassador to help his son.
“There isn't a doubt in my mind that after speaking to Catherine, he called KBS and said, ‘Hey, the plaintiffs' lawyers had an FBI agent talking to me. I didn't give them anything yet, but, you know, you mess with my son and I'm going to spill the beans.’"
To be sure, Kreindler has no hard evidence to support his speculation. But the curious timing of Khashoggi’s meeting with Hunt — on the same day he was communicating with the Saudi ambassador to the United States — adds one more mystery to the many surrounding the last year of the journalist’s life before the Saudi team of assassins injected him with a lethal dose of drugs, suffocated him and then carved up his body inside the consulate in Istanbul.
The United States has more convincing ways of deterring a catastrophic cyberattack than to threaten a nuclear strike, Scott D. Sagan and Allen S. Weiner argue. (photo: Los Alamos National Laboratory/AP)
ver the July 4 weekend, the Russian-based cybercriminal organization REvil claimed credit for hacking into as many as 1,500 companies in what has been called the largest ransomware attack to date. In May, another cybercriminal group, DarkSide, also apparently located mainly in Russia, shut down most of the operations of Colonial Pipeline, which supplies nearly half the diesel, gasoline and other fuels used on the East Coast — setting off a round of panic buying that ended only when the company handed over a ransom. These incidents were bad enough. But imagine a much worse cyberattack, one that not only disabled pipelines but turned off the power at hundreds of U.S. hospitals, wreaked havoc on air-traffic-control systems and shut down the electrical grid in major cities in the dead of winter. The grisly cost might be counted not just in lost dollars but in the deaths of many thousands of people.
Under current U.S. nuclear doctrine, developed during the Trump administration, the president would be given the military option to launch nuclear weapons at Russia, China or North Korea if that country was determined to be behind such an attack.
That’s because in 2018, the Trump administration expanded the role of nuclear weapons by declaring for the first time that the United States would consider nuclear retaliation in the case of “significant non-nuclear strategic attacks,” including “attacks on the U.S., allied, or partner civilian population or infrastructure.” The same principle could also be used to justify a nuclear response to a devastating biological weapons strike.
But our analysis suggests that using nuclear weapons in response to biological or cyberattacks would be illegal under international law in virtually all circumstances. Threatening an illegal nuclear response weakens deterrence because the threat lacks inherent credibility. Perversely, this policy could also wind up committing a president to a nuclear attack if deterrence fails. While the American public would indeed be likely to want vengeance after a destructive enemy assault, the law of armed conflict requires that some military options be taken off the table. Nuclear retaliation for “significant non-nuclear strategic attacks” is one of them.
The Biden administration is now conducting its own review of the U.S. nuclear posture. The 2018 Trump change is an urgent candidate for reevaluation, but people have generally ignored it up to now. As officials work on this process, they have the chance to take full account of what could be called the “nuclear law revolution” — a growing recognition that international-law restrictions on warfare, and especially those that protect civilians, apply even to nuclear war.
Most Americans are aware of the strategic revolution that nuclear weapons themselves kicked off: The massive destruction they created made deterrence the highest national security priority. Soon after the bombing of Hiroshima in 1945, for example, Bernard Brodie, a preeminent early Cold War strategist, wrote: “Thus far the chief purpose of our military establishment has been to win wars. From now on its chief purpose must be to avert them.”
Inherent in the idea of deterrence for decades was the notion that the United States would rain “assured destruction” on the cities of any nation that attacked us or our allies with nuclear weapons. During the height of the Cold War, for instance, U.S. nuclear war plans were designed to destroy “at least 70% of the urban industrial bases of the USSR and Communist China” and expected to kill “30% of the people,” according to declassified top-secret documents from the Nixon administration written in 1969 and 1971.
But such plans were manifestly not reconcilable with the central principles of the international law of armed conflict. This helps explain why the U.S. government asserted at the time of its negotiation that the 1977 Protocol I to the 1949 Geneva Conventions did not apply to nuclear weapons. That later treaty codified the obligation of all state parties to follow in war the principles of distinction (drawing a line between military targets and civilians), proportionality (making sure the unintended or “collateral” civilian harm resulting from a legitimate attack does not exceed the military advantage of that attack) and precaution (doing everything feasible to avoid or at least minimize collateral civilian deaths). U.S. nuclear war plans in the 1970s didn’t follow any of these rules.
In 2013, however, the Obama administration’s official nuclear weapons employment guidance announced that henceforth, “all plans must also be consistent with the fundamental principles of the Law of Armed Conflict.” From then on, even nuclear war plans would apply the principles of distinction, proportionality and precaution.
The Obama guidance document was categorical: “The United States will not intentionally target civilian populations or civilian objects.” According to Gen. C. Robert Kehler, the head of U.S. Strategic Command from 2011 to 2013, implementing this guidance led the command to develop nuclear delivery “tactics and techniques to minimize collateral effects,” and to “expand non-nuclear strike alternatives and add significant flexibility to our contingency plans.” The Trump administration’s 2018 Nuclear Posture Review reaffirmed the U.S. commitment to “adhere to the law of armed conflict” in any “initiation and conduct of nuclear operations” — but its interpretation of the law (allowing nuclear weapons to be used in response to a massively destructive biological or cyberattack) was flawed.
The unambiguous embrace of the application of international law to nuclear weapons means that if a future president ordered a Hiroshima-like attack, striking a city to kill as many enemy civilians as possible, it would be an illegal order that senior generals would be required to disobey. This would be true even if the order came in response to a nuclear attack on an American city; nations are not permitted to flout the rules of war protecting civilians simply because their enemies do. (A theory called “belligerent reprisal” holds that states may strike back at civilian populations in a proportionate way if the intent is to get the enemy to stop its own illegal warfare. We and other scholars have argued that this practice is not compatible with current understandings of international law.)
Yet it is not only pundits and the public that have failed to notice this legal revolution. Some writings by nuclear strategists, even those seeking to limit the dangers of nuclear war, have ignored the shift. In 2018, for instance, the late Princeton research scholar Bruce Blair proposed a policy of what he and others have called “minimal deterrence”: His version involved cutting the U.S. arsenal to fewer than 700 warheads, from some 2,000 today, and aiming them to guarantee “the annihilation of scores of [Russian] cities housing banking and oil infrastructure as well as key manufacturing and leadership facilities.” But a policy targeting civilian infrastructure would clearly violate international-law rules that Washington recognizes apply to nuclear targeting.
This is not to say that the laws of war preclude all use of nuclear weapons (a conclusion that some legal scholars have embraced). The principle of proportionality permits some U.S. nuclear attacks against military targets — for example, when the harm such a strike would prevent to U.S. and allied populations would exceed the foreign collateral damage it caused. (Any associated civilian deaths would have to be truly incidental and unavoidable. Deliberately causing purported “collateral” civilian damage to force an enemy to stand down would be illegal.) Those planning a nuclear counterattack would also be obliged to use the lowest-yield weapons necessary to destroy or neutralize the legitimate military targets they place in their sights.
If the laws of war strictly constrain nuclear retaliation for a nuclear attack on the United States, they all but certainly bar such a strike in response to a cyber- or biological attack — even one causing many civilian casualties. In almost any imaginable scenario, the use of nuclear weapons would violate the principle of precaution, the requirement to minimize harm to civilians if feasible. That’s because the formidable U.S. military has the capacity to halt, or to induce the adversary to halt, ongoing cyberattacks through conventional or cyber-responses that would cause less harm to foreign civilians than would a retaliatory nuclear strike.
There are a few possible, but largely hypothetical, exceptions to this rule. One would be if the individuals or organization responsible for the cyber- or biological attack were in an underground bunker that couldn’t be destroyed any other way. Another hypothetical option, a nuclear demonstration strike against an isolated military target, might be legal, but it would be strategically stupid, as it would actually demonstrate lack of resolve. A stronger response would directly target — through conventional means — the perpetrators and their ability to launch further attacks on us or our allies.
Using nuclear threats to deter cyberattacks is also inherently less credible than threatening retaliation with conventional weapons or in kind (that is, with cyber-retaliation). The states that we worry most will launch cyberattacks — Russia, China and North Korea — also have nuclear weapons, and their leaders might reasonably calculate that any U.S. president would be reluctant to use nuclear weapons against a nation that can retaliate in kind. An adversary might also believe that the U.S. military would refuse to use nuclear weapons in response to non-nuclear attacks precisely because of questions around legality. Such suspicions undermine the deterrent force of nuclear weapons; in contrast, if the United States were to commit to only conventional or cyber-retaliation to “significant non-nuclear strategic attacks,” adversaries would have fewer doubts that we would follow through.
Not only might a U.S. nuclear threat against a cyber- or biological attack be perceived as a bluff, it could be doubly dangerous if it subjected the president to what has been called the “commitment trap.” If Washington threatens a nuclear response to deter a cyberattack, but adversaries go ahead anyway because the threat is deemed not credible, then there would be increased pressure on the president to order a nuclear strike to rebut domestic political claims of weakness and shore up international perceptions about the credibility of future threats. But succumbing to such political pressure or the urge for vengeance would create an unacceptable risk of further nuclear escalation.
In their joint memoir, “A World Transformed,” Brent Scowcroft explained why he and President George H.W. Bush did not issue an explicit threat to retaliate with nuclear weapons if Saddam Hussein ordered the use of chemical weapons against U.S. troops in the 1991 Persian Gulf War: “It is bad practice,” he wrote, “to threaten something you have no intention of carrying out.” The U.S. government should follow that principle today. In an era of escalating cyber-dangers, it would be prudent to pay closer attention to both the laws of armed conflict and the logic of credible deterrence. The threat of nuclear retaliation in response to a cyber- or biological attack should be ruled out.
Anthony Fauci. (photo: Jim Lo Scalzo/EPA)
ALSO SEE: It's Not Just About You. Experts Say Getting a
COVID-19 Vaccine Protects Everyone Around You
Biden chief medical adviser says guidance may change in future as Pfizer suggests booster ‘may be beneficial’ after six months
r Anthony Fauci has said there is no immediate need for a Covid-19 booster for fully vaccinated Americans but remained open to the possibility in the future, as reports suggest that one major pharmaceutical company plans to lobby government officials to approve booster shots next week.
Pfizer announced last week that it had observed that its vaccine, while effective against the virus, had “a decline in efficacy against symptomatic disease over time”. The company suggested that as new variants continue to emerge a booster shot after six months “may be beneficial”.
The announcement prompted a rare joint statement from the US Food and Drug Administration [FDA] and the Centers for Disease Control and Prevention (CDC), stating that fully vaccinated Americans did not requite a booster.
Appearing on CNN on Sunday Fauci, Joe Biden’s chief medical adviser, reiterated the CDC and FDA’s advice but acknowledged the guidance may change in the future.
“This isn’t something we say ‘no we don’t need a boost right now the story has ended forever’. There’s a lot of work going on to examine this in real time to see if we might need a boost,” Fauci said. “But right now, given the data that the CDC and the FDA has, they don’t feel that we have to tell people right now you need to be boosted.”
Reports over the weekend indicated that Pfizer will brief US health officials next week over the possible need for a third booster shot. The reporting, published in the Washington Post, came as Israel announced it would offer a third booster shot to adults with weak immune systems but was still weighing whether to roll out boosters to the general population.
As Covid-19 vaccination rates continue to plateau around the United States and cases rise in certain areas Fauci urged millions of unvaccinated Americans to “put politics aside” and receive the inoculation.
The country’s leading infectious disease expert appeared on three Sunday morning politics shows, and cautioned that those who remained unvaccinated were particularly vulnerable to the fast-spreading Delta variant. The variant was present in over half of new Covid cases over the last two weeks, according to the CDC with 24 states reporting an uptick of at least 10% in total cases. Only 56% of the eligible population, aged 12 and over, are now fully vaccinated in the US.
Appearing on ABC News Fauci said of the variant: “It’s very clear that this is a nasty variant. It has a much greater capacity of transmitting from person to person.”
He added: “The bad news is that we have a very nasty variant, the good news is that we have a vaccine that works against it.”
The comments came as a recent polling and data analysis continues to indicate a substantial and widening political divide in vaccination rates. A report by healthcare non-profit Kaiser Family Foundation published this week found the average vaccination rate in counties that voted for Donald Trump in the 2020 presidential election was 35% compared with 46.7% in Biden counties. The analysis also showed that the average gap between red and blue county vaccination rates had increased significantly in less than a month.
Meanwhile, a poll published by ABC News and the Washington Post earlier this month found that 93% of Democrats said they were vaccinated or were planning to get the vaccine, compared with only 49% of Republicans.
“What we’re trying to do is to just put politics aside. This is no time for politics. This is a public health issue and viruses, and public health don’t know the difference between a Democrat and Republican or an Independent,’’ Fauci told ABC.
The public health expert continues to be targeted as a figure of political point scoring by conservative leaders, who have pushed a number of baseless conspiracy theories tied to the release of his emails under freedom of information laws last month.
At the annual Conservative Political Action Conference (CPAC) in Dallas, Fauci was targeted by former president Trump’s eldest son, Donald Trump Jr, during a speech on Friday. The conference has also seen overt support for vaccine hesitancy from some speakers.
During his appearance on CNN, Fauci was played a clip from one event at the conference during which a crowd of attendees cheered as the conservative author Alex Berenson celebrated the fact the Biden administration had reached its vaccination rate targets earlier this month.
Asked to respond, Fauci said: “It’s horrifying. They are cheering about someone saying that it’s a good thing for people not to try and save their lives. I mean if you just unpack that for a second … it’s almost frightening.”
Albert Nixon, 89, displays a photo of his sister Jessie Johnson, now 88, that was salvaged after a tornado destroyed their home in Greensboro, Ala., in March. (photo: Michael S. Williamson/WP)
Why FEMA is denying disaster aid to Black families that have lived for generations in the Deep South.
ot enough people were signing up for help after a series of tornadoes ripped through rural Alabama, so the government sent Chris Baker to figure out why. He had driven past the spot where a tornado threw a 13-year-old girl high into a tree, past where injured cows had to be shot one by one, and past where a family was crushed to death in their bathtub. And now, as another day began in this patchwork of destruction, he grabbed a stack of fliers with a picture of an outstretched hand and headed to his car to let people know Washington had assistance to offer.
“So we’ll do a convoy?” Baker asked the local official who had offered to show him around, looking down to check that the badge identifying him as a specialist with the Federal Emergency Management Agency was in place.
He needn’t have bothered. “There goes FEMA,” called a woman on her porch as they drove by. Two burly White men in khaki cargo pants on a hot day — who else would it be? A majority-Black county named for an officer in the Confederate Army, Hale County is a place of little interest to outsiders; an area of dense forests, catfish farms and 15,000 residents, most of whom can trace their ancestry back to enslaved people or plantation owners.
President Biden has instructed FEMA to prioritize getting help to these kinds of “too often overlooked” communities — the places that climate change is already overwhelming with more storms, floods and heat waves. And Baker was eager to do just that. “That’s why we’re knocking on what doors we can,” he said.
Baker was new to the agency, and this was his second deployment to a disaster zone. His supervisors had asked him to spread the word that people who lost homes to the March 25 tornadoes still had time to apply for grants of up to $72,000. But as he canvassed the area, a different message was spreading much faster: That people here were in fact not eligible for anything, because of how they had inherited their land. Because of the way Black people have always inherited land in Hale County.
More than a third of Black-owned land in the South is passed down informally, rather than through deeds and wills, according to land use experts. It’s a custom that dates to the Jim Crow era, when Black people were excluded from the Southern legal system. When land is handed down like this, it becomes heirs’ property, a form of ownership in which families hold property collectively, without clear title.
People believed this protected their land, but the Department of Agriculture has found that heirs’ property is “the leading cause of Black involuntary land loss.” Without formal deeds, families are cut off from federal loans and grants, including from FEMA, which requires that disaster survivors prove they own their property before they can get help rebuilding.
Nationally, FEMA denies requests for help from about 2 percent of applicants for disaster aid because of title issues. In majority-Black counties, the rate is twice as high, according to a Washington Post analysis, in large part because Black people are twice as likely to pass down property informally. But in parts of the Deep South, FEMA has rejected up to a quarter of applicants because they can’t document ownership, according to the Post analysis. In Hale County, FEMA has denied 35 percent of disaster aid applicants for this reason since March.
Not that Baker knew much about that; not yet. His bosses had sent him out from his office in Atlanta with a list of metrics. Eight counties eligible for help. Four weeks until the deadline to apply. Eight hundred applications received so far, of which 100 had been approved. There was nothing on the briefing sheet about heirs’ property. He had visited several areas now, meeting with officials and volunteers. But when he arrived in Hale County, local emergency management director Russell Weeden had suggested a tour to see “the real damage.”
They pulled up a narrow dirt road, then got out and climbed a gravel path to the first stop of the day. The tornado had tossed debris across several acres of scrubby grass. The air was heavy and silent, with few trees left for birds to perch in. Baker passed an embroidered pillow and a sequined high-heel shoe, and then the full wreckage of a three-bedroom home that had stood since a generation after the Civil War came into view.
“Well, this house was certainly blown away,” Weeden said.
“Isn’t that something?” Baker said. He reached for his notebook and went to get a closer look.
The question of what happens to heirs’ property after a disaster is not unique to rural Alabama. FEMA has been grappling with the issue since at least 2005, when 20,000 heirs’ property owners were denied federal help after Hurricane Katrina, according to a USDA report. It came up again in 2017, when Hurricane Maria hit Puerto Rico. That time, FEMA denied more than 80,000 applications because of title problems.
There is no legal basis for requiring disaster survivors to provide incontrovertible proof of homeownership. FEMA created that requirement on its own, to combat scammers who make off with as much as 1 percent of aid each year. In 2018, under pressure to resolve the crisis in Puerto Rico, the agency created a process for people to self-certify homeownership.
But the fix applied only to islands and tribal areas, and it was not extended to the Deep South, where in internal correspondence, FEMA has recognized heirs’ property as “a perennial issue.” A FEMA spokesperson said the agency still requires most disaster survivors to prove ownership because “land ownership is recorded as a standard practice” in all of the continental United States and “self-certification of ownership increases the agency’s vulnerability” to fraud and improper payments.
“So this was two elderly people, and they were at home,” Weeden explained as Baker peered into the house on the hill. There were just a few walls left, tipping at odd angles. Clocks lay on the ground, all stopped at 4:35, the time the tornado touched down. Weeden said the house belonged to a brother and sister who had lived there nearly 90 years and were found by rescuers sitting dazed on a log. “I don’t know if they’re going to rebuild or what.”
Baker thought they sounded like ideal candidates for help. The information they would need was laid out in his flier, but he was starting to understand that there might not be anyone around for him to hand a flier to. “Sometimes you can get messages out on the highway overpasses,” he said — but Hale County didn’t have interstate highways. “It’s hard in a rural spot. You could put it on a cow, maybe,” he said, then fell silent.
The ground they were standing on, like so much Southern land, had been purchased by a Black family during Reconstruction, a time when a generation of Black workers saved up and bought every plot they could, no matter how barren and unpromising. Within a few decades, a new class of landowners emerged: By 1910, Black people made up 10 percent of the U.S. population but 14 percent of its farmers. In Hale County, more than a quarter of farmland was Black-owned.
It was a short-lived era of prosperity, however, as Black landowners began buckling under what the USDA describes as a “well-documented” system of discrimination, including exclusion from loans and swindles by officials. Bands of poor White farmers threatened to murder Black landowners if they didn’t flee. Historians believe that many lynchings from this time, including hundreds in Alabama, were carried out to take Black property. By the end of the 20th century, the share of Black-owned farmland in Hale County had fallen to just 3 percent, including the plot on the hill, where the only sounds were the wind and a smoke alarm chirping somewhere.
“Sorry to be taking you out to an area where there’s nobody,” Weeden said.
“No, it’s quite all right,” Baker said. They got in their cars and headed to the next site the local official wanted to show Baker, unaware that a neighbor had been watching the whole time. Her name was Bernice Ward, and later that day, she went to see the owners of the house.
“I called y’all about five times and y’all didn’t answer,” Bernice said as she pulled up and saw two frail people sitting outside the suburban home where they were temporarily staying.
“We ain’t been nowhere but here,” said Albert Nixon, who was about to turn 90. “We probably didn’t hear the phone.”
“I was gonna come here and get you and take you to the house to talk to FEMA,” Bernice said.
“They were at my house?” Albert asked, surprised an agency that had twice rejected his applications for assistance would be seeking him out. “Ineligible — Ownership Not Verified,” the rejection letters had said, leaving Albert confused as to what the problem was. “I been living there all my days,” he said.
“I’m tired of being here,” his sister Jessie Johnson, who was 88, joined in.
“We’re a long way from home,” Albert said of the place where he and his sister had spent their childhoods picking cotton and had never left, even after their siblings had moved away or died. For Albert especially, his whole life was tied up in those 40 acres of fertile land and the shotgun shack to which he had added three rooms over the years. He had kept up the peach and pecan trees his father planted, and gotten up early each morning to feed the cows and chickens right up until the day the tornado hit.
It was part of a tornado outbreak that killed seven people, with 150 mph winds. The siblings had sought shelter in Albert’s bedroom, the innermost room of the house and the place where they had been born. As they clung to a four-post bed, the winds lifted off the roof and threw it into the woods, exposing a sky that looked to them like nighttime. The windows shattered, and something gave Albert a black eye. Within seconds, the storm ripped apart every room but the one in which they were sheltering. When it passed, they crawled out through a hole where the chimney had stood.
They had grieved to see their orchards and animals suddenly gone. And they were disoriented by what came next, when they moved to a house in another town that had stood empty since a family tragedy played out there. The siblings spent most of their time in the carport, where Bernice was now trying to help Albert understand the status of his application. She didn’t know the details, so she called their grandniece, who had contacted FEMA’s national helpline on the siblings’ behalf the day before.
“We have to prove that you own the house,” the grandniece explained.
“It ain’t in my name; it’s in my granddaddy’s name,” Albert said. “My daddy and them never did change it over.” Just before he died, Albert’s grandfather had warned the family never to let a White man take their land. Albert believed that by keeping the plot as heir’s property, he had minded his grandfather’s words. “A lot of folks been trying to buy the land. Trying to take it. But they won’t get it as long as I’m living,” he said.
The grandniece suggested that Albert might at least be able to show he paid the property taxes.
“I paid for it, but I told them, ‘Let it stay in my brother’s name,’” Albert said. “And my brother’s dead.”
“Oh well see, I don’t know,” the grandniece said.
“If I wasn’t old, I would’ve cleaned it up myself,” Albert said.
After a while, Bernice got up to leave. “I’ll come see you again in a few days,” she told the siblings.
“We’ll be here,” Albert said.
All through the morning and into the afternoon, Baker kept following Weeden down red dirt roads that looked much like they had 50 or 100 years ago, except that with every turn, there was more wreckage.
“At least they had it bolted down,” Baker said as they passed a trailer so obliterated only the tie-down anchors were left. “Didn’t hold up too good, though.” He looked out at a home that had been stripped into planks, where black-eyed Susans were growing from a smashed pink dollhouse. “Tornados always seem to be attracted to the trailers,” he said. They saw a spot where a homeowner had piled the remains of his walls next to a sign saying, “Free bricks.” Not all the homes had been reduced to rubble. Weeden also took him by a five-bedroom house that was still standing but had 10 red, black and blue tarps where the roof had been. “That’s hard,” Baker said.
Stop by stop, Baker’s understanding of the need in Hale County was growing deeper. Five hours into the day, however, not a word had been spoken about titles, wills or heirs’ property. Weeden hadn’t mentioned it, if he was aware of it at all. Baker didn’t know to ask. And the people who might have told him were not around.
And so the men continued on with their mission, even as the owner of the house with the tarps was continuing with his, which was to prove that the home he had built for his wife and sons a quarter-century earlier indeed belonged to him.
What the owner was trying to do specifically was get signatures. That’s what a lawyer told Lonny Wilson, 60, to try to do after he received a denial from FEMA. He needed to get all the heirs to the family land to sign a notarized form attesting that he owned his house. There were 15 of them in all, scattered from Las Vegas to Boston.
With no other option to repair the damage from water seeping through his ceilings, Lonny set out to visit his sister, who lived nearby. Hers should have been the easiest of the signatures to get, but he had given her a form the week before and had heard nothing since.
He walked through a field of broken trees that smelled like sweet pine, worrying about what would happen if someone decided not to sign. So many things could go wrong. There were scams in which developers buy out a single heir and then force an auction of the whole plot, which was how Lonny’s wife lost her land. There were cases in which distant relatives who didn’t even know they had a stake in a property tried to sell it after receiving a call like the one Lonny would be making to his relatives. And there was just the simple fact of what can happen in families. “You never know what a person will hold against you. Sometimes blood is worse than water,” Lonny said.
His sister Evelyn Pickens came to the porch to meet him. “Hi, come on in,” she said. “It’s hot and the mosquitoes are out.”
“Thanks,” Lonny said and walked past her into the living room, where he saw the form sitting on her coffee table, still blank.
“It's raining every other day in the house. If I keep waiting, I'm going to have to demo it down,” he said. “They’re telling me I need documentation.”
“It’s no problem to sign it. I just wasn’t in a rush,” Evelyn said, and soon was on her way to the county seat of Greensboro, parking next to a statue of a soldier with a Confederate flag, the tallest one on Main Street.
The town notary watched Evelyn sign Lonny’s paper and stamped it with a seal. “I bet you’ve seen a few of these,” Evelyn said. “How much do I owe you?”
“Nothing. I’m not charging to do those,” the notary said. She’d been stamping affidavits all month as families struggled to come up with something to show FEMA before the approaching deadline. “This is about all we can do to help right now.”
Evelyn thanked her. “The truth is we don’t even know if FEMA will accept this,” she said. She slipped the form into her purse and drove back to the house with the mismatched tarps, where Lonny was waiting outside.
One down, he thought when he saw the letter. Fourteen more to go.
Baker and Weeden weren’t the only ones touring the back roads that afternoon. So was a police officer named Eric Wiggins, who made his own survey of the disaster zone five days a week.
Wiggins, 47, was one of Greensboro’s six patrol officers. He had moved back after retiring from the Navy and was living on heirs’ property handed down by his great-grandfather. He’d been renovating a trailer that once belonged to his grandmother, adding hardwood floors and new appliances. The family gathered there for holidays, and each summer, his cousins came back from the East Coast so their kids could swim in the creek and relearn how to run barefoot on rough red clay. Eric was planning to put in granite countertops next. But the tornado demolished the trailer, and after FEMA denied his application, Eric had decided not to appeal because he knew he couldn’t produce a deed.
To him, the destroyed houses he passed each day were evidence of government neglect. “Two months, no progress. Is that going well?” Eric asked on one of his rounds. “But this is a segregated town, and the community that got hit was predominantly Black. So there’s no urgency.”
Eric liked to slowly circle the area in his cruiser, stretching each lap out to an hour and a half. He tapped his horn and waved when he spotted children playing or older people on porches. He felt lucky to be able to stay with his mother while he figured out what to do next. Otherwise, he might have ended up like people he knew of who were in far worse shape, such as Joe Lee Webb, sleeping in his truck next to his destroyed family home, or Clarissa Skipper, living with two kids in an old trailer with a fallen tree in the middle of it.
The roads were quiet except for an occasional wild turkey stepping out of the forest. Before long, Eric saw one of the people he most worried about — a man named Ronald Reaves, who had moved to a hotel with his daughter after a tornado smashed their home into a hillside. Eric stopped his cruiser next to a house where Ronald was rebuilding a porch. “How’ve you been?” he called out.
“I’m hoping it gets better,” Ronald said. “I’m thinking maybe we’ll get one of those storage sheds or a camper. I just need a little place for a bed, a place for a bathroom.”
“It ain’t that hard for me because I’m at my mama’s. But I know what it’s like,” Eric said.
“It been real rough, man,” Ronald said. “We can’t get no help. FEMA’s taking too long, you know what I’m saying?”
“I know it. They denied me, too,” Eric said.
“Oh, for real?” Ronald said.
“They denied a lot of people,” Eric said. “They want you to show ownership, and a lot of people are on heirs’ property.”
“This is all heir property, though,” Ronald said. “I don’t understand how they’re doing us like that, to all these folks.”
“Don’t nobody understand,” Eric said, and wished Ronald luck.
“I’m about ready to give it up,” Ronald said, shaking his head.
Turning back toward town, Eric pointed out Briana Bouyer’s place, which was roofless and teetering. She, too, had been denied with a letter that began, “Ineligible — Ownership Not Verified.” Instead of trying to sort out the title, she and her husband got a loan to buy a small house elsewhere.
“I saw that on Facebook, and good for them, but you lose something when you move away from family land,” Eric said.
He looped around and passed a museum marking the place where the Rev. Martin Luther King Jr. once hid from the Ku Klux Klan. On the other side of the street now named for the civil rights leader, the homes were mostly abandoned, the paint peeling, roofs sagging, windows broken. “See what I mean?” Eric said. “Things change if nobody stays.”
Finally, he stopped at a clearing that looked like it had been swept clean except for a red wooden porch. Only the trees, which were full of pink building insulation and twisted metal, gave any indication of the home that had stood there. These were the remains of Eric’s trailer. “It took five minutes and everything was gone,” he said. He hoped eventually to get a bank loan to rebuild. “If I was to leave, this land would grow up and look like a forest,” he said. “There would be no life in it.”
“So this is pretty much how it looked the day of,” Weeden said when they pulled up to the last stop of the day. There was no house, only a red wooden porch. There was pink insulation and metal in the trees. A cop had lived there, Weeden said. “When we got here, he was at home, but his trailer was no longer at home.”
“At least the porch survived,” Baker said quietly.
In all, he had visited a dozen properties, talked to no owners, and posted one flier. He asked Weeden to keep spreading the word. “It’s horrible when something like this happens,” Baker said, “but we get to come in and help.”
“That’s what I tell them: At least apply. All they can do is say no,” Weeden said.
And that was how Baker’s day in Hale County came to an end.
Two weeks later, he was back at his desk in Atlanta. His team was preparing for what was forecast to be an especially punishing hurricane season, and Baker had a stack of reports to look through. But he was still thinking about the need he had seen in Alabama, and about a conversation he’d had with a state official just before he left. The official explained that many Black families, including his own, shared inherited plots of land and were cut off from federal help as a result.
“That can’t be right,” Baker had said. “We must have something in place for that.” But the official insisted, so on his drive back, Baker called his FEMA supervisor, who told him that this was indeed a problem throughout the South. No clear deeds. No clear wills. No clear property tax records. And that was how Baker finally learned about heirs’ property.
Now he found himself turning to FEMA’s 300-page Individual Assistance handbook to figure out what could be done for the people whose homes he had visited, who already seemed to have vanished from their land.
Flipping through the arcane rules, Baker saw a list of documents the agency will accept as proof of ownership. The first was an original deed. “Well we don’t have that,” he said. The next was an insurance bill. “That’s not going to work,” he said.
He remembered how random and extreme the destruction had been. The sequined high heel. The dollhouse sprouting yellow flowers. He didn’t like to think that he had been advertising help that people had no chance of getting.
Next on the list was a property tax receipt. “But that’s not going to be in their name,” he said. The last option was a formal will. “But they don’t have that, either,” he said.
Then Baker got to a caveat. “FEMA may accept a written statement as a last resort,” he read, relieved to have found a workaround. This was the fix allowing people in Puerto Rico to self-certify ownership. “Oh, but that’s just for the islands,” he said, and sighed.
Baker was proud to work for FEMA. He believed in its mission. But he didn’t understand why the rules would be set up like this. The deadline to apply for help was just days away now. The owners of the houses he had seen would have to appeal to local charities or make whatever arrangements they could on their own. “One case like this is too many, honestly,” he said. “At the end of the day, it’s the family that we care about, not how the land came down.”
He thought of the elderly siblings who had ridden out the tornado in their home. The way the walls must have shuddered and then been wrenched loose. The daze they must have been in when they crawled out. Baker looked over the list one more time. “It’s too bad. There’s nothing in here,” he said.
'Some Democrats are starting to suspect that the story is simpler: They've been chumps. They have clung to norms Republicans long ago abandoned.' (image: Valerie Chiang/Andrew Harnik/Pete Marovich/Bloomberg/Chip Somodevilla/Getty Images)
Justice Stephen Breyer hasn’t retired yet. But filling Supreme Court seats is just one battle in a war over the judiciary—one that progressives worry they’re losing.
very political coalition likes to talk about how its opponents are more organized, more ruthless, and better funded. As progressives plot their response to Donald Trump’s mostly successful project to remake the federal courts, they are reviewing the times they’ve been outworked, outfought, and outsmarted on judicial nominations. One not-so-familiar name jumps out: Before Merrick Garland’s stint in purgatory, before Brett Kavanaugh’s furious denial of assault allegations, before Amy Coney Barrett’s eleventh-hour confirmation, there was Goodwin Liu.
In 2010, Democrats comfortably controlled both chambers of Congress and the White House. Liu—the son of Taiwanese immigrants, a celebrated academic, the same kind of hyper-driven polymath as a certain former senator from Illinois—was up for a seat on the Ninth Circuit Court of Appeals. At the time, Liu was also the chair of the American Constitution Society, which had been founded a decade earlier as the progressive answer to the Federalist Society, the group most responsible for the conservative movement’s intellectual takeover of the judiciary. At least on paper, Liu was a top leader of what aspired to be the foremost progressive legal network in the country. He had the enthusiastic backing of the Democratic establishment—“He’s as sharp as they come,” Senator Dianne Feinstein told the Los Angeles Times—and court watchers considered him papabile as a Supreme Court justice. If progressives had had a well-oiled judicial-appointments machine like the one associated with the Federalist Society, Liu’s nomination would have been a cinch.
But well-oiled, the progressive machine was not. Republicans set the narrative on Liu: Instead of a bright legal thinker, he was “far outside the mainstream,” then-Senator Jeff Sessions of Alabama said. A few years earlier, Liu had harshly criticized soon-to-be Supreme Court Justice Samuel Alito’s permissiveness toward policing, comments that were “vicious and emotionally and racially charged, very intemperate,” then-Senator Jon Kyl of Arizona said. Liu’s nomination languished, held hostage—along with nearly two dozen others—by Republican procedural maneuvers. In the end, it was the Obama administration that sold out its star: With the White House’s blessing, Senate Democrats struck a deal to get most of the hostage nominees through, as long as Liu and a few others got dropped.
When Democrats recite the parable of Goodwin Liu, they tell a story about Republican bad faith and foul play, but also one of their own failures. Progressives have largely ceded the judiciary to conservatives. Republicans have long been engaged in total warfare on the courts. They see liberal courts as an existential threat to the conservative project, and they have responded accordingly, building a well-funded machine to get true believers confirmed as judges. For years, Democrats never built an equal and opposite infrastructure for installing progressives on the federal bench.
The possible explanations are many: Democratic voters don’t care as much about courts as Republicans do; donors on the left didn’t invest in the courts the same way as those on the right have. But some Democrats are starting to suspect that the story is simpler: They’ve been chumps. They have clung to norms Republicans long ago abandoned. They have championed moderates in order to appeal to their enemies, only to watch those moderates twist in the wind. And they have turned up their nose at the idea that outside groups should run the judicial-nominations process, even when those groups are effective at what they do. Some progressives argue that they have honorably pursued good governance, trying to work within the federal government while their opponents turned the Federalist Society into an HR firm for Republican administrations. But grievances don’t change the facts: The conservative movement has been winning the battle for the federal courts.
After the past four years, though, some Democrats claim they are finally ready to fight for the third branch of government. They are starting with a number of disadvantages: President Donald Trump favored younger and more ideologically conservative nominees than his predecessors, and those new judges could dominate the courts for decades. His imprint on the courts is most obvious at the top, where judges’ decisions have the most sway over the definition of the law: Trump seated three Supreme Court justices, and in only one term, he appointed nearly as many influential appeals-court judges as President Barack Obama did in two. Republicans had no trouble persuading former Supreme Court Justice Anthony Kennedy, who was nominated by Ronald Reagan, to retire while the GOP held a comfortable margin in the Senate. But Stephen Breyer, whom many Democrats hoped would retire last month, shows no signs of stepping down. The 82-year-old justice embodies an earlier generation of liberal legal minds, who believed that courts could be insulated from partisan battles.
The mood among Democrats has changed, though. Over the past few years, progressive groups have set up powerful dark-money networks and advocated for starkly progressive nominees. Earlier this month, President Joe Biden bragged that his administration was “on track to have confirmed the most judges by July of the first year of a president’s first term in over 50 years.” After the long parade of indignities, the Garlands and the Kavanaughs and the Barretts and the Lius, Democrats say they’re ready to stop being chumps.
Progressives have theoretically been plotting their judicial takeover for a long time. Two decades ago, a law professor named Peter Rubin decided that progressives needed a counterweight to the conservative legal movement, which was growing in influence and power. Since the early 1980s, wealthy right-wing donors had been pouring money into the Federalist Society, which served as a clearinghouse on law-school campuses for every future scholar, judge, and public servant interested in conservative ideas. Over the course of years, the Federalist Society had come to loom over elite legal thought; it set the terms of legal debates, even for groups that disagreed with conservative principles. After the Supreme Court decided the 2000 election in Bush v. Gore, the progressive legal world mobilized against what many liberals saw as a shocking decision—and the conservative movement that made it possible.
The group they formed, the American Constitution Society, attracted some of the biggest figures—and funders—of the liberal legal world. But from the start, ACS was at a disadvantage. Although FedSoc quickly became the default home for conservative law students, progressive law students had plenty of other options for how to spend their time on mostly left-leaning law-school campuses. ACS’s money never caught up to FedSoc’s: Liberal students at ACS events got pizza dinners while conservative students hobnobbed over steaks with the judges who would soon hire them as clerks. And ACS just wasn’t focused on explicitly influencing who was in the mix for big legal jobs, including on the judiciary, in part because many progressives found the idea of an outside group influencing the president’s nomination process distasteful. Judgeship nominations were “definitely not the focus of progressives for some time,” Dawn Smalls, a former ACS board member, told me.
When Obama was elected, a glowing write-up in The New York Times cited Attorney General Eric Holder’s ties to ACS; surely, the reporter implied, this administration would move quickly to counter the conservative judicial takeover that had unfolded under President George W. Bush. Those predictions proved misguided. To be fair, a lot was happening during those early Obama years: The economy was failing, and the president was determined to pass major health-care legislation. Judicial nominations took time to source and vet, and then they took up committee time and floor time in the Senate; in this hectic legislative environment, nominations assumed a back seat. Staffers who served in the White House at the time told me the judicial-nominations process was disorganized, without clear staffing or an urgent mandate. One reason was political: “There was a sense that any time Democrats are talking about judges, they’re losing,” Chris Kang, a special assistant to the president at the time, told me. Judges were a winning talking point for Republicans who wanted to appeal to their pro-life, Christian base. The issue didn’t have as much salience for Democratic voters, who came to the party’s big tent with diverse backgrounds and priorities. Obama’s first chief of staff, Rahm Emanuel, reportedly considered fights over controversial judicial nominees a distraction from the important business of governing.
Besides, Democrats were still operating according to an old mode of politics. Senator Patrick Leahy of Vermont, the Democrat who became the head of the Judiciary Committee, decided to reinstate the so-called blue-slip process—which effectively gives individual senators veto power over judicial nominations from their state—even though Republicans had done away with the tradition when they were in power. For its first circuit-court pick, the Obama administration chose David Hamilton, a centrist judge from Indiana who was a preacher’s son and a widely admired figure in his home state, thinking Republicans wouldn’t be able to find anything objectionable in his record. Instead, Republicans painted Hamilton as a radical, anti-Christian extremist and boycotted his initial hearing. The lesson the administration took away from that experience was not that Republicans were going to oppose anyone Obama nominated; it was that they needed to pick the most moderate, palatable candidates possible if they had any hope of getting nominees through. Meanwhile, Republicans had started filibustering even district-court nominees.
By the end of the Obama years, when Democrats no longer held the Senate, confirmations had basically ground to a halt. “The Republicans just decided that whatever President Obama wanted, they were going to be against,” Neil Eggleston, who served as White House counsel from 2014 to 2017, told me. His office still tried to put nominees forward, but Republicans weren’t the only ones holding up the process. “I found that I just wasn’t getting quality names from the [advocacy] groups—and I’m not going to name them, because they’ll all call me and yell at me,” he said. Perhaps ACS once aspired to be FedSoc for progressives, but the organization had nowhere near the influence in Washington of its conservative counterpart.
By the time of Merrick Garland’s long and fruitless wait for a Supreme Court hearing, Democrats realized just how far the Republican recriminations went. Eggleston spent many hours prepping Garland for a hearing that would never happen; if by some miracle Republicans changed course, he wanted his nominee to be prepared. When the end of Obama’s term arrived and Garland was still in limbo, “I was disheartened, but not terribly surprised,” Eggleston said.
When Trump took office, progressive activists’ judgment against existing liberal legal-advocacy groups was basically universal: They had failed. As the Trump years wore on and Democrats’ panic grew more intense, new groups with urgent-sounding names started to form. Take Back the Court argued for expanding the number of justices on the Supreme Court, because conservatives had “stolen” seats among the nine. Demand Justice targeted senators whom the organization saw as out-of-touch defenders of a bygone era, including Feinstein, the lead Democrat on the Judiciary Committee. After 14 years working in the Senate and the White House, Kang, the former White House staffer and one of Demand Justice’s co-founders, came to believe that Republicans saw courts as a matter of raw power. “As much as you might want the judiciary to not be politicized, you can’t achieve that depoliticization if only one side decides to sit it out, and the other side ramps up,” he said.
How were Democrats going to get their base to care about the courts? Money. Democratic donors started funneling cash to organizations such as the Sixteen Thirty Fund, which are managed by an enormous umbrella group called Arabella Advisors. These groups were exactly the kind that Democrats had spent years decrying on the Republican side: With the Sixteen Thirty Fund functioning as a “fiscal sponsor,” groups such as Demand Justice aren’t legally required to disclose basically any information about their funders, budget, or board of directors. Since 2018, Demand Justice has spent $1.8 million on television ads and another $1 million on Facebook ads, according to Anna Massoglia, a researcher at the watchdog group OpenSecrets, and Democrats have generally outspent Republicans with dark money across all areas of politics. Leonard Leo, who helps lead an influential network of groups that work on conservative issues, including judicial advocacy, was so inspired by Democrats’ use of dark money that he restructured his organizations to mirror his opponents’, he said recently.
The explosion of dark money funding progressives’ court advocacy is uncomfortable for progressive activists to talk about. Molly Coleman, a recent Harvard law graduate who leads a group called the People’s Parity Project that pushes to limit the influence of companies and corporate lawyers in the judicial system, is part of a coalition with Demand Justice and several other groups called Unrig the Courts. Although PPP doesn’t take dark money or corporate money, “that’s just us, and we totally understand why people make other decisions,” she told me, carefully. Progressives still perceive conservatives as having the upper hand in terms of funding and infrastructure in the war over the courts, even though that’s less true now than at any time in recent memory. “Until it’s an even playing field,” it’s not worth it to try and “get the left to be ideologically pure,” Coleman said. Demand Justice says that it has recently become independent, but Kang defended its longtime secrecy: His side will not embrace “unilateral transparency,” he told me.
The biggest change—even bigger than the money and the sense of urgency—is the universe of ideas that progressives are willing to entertain. Late in the Trump administration, while all the drama over Amy Coney Barrett’s nomination was unfolding, a new idea seemed to suddenly take hold, largely thanks to this network of shadowy, communications-focused advocacy groups: The only way for progressives to regain judicial power was to add seats to the Supreme Court. Progressives justified this position by arguing that core democratic functions, especially voting rights, had been so undermined that drastic action would be necessary to save the country. Biden, a Supreme Court institutionalist, even convened a group of leading lawyers to study this and other issues, although the number of legislators who vocally support extensive court-reform measures is small. But the contrast with an earlier era of progressive legal thought was stark. A generation ago, even progressive Democrats would have seen packing the court as the absolute end of judicial legitimacy. “I, frankly, would have been appalled in the past at the idea of adding Supreme Court seats or term limits for Supreme Court justices,” former Senator Russ Feingold of Wisconsin, who took over the top job at ACS in 2020, told me. Feingold sat on the Judiciary Committee for years. He’s a norms guy, through and through. But after all that happened under Trump, “something has to give,” he said. “The right stole the Supreme Court. And there needs to be reparations for that.”
The leaders of the conservative legal movement have little sympathy for the left’s narrative about Republican intransigence. For years, these conservatives argue, the courts were biased toward progressive policy goals, and hundreds of Democratic advocacy groups united to bring down the conservative legal hero Robert Bork’s Supreme Court nomination in the 1980s. “Their sense of helplessness and victimization is a joke,” Leo told me, referring to progressives. “We wouldn’t be where we are today as a conservative movement, fighting the judges wars, if they hadn’t polarized the issue in the 1980s.” At this point, it’s not even possible to tell which side of judicial fights is better funded; the arms race of opaque money has continued unabated. But the story progressives tell about being outmatched on the courts is potentially strategic, conservatives pointed out: That narrative is useful for raising money. Members of the conservative legal movement are not impressed by progressives’ arguments for adding seats to the Supreme Court, either. “A lot of their grievances come down to, ‘Well, we didn’t win that one, and that is super outrageous to us,’” Carrie Severino, the president of the Judicial Crisis Network, a conservative advocacy organization, told me. “That doesn’t justify the level to which they are proposing to take it.”
Each side in the judicial wars is deeply invested in painting the other as a well-funded evil empire. And perhaps progressives are playing up their own helplessness to aid their political aims. Still, it’s striking that so many elite liberal lawyers are willing to say that they botched the past few decades. I asked Feingold about the chump theory of Democrats and the judiciary—whether a reflexive reverence for norms and a naïveté about power led the left to yield too much ground to the right. “It’s completely accurate,” Feingold said. “ACS is declaring, ‘The days of chumpness are over!’”
Two hours after Joe Biden was declared the winner of the presidential election in November, ACS did something that prior iterations of the organization had apparently never tried: It submitted a list of 400 potential federal judges to the Biden transition team. The staff of the incoming administration clearly had judges on their minds. A month before Biden’s inauguration, the head of counsel’s office, Dana Remus, sent a letter to Democratic senators asking for three names for every open district-court vacancy by the time Biden took office. The candidates they were looking for would be diverse not only in terms of race and gender, the letter said, but also by practice area. Instead of just the ex-federal prosecutors and Big Law partners who typically get tapped for judicial seats, they wanted labor lawyers and public defenders and civil-rights advocates. Not long after the inauguration, a group of senior staff had convened a weekly meeting to check on the progress of nominations. “There is a bone-deep feeling about the importance of the judiciary that comes straight from the top,” Paige Herwig, the White House’s day-to-day point person on nominations, told me.
Herwig’s leadership role on judicial nominations is evidence of how much more aligned the progressive legal-advocacy machine has become with this White House; before she joined the administration, Herwig was one of the first hires at Demand Justice. Republicans have noticed: Senator Chuck Grassley of Iowa has taken to questioning Biden’s nominees about whether they’ve had any contact with Chris Kang or Russ Feingold during their nomination process.
Democrats still fancy themselves to be taking the high road—that none of this is about winning. “The president feels strongly that the courts are a place where ordinary Americans go to vindicate their rights … For litigants to feel heard and like they got a fair shake in a court of law is the most important thing,” Herwig said. When I asked Senator Dick Durbin of Illinois, the current chair of the Judiciary Committee, whether Democrats have built a judicial-nominations machine to rival Republicans, he scoffed. “No one was going to get to first base with the Trump White House—even considered for an important judgeship—unless they had signed up with the Federalist Society long ago,” he told me. “We’ve not done that on the Democratic side. I hope we don’t do that. We can judge men and women based on their qualifications, without looking through their résumé for some organizational endorsement.”
The Biden administration is on the clock: For the next 18 months, while Democrats know they have control of the Senate, their mission is to fill as many vacancies as possible, as quickly as possible. In early June, Biden’s first two judicial nominees were officially confirmed by the Senate. These were not the harbingers of a new mold of progressive judges. Both candidates, Julien X. Neals and Regina Rodriguez, came out of corporate law and had been knocked by activist groups, including Demand Justice. These were revenge nominations: Neals and Rodriguez were both in the cohort of Obama picks whose candidacies withered when Republicans refused to move them through. As senators gathered to vote, Democrats hailed a new era of professional diversity on the federal bench—an aspiration, if not entirely reflected in the day’s work. The long haul is still ahead: A handful of vacancies down, roughly six dozen to fill, and only a few hundred judges to nominate and confirm before Biden can claim a judicial revolution of his own.
A demonstrator holds a sign at a transgender rights rally. (photo: National Center for Transgender Equality)
Police suspect the viral L.A. Wi Spa video is fake—but it still got two people stabbed.
n July 3, an anti-transgender protest outside a Los Angeles spa resulted in two stabbings—all over a social media post that police are now treating as a hoax. Back on June 24, a user called cubanangel posted a video on Instagram showing her and at least two other women confronting a staff member at Wi Spa on Wilshire Boulevard in Koreatown about having seen “a man with a penis” in the women’s changing area. “I’m recording this because I’m gonna make a big deal. I’m gonna take this very worldwide,” she explains, kicking off four minutes berating the staff member over the queer-friendly spa’s nondiscrimination policy.
Soon after the video began to go viral in transphobic corners of the internet, members of the trans community began to raise questions about it—chief among them why the video cuts out as the woman marches downstairs to confront this person she’s allegedly seen, conveniently ending before the trans woman she’s so angry about is shown. The woman also repeatedly mentions children being exposed to a penis, while no children appear on the video and the group don’t appear to have any children with them. These early doubts have been bolstered by reporting from the Los Angeles Blade that police suspect a hoax after failing to find witnesses who saw a trans woman at the spa, and that Wi Spa claims none of their trans clients had scheduled appointments that day.
To understand why this incident is so disturbing, it’s worth being clear about what the hoax is even claiming: that a trans woman used a changing room that she was fully allowed to use … on a day when no trans women actually happened to be using it. There was no specific claim of wrongdoing or inappropriate conduct on the part of this alleged person, although the colorful language used in the video certainly sparks the imagination, likely leading those with a transphobic cast of mind to fill the vacuum of facts with horrific acts of lewdness or indecency. Perhaps this is why outrage over the possibility that a trans woman may have changed her clothes in the appropriate facilities grew and grew, culminating in the protest outside Wi Spa, which included a contingent of violent extremists from the far right. The two stabbing victims were attacked by an anti-trans protester: One was a counterprotester; the other apparently a “friendly stab” incident where a fellow protester was hit by mistake.
Anti-trans activism is often thought of as a sideshow or a distraction, but these events show the real dangers of an increasingly extremist anti-trans backlash. In this case, an uncorroborated suggestion that a trans woman was using a women’s space ignited a protest that resulted in violence and led to a woman being hospitalized. That there was likely no trans woman there to begin with only underscores how thin a pretext is needed to prompt these sorts of outbursts from the far right. Trans people and our allies should not ignore the growing anti-trans sentiment in this country.
Sightings of live dugongs are very rare. Tour boat operator Samith Fernando caught this sighting of one of five members of a dugong family in Puttalam Lagoon in 2017. (photo: Samith Fernando)
amith Fernando runs a tour boat service in Puttalam Lagoon, a scenic spot about 130 kilometers (80 miles) north of Colombo, Sri Lanka’s commercial capital. In 2017, he says, he spotted one of the most elusive sea mammals that inhabit Sri Lanka’s waters: dugongs (Dugong dugon).
It wasn’t just a single dugong, either. Fernando says he saw a family of five before they quickly disappeared in the murky waters. He never saw any dugongs again after that, despite operating boat tours daily, and that lone encounter remains deeply etched in his mind.
Then in March this year, a new sighting was reported: a dead dugong had washed up dead in a different part of the lagoon. Two weeks later, there was another dead dugong. Fernando says he didn’t go to see either, fearful they were from the family he’d spotted four years earlier.
Both were about 1.5 meters (5 feet) long and hence considered juveniles, about 7 years old, says Ranil Nanayakkara of Biodiversity Education and Research (BEAR). Dugongs are thought to live to about 70 years in the wild, which means these two died of unnatural causes, he says.
“The first dugong could be a victim of fish net entanglement, but the second one is definitely a victim of blast fishing, evident by the blood strains coming out of its eyes and nose,” Nanayakkara, a member of the IUCN/SSC Sirenia Specialist Group, told Mongabay.
Hunting, blasting and entanglement
In Sri Lanka, dugongs, also known as “sea cows” because they graze on seagrass on the ocean floor, are found only in the seagrass meadows of the Gulf of Mannar, Palk Bay and Palk Strait, the north and northwest arc of Indian ocean that separates Sri Lanka from India. The species’ conservation status has been assessed as vulnerable on the IUCN Red List.
Historical accounts indicate that dugongs were abundant in Sri Lankan waters decades ago, but were decimated by hunting for their meat, considered a delicacy by some communities.
They’re slow breeders, with a year-long pregnancy, and newborn calves depend on the mother’s support for several months; so the hunting pressure exacerbated the population decline.
In 1970, Sri Lanka declared the dugong a protected species under the Fauna and Flora Protection Ordinance (FFPO), but illegal hunting persists.
An average of about a dozen dugong bodies are reported annually, but conservationists say far more cases go unreported. Many are victims of blast fishing, or dynamite fishing, which is illegal in Sri Lanka but still commonly practiced.
Though often the unintended victims of blast fishing, but dugong are also sometimes deliberately targeted because they’re seen as a lucrative catch for the black market, says Prasanna Weerakkody of the Ocean Resources Conservation Association (ORCA).
Entanglement in fishing gear also poses a serious threat, Weerakkody says. He cites bottom-set gill nets, typically set for rays and skates, as particularly risky to dugongs as they graze on the seabed.
“When a dugong gets caught in a net, it rolls its body with the intention to get away from the net, but this further tightens the net, eventually killing the dugong due to suffocation as they cannot surface for oxygen,” Weerakkody says.
Conservation needs
Amid these persistent threats, Sri Lanka has taken measures to protect its dugongs. From 2015 to 2018 it was part of the global Dugong and Seagrass Conservation Project implemented in eight countries. The project ended with the production of a dugong seagrass conservation management plan for Sri Lanka, which recommended several actions to reduce dugong mortality and ensure their long-term survival.
Arjan Rajasuriya, coordinator of the coastal and marine program at IUCN Sri Lanka and a member of the dugong project management planning committee, said that while some actions were taken during the project’s duration, many recommendations have still not been implemented.
A proposal to establish three new marine protected areas (MPAs) covering 902 square kilometers (348 square miles) of core dugong habitat is one such recommendation. Two of these MPAs were proposed for the Gulf of Mannar, and the third in Palk Bay.
Sri Lanka already has several MPAs, but they aren’t well-managed and have failed to achieve conservation objectives, according to a 2007 review. These MPAs are administered under the Department of Wildlife Conservation, but the agency doesn’t have a strong marine conservation unit.
Against such a backdrop, the mere declaration of marine protected areas won’t be effective in dugong conservation, Rajasuriya tells Mongabay.
“While it is important to declare these areas as MPAs, regular monitoring and management are key to ensuring the dugong’s safety,” he adds.
A top-down conservation approach for marine species may also not be as successful as a co-management strategy that engages local communities in the conservation efforts, Rajasuriya says.
“These communities too should get monetary benefits from the earnings of tourism in the area, so they get a sense of ownership that would stimulate them to protect rare marine species such as dugongs,” he says.
The latest version of Sri Lanka’s red list, published in 2012, doesn’t assess the conservation status of marine mammals at the national level. But the upcoming update will change this, BEAR’s Nanayakkara says, and for the first time will list the dugong as critically endangered.
Read the original article at Mongabay
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