Matthew Cassel has reported on the Middle East for over a decade, including a five-year stint covering the Arab world for Al Jazeera. Living and working in Istanbul, he saw the rising tide of refugees making their way to Europe in 2014. But as he noted in an interview with Field Notes, traditional news outlets were slow to recognize the gravity of the crisis. While coverage existed, media attention didn’t intensify “until Alan Kurdi, who was the young poor kid from Kobaní, inside Syria, washed up on the shore in Turkey — if you remember that iconic image from September of 2015,” he said. “But there were people who were dying, people who were struggling to get to Europe before that.”
Among the more than 1 million people to undertake that journey was Aboud Shalhoub, a Syrian jeweler whom Cassel met in Istanbul. From Turkey to Greece, and through Eastern Europe to the Netherlands, Cassel made the migration with Shalhoub, creating a six-part documentary film recorded over an eventful and tumultuous year. Produced by Field of Vision in collaboration with The New Yorker, The Journey can be viewed here. Reached via Skype in Istanbul, Cassel talked about meeting and growing close to Shalhoub, the importance of telling a parallel narrative of Shalhoub’s family in Damascus, and the value of long-form, ground-level reporting inside itinerant communities.
How did you come to make a film about Aboud Shalhoub? Did you meet organically or were you explicitly looking for a subject to follow?
Matthew Cassel: I live in Istanbul and speak Arabic, and have lived among Syrians and Palestinians and other refugee communities in this region for a very long time. Last year I knew something big was going on, because so many of my Syrian friends in Istanbul were looking for a way out. I was working somewhat regularly for an outlet and tried to pitch numerous stories on Syrian refugees, but there was very little interest among editors, especially those based in the U.S. and Europe. Then I met this guy Aboud. He’s a father trying to make a living for himself in Turkey, working as hard as he can and barely making enough to support himself, let alone his two kids and wife back in Syria. He couldn’t go back to Syria, so he felt his only option was to travel to Europe and apply for asylum and then family reunification. That was the only way he could be with his family. My bosses weren’t really interested in the story, but I was interested in Aboud — I was amazed by his motivation and what he was willing to do to be with his family. So I was like, fuck it — I picked up a camera and started filming with him, and kind of self-funded for the first four or five months. I had no idea, and he had no idea, what would happen one day to the next, and I just got deeper and deeper into it with him until we crossed the whole Balkans by foot.
Did Aboud have a sense that his story was representative of a larger phenomenon? Did he understand the significance of what your making a film about his story could mean?
Cassel: I don’t think so. He’s just one guy. He didn’t see himself representing a bigger trend or anything like that. He’s Syrian, he loves Syria like most Syrians do, and he wanted to stay close to Syria. But he knew, like many Syrians, that he couldn’t go back, and just had this very clear objective to get to a place where he could be with his wife and his kids. And he took it one step at a time until he eventually made it there.
I guess I’m still curious about what you discussed with Aboud in terms of your plans for the film, and why he let you into his life.
Cassel: I don’t know if he was crazy about being on camera or anything — I mean, you always have to question why someone agrees to be filmed. Is it because they want their face on camera, or want their story told, or want help? The way I actually met Aboud was that he was introduced to me through a mutual friend. [Aboud and his brother] were trying to go to Greece, and they came to me because I’m a foreigner and journalist and they thought I might have connections with the U.N. in Greece and help prevent them from being sent back by border guards. Which eventually did happen. I think maybe Aboud and the guys who were with him knew — and rightfully so — that if there was an American journalist with them it would provide some kind of protection if they were to get arrested by border guards. That it could prevent them from being abused or detained and sent back or whatever.
It’s one thing to have an intimacy with Aboud, with whom you wound up spending many months, but during that journey there seems to have been an incredible ease between you and the rest of the emigres as well. The camera just seems to be there.
Cassel: This is how I feel journalism should really be done. You feel like you’re actually practicing real journalism when you can be so close to people as opposed to just getting a sound bite. I completely immersed myself in this group of people and followed them. What helped the camera disappear for the group is that I was doing the trip, just as they were. Sure, I’m an American, I have all kinds of privilege, and my motivations for doing the trip were not the same motivations they had. I’m not trying to claim in any way that I was one of them. But in a sense I was, because I was going through the same hardships that they were. We were sleeping together in farmlands, we were bathing in rivers together, we were getting food from gas stations and were worried about getting arrested by police. I think some people were skeptical of me, but for the core of the group, and the group that I spent a lot of time with, I just became one of the travelers in their group, and I happened to have a camera with me.
There were no other crew members?
Cassel: I did it all on my own.
When did the Damascus part come into it, and how did you manage and orchestrate footage that you weren’t there to film?
Cassel: That was something crucial, because I didn’t want to focus only on the journey. I wanted to tell a full picture of this family. We’ve heard a lot about the journey from various news reports since 2015, what people go through. But for me the most crucial part of this story is the family reunification process. That’s what’s motivating Aboud to do it. People accuse refugees and migrants of coming to Europe to take jobs, or to take money from the rich European states, but for Aboud it was nothing like that. Aboud wanted to get there because he saw it as the only viable option for reuniting with his wife and two kids. So to do this story properly I had to film this bigger story, and that meant also filming in Damascus. For me to get a visa to Damascus would have been very difficult, so I ended up hiring a great young videographer, Simone Saufier, who was able to film with the family. One of the most important parts of the entire series is when we see Christine and the two kids, Joseph and Natalia, leaving home in Episode 5, and saying goodbye to their family. We don’t often get to see how difficult a decision it is for people coming from Damascus — which is an ancient city, one of the oldest in the world — to just get up and go to rural Netherlands. Do you think people want to leave Damascus where they’ve lived for 2,000 plus years and just move? Of course they don’t, so it’s a very difficult choice. It’s really crucial to understand who these refugees and economic migrants coming to Western countries are, and what they’re leaving behind.
Those scenes really are crucial. You get a chance to see that they have a life there, they have a home, which they’re giving up for such uncertainty and often danger. I also love the meaningful banality of him talking about adjusting to the cold and worrying about Christine leaving the warmth of their homeland.
Cassel: I’ve been to many towns in rural Netherlands and Germany and Sweden over the course of the past year, following different families and people who I’ve met along the way. I’ve also been to Damascus many times. And I can tell you that if I had the choice — and no offense against Northern Europe — but I would definitely choose Damascus over, you know, Bordhausen, Netherlands. I think Aboud would too, but circumstances are beyond his control.
In the fifth episode there’s talk about how much Aboud has changed over the 2 1/2 years he and Christine have been apart, and I wonder what you felt as that evolved, having never met Christine, and having seen the ways Aboud had adjusted to life on his own.
Cassel: I was really nervous about it for them. I mean, this is almost three years of them not seeing each other, and people change over time. Aboud never lived during the uprising and the war and all of that, and Christine was in the heart of it, while Aboud was on his own trying to make a life in Istanbul. I was on the plane with the family before we reconnected with Aboud, and I was thinking: “What’s going to happen when Aboud sees his wife, when he sees his two kids?” When you think about leaving your two children who were around 5 and 2 1/2 the last time you saw them, to not see them for three years, that’s just incredible. No parent should have to go that long without seeing their kids. So it was really hard holding the camera when Aboud finally got to embrace his young daughter and his young son for the first time. They’re different people, you know? They’re probably twice the size that they were when he last saw them. Thankfully I had a second camera person there because I was really struggling to hold the camera steady at that moment — it was very emotional for everyone.
The footage incorporates people in the background at the airport smiling, or just glancing over at the reunion, and I couldn’t help but think that they have no idea what the story is. We see reunions like that every day, and we never know what led people there.
Cassel: After being part of that incident, I now look at families and people waiting and saying goodbye at airports and wonder more about their own stories.
How did you come to shape the film into six chapters and conceive of doling out footage episodically?
Cassel: I’ve worked for a lot of TV outlets that have very structured, fixed formats. But I know that my peers and friends, and especially people younger than me, aren’t relying on TV as much as they once did for news. I love when content is available for free online to whoever has an internet connection. It can be played whenever you sit down at your computer — you don’t have to wait for 8 o’clock on BBC, CBS, or CNN. I’m not interested in TV or distribution or film festivals or anything, I just want the film to go online so everyone can watch it. So the episodic format I think works better for people who are going to sit down and watch 10 or 12 minutes instead of putting in an hour and 20. I think the episodic format works better for that.
I watched it in one sitting, which helped me to see and feel the full arc of the journey. But I could also appreciate how each episode has a shape and thematic thrust of its own.
Cassel: At the end it’s still one narrative. We’d decided on the episodic [structure] after I’d filmed most of it so it was more about editing the episodes down and giving them a unique identity apart from the one before and after. Although if it weren’t an episodic film we might not have done Episode 6. We added this other episode to give more of a contextual picture of what’s happening in Europe at the moment with the rise of the far right, with the attacks on refugees.
Episode 6 also sees us revisit the woman with her daughters we’d met on the journey. Had you been in touch with her throughout?
Cassel: Yeah, those two girls are so important to me. They changed the group dynamic. Before those two girls came it was a group of guys 35 and younger, and everyone’s kind of macho and whatnot. Then these two little girls join the group and turned us into this group of caring uncles. We all felt a responsibility to look out for them. Those two girls are so amazing. I never lost contact with them and I have no plan of ever going out of contact with them.
You can see how they change things in the film. They show up and there’s that moment of, “Oh, they might drag us down, this will make the journey harder,” but then seconds later they’re on everybody’s shoulders.
Cassel: They added so much levity to the journey. It was like, if these 5- and 6-year-old sisters aren’t complaining, how can the rest of us be complaining? They’re just laughing and having fun the whole time, and it was really a joy to have them on the trip. And their mother, Fadwa, is obviously very strong and brave for what she endured and what she did to get them to Sweden.
What’s it like to experience such depth of intimacy, over such a long time, and then publicly share it through your film?
Cassel: I’m very fortunate that I was able to spend time with people like Aboud, Christine, Fadwa and all of the others on the trip, getting close to them so I could tell their stories in an accurate and intimate way. I feel that for various reasons this has been lacking in the reporting of this issue. These are just a few people at the heart of the story, and they’re not necessarily the same as everyone else. I’m really happy that it’s going to be out there, that people are going to get to see at least a few individual stories and get a sense of who these people are, and why they’re making the trip.
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An internal Defense Department investigation into one of the most notorious night raids conducted by special operations forces in Afghanistan — in which seven civilians were killed, including two pregnant women — determined that all the U.S. soldiers involved had followed the rules of engagement. As a result, the soldiers faced no disciplinary measures, according to hundreds of pages of Defense Department documents obtained by The Intercept through the Freedom of Information Act. In the aftermath of the raid, Adm. William McRaven, at the time the commander of the elite Joint Special Operations Command, took responsibility for the operation. The documents made no unredacted mention of JSOC.
Although two children were shot during the raid and multiple witnesses and Afghan investigators alleged that U.S. soldiers dug bullets out of the body of at least one of the dead pregnant women, Defense Department investigators concluded that “the amount of force utilized was necessary, proportional and applied at appropriate time.” The investigation did acknowledge that “tactical mistakes” were made.
The Defense Department’s conclusions bear a resemblance to U.S. Central Command’s findings in the aftermath of the horrifying attack on a Médecins Sans Frontières hospital in Kunduz, Afghanistan, last October in which 42 patients and medical workers were killed in a sustained barrage of strikes by an AC-130. The Pentagon has announced that no criminal charges will be brought against any members of the military for the Kunduz strike. CENTCOM’s Kunduz investigation concluded that “the incident resulted from a combination of unintentional human errors, process errors, and equipment failures.” CENTCOM denied the attack constituted a war crime, a claim challenged by international law experts and MSF.
The February 2010 night raid, which took place in a village near Gardez in Paktia province, was described by the U.S. military at the time as a heroic attack against Taliban militants. A press release published by NATO in Afghanistan soon after the raid asserted that a joint Afghan-international operation had made a “gruesome discovery.” According to NATO, the force entered a compound near the village of Khataba after intelligence had “confirmed” it to be the site of “militant activity.” As the team approached, they were “engaged” in a “fire fight” by “several insurgents.” The Americans killed the insurgents and were securing the area when they made their discovery: three women who had been “bound and gagged” and then executed inside the compound. The U.S. force, the press release alleged, found the women “hidden in an adjacent room.” The story was picked up and spread throughout the media. A “senior U.S. military official” told CNN that the bodies had “the earmarks of a traditional honor killing.”
But the raid quickly gained international infamy after survivors and local Afghan investigators began offering a completely different narrative of the deadly events that night to a British reporter, Jerome Starkey, who began a serious investigation of the Gardez killings. When I visited Starkey in Kabul, he told me that at first he saw no reason to discount the official story. “I thought it was worth investigating because if that press release was true — a mass honor killing, three women killed by Taliban who were then killed by Special Forces — that in itself would have made an extraordinary and intriguing story.” But when he traveled to Gardez and began assembling witnesses to meet him in the area, he immediately realized NATO’s story was likely false. Starkey’s reporting, which first uncovered the horrifying details of what happened that night, forced NATO and the U.S. military to abandon the honor killings cover story. A half-hearted official investigation ensued.
Witnesses and survivors described an unprovoked assault on the family compound of Mohammed Daoud Sharabuddin, a police officer who had just received an important promotion. Daoud and his family had gathered to celebrate the naming of a newborn son, a ritual that takes place on the sixth day of a child’s life. Unlike the predominantly Pashtun Taliban, the Sharabuddin family were ethnic Tajiks, and their main language was Dari. Many of the men in the family were clean-shaven or wore only mustaches, and they had long opposed the Taliban. Daoud, the police commander, had gone through dozens of U.S. training programs, and his home was filled with photos of himself with American soldiers. Another family member was a prosecutor for the U.S.-backed local government, and a third was the vice chancellor at the local university.
At about 3:30 a.m., when the family heard noises outside their compound, Daoud and his 15-year-old son Sediqullah, fearing a Taliban attack, went outside to investigate. Both were immediately hit with sniper fire.
“All the children were shouting, ‘Daoud is shot! Daoud is shot!’” Daoud’s brother-in-law Tahir recalled when I visited the family compound in 2010. Daoud’s eldest son was behind his father and younger brother when they were hit. “When my father went down, I screamed,” he told me. “Everybody — my uncles, the women, everybody came out of the home and ran to the corridors of the house. I sprinted to them and warned them not to come out as there were Americans attacking and they would kill them.”
Within a matter of minutes, a family celebration had become a massacre. Seven people died, including three women and two people who later succumbed to their injuries. Two of the women had been pregnant. Sixteen children lost their mothers.
The Americans were still present when survivors prepared burial shrouds for those who had died. The Afghan custom involves binding the feet and head. A scarf secured around the bottom of the chin is meant to keep the mouth of the deceased from hanging open. They managed to do this before the Americans began handcuffing them and dividing the surviving men and women into separate areas. Several of the male family members told me that it was around this time that they witnessed a horrifying scene: U.S. soldiers digging the bullets out of the women’s bodies. “They were putting knives into their injuries to take out the bullets,” Sabir told me. I asked him bluntly, “You saw the Americans digging the bullets out of the women’s bodies?” Without hesitation, he said, “Yes.” Tahir told me he saw the Americans with knives standing over the bodies. “They were taking out the bullets from their bodies to remove the proof of their crime.”
The U.S. military’s internal investigation into the raid, which was described in detail in the documents obtained by The Intercept, was ordered by Gen. Stanley McChrystal, the former commander of the Joint Special Operations Command, who at the time of the raid was the commander of all international forces in Afghanistan. The lead investigator, whose identity was redacted, noted at the beginning of the report that he did not visit the scene of the raid, saying that the risks of “re-awakening emotional and political turmoil” would not have been “worth the cost.” Instead, family members of the victims were asked to travel to a U.S. base to be interviewed.
The documents’ redactions and omissions are perhaps more interesting than the conclusions of the investigation. U.S. Central Command released 535 pages, including more than 100 photographs taken at the scene, but withheld nearly 400 additional pages, stating that they are exempt from FOIA for national security reasons. Photographs of bodies and wounds were redacted. The documents include NATO press releases and talking points claiming that the victims of the U.S. attack were Taliban militants and offering the standard assurances that “Coalition Forces take every precaution to ensure non-combatant civilians are protected from possible hostilities during the course of every operation.” An error-laden “questions and answers” document stated that during the operation, “two militants [were] killed and one wounded,” and “one women and two children were protected.” A list of talking points titled “Post Operation IO and Mitigation” characterized the “Area Tribe” in the following terms: “One Ph.D described them as ‘great robbers’ and ‘utter savages’ and that their country was formerly a refuge for bad characters.”
While the investigation asserted that the soldiers did not dig any bullets out of the bodies of the dead, the sections of the investigation addressing this allegation were almost entirely redacted. The investigation found that the survivors interviewed in the raid’s aftermath, referred to as “detainees,” provided credible testimony. The report also noted “consistency in all eight detainees’ statements that would be impossible to pre-plan without prior knowledge of specifics of the operation,” adding that “the detainee reports corroborate that the women died when they tried to stop Zahir [one of the men killed] from exiting the building.”
Despite this assessment of the credibility of the survivors’ testimony, the Pentagon investigation dismissed outright the statements from multiple witnesses, including the husband of one of the dead women, that the Americans dug bullets from the women’s bodies. “This investigation found no attempt to hide or cover up the circumstances of the local national women’s deaths,” the executive summary of the investigation concluded. The investigators were instructed by the main U.S. command at Bagram to determine: “Did anyone alter, clean or otherwise tamper with the scene in any way following the operation, and if so, why?” The answer to that question was completely redacted.
The investigation did note, however, that the Afghan investigation conducted immediately after the raid “reports that an American bullet was found in the body of one of the dead women, but it does not say how that bullet was found or who removed it from the woman.” Citing statements from the members of the strike force that conducted the raid, the investigators asserted, “There is no evidence to support that bullets were removed from the bodies by anyone associated with U.S. forces.”
The initial press release on the raid contained erroneous information about the women being bound and gagged, according to the investigation, because “the ground force was confused by the unfamiliar sight of the women prepared so quickly for burial and firmly believed that they did not kill the three women.” The investigation concluded that the “assumption” that the women “had been killed by Afghans and placed on the scene” was an “honest assessment” and the result of a “lack of cultural awareness,” not “an attempt to mislead higher headquarters.”
According to the instructions provided to investigators, the U.S. forces claimed the women had been killed as many as two days before the raid occurred, but the report observed that their “remains were collocated with EKIA,” enemies killed in action, and photos taken in the immediate aftermath showed the women with wounds indicating they had been killed during the raid. “Was this an attempt to deceive?” That question was not answered in the documents provided by the Pentagon, at least not in an unredacted format.
The report also noted a curious contradiction. One of the men killed by American forces had been prepared for burial just as the dead women were — with a cloth wrap tied around his head so his jaw would remain closed. Yet when the U.S. forces first reported on the raid, they described only the women as having their heads bound and suggested their deaths were the result of a “cultural custom.”
The cause of death listed for the men was gunshot wounds to the chest. For the three women, the cause of death was “wounds.” The most credible theory, according to the final report, was that the women were killed in a “shoot through” once the raid had begun, and that their deaths were unintentional — and unknown to the shooters.
“It is undeniable that five innocent people were killed and two innocent men were wounded in the conduct of this operation,” the report stated. “To simply call this ‘regrettable’ would be callous; it is much more than that. However, the unique chain of events that led to their deaths is explicable.”
According to the report, the university official who was at the party inside the compound called the police headquarters in Paktia as the raid was beginning because he believed the house was coming under attack from the Taliban. All the witnesses interviewed stated that Mohammed Daoud, the Afghan police commander, left the party and entered the courtyard, believing he was confronting a Taliban attack. Still, the investigation concluded that the U.S. forces were justified in shooting him, as well as his cousin Mohammed Saranwal Zahir, the local prosecutor. The investigators found that the men had showed “hostile intent” because they were armed with rifles.
In the end, the investigation determined that American forces had followed the rules of engagement and standard operating procedures during the raid, concluding only that there were “tactical mistakes made.” The investigation recommended that the coalition forces “make an appropriate condolence payment to the family as a sign of good faith in our sincerity at the seriousness of the incident.”
Because of excessive redactions, these documents fail to answer many questions. While the report referenced “Special Forces,” the specific unit was redacted. The report also seemed to indicate that the strike force came from a base in another province, rather than the local base in Paktia, yet offered no explanation. The letter accompanying the documents provided to The Intercept stated that some documents could not be released because they would expose “inter-agency and intra-agency memorandum.” What other agencies were involved in this raid and subsequent management of the fallout and investigation? Who provided the Americans with the intelligence that led to the raid, which claimed that a Taliban facilitator was present? No explanation was given for why the documents, which were requested from SOCOM, the parent command of JSOC, under the Freedom of Information Act in March 2011, were only now released, after being reviewed by another — unnamed — agency.
The report noted that “there are considerable questions about the cause of the females’ deaths and males’ injuries” as well as “multiple inconsistencies between what was observed and what has since been reported by local nationals.” If the women were killed by U.S. forces, even in a “shoot through,” what happened to the bullets? The report stated that the throat of one of the women had been slit with a knife and that another dead body contained knife marks on the chest. Where did these lacerations come from? One investigator observed a blood splatter pattern that “appeared to be more consistent with blunt force trauma” and suggested “someone had possibly slipped on the ice and split open his or her head on the hard concrete.” If that is truly what the splatter indicated, then which person received those injuries? If the investigators determined the surviving witnesses of the raid were convincing and credible, why then was their testimony about Americans digging bullets out of the women’s dead bodies discarded?
Mohammed Sabir was one of the men singled out for further interrogation after the raid. With his clothes still caked with the blood of his loved ones, Sabir and seven other men were hooded and shackled. “They tied our hands and blindfolded us,” he recalled. “Two people grabbed us and pushed us, one by one, into the helicopter.” They were flown to a different Afghan province, Paktika, where the Americans held them for days. “My senses weren’t working at all,” he recalled. “I couldn’t cry, I was numb. I didn’t eat for three days and nights. They didn’t give us water to wash the blood away.” The Americans ran biometric tests on the men, photographed their irises, and took their fingerprints. Sabir described to me how teams of interrogators, including both Americans and Afghans, questioned him about his family’s connections to the Taliban. Sabir told them that his family was against the Taliban, had fought the Taliban, and that some relatives had been kidnapped by the Taliban.
“The interrogators had short beards and didn’t wear uniforms. They had big muscles and would fly into sudden rages,” Sabir recalled, adding that they shook him violently at times. “We told them truthfully that there were not Taliban in our home.” One of the Americans, he said, told him they “had intelligence that a suicide bomber had hidden in your house and that he was planning an operation.” Sabir told them, “If we would have had a suicide bomber at home, then would we be playing music in our house? Almost all guests were government employees.” By the time Mohammed Sabir returned home after being held in American custody, he had missed the burial of his wife and other family members.
In the end, the commander of the Joint Special Operations Command, Vice Adm. William McRaven, visited the compound in Gardez accompanied by a phalanx of Afghan and U.S. soldiers. He made an offer to the family to sacrifice a sheep, which his force had brought with them on a truck, to ask forgiveness.
“We call them the American Taliban,” added Mohammed Tahir, the father of Gulalai, one of the slain women.
The internal investigation ordered by Gen. McChrystal into the Gardez raid is an incomplete accounting of this horrifying incident. It is also based on the word of the force that carried out the killings, whose personnel could have faced serious charges under the Uniform Code of Military Justice if investigators had taken seriously the survivors’ allegations.
Portions of this article were adapted from Scahill’s 2014 book, Dirty Wars.
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In a small but significant victory for free speech, Col. Morris Davis, the former chief prosecutor at Guantánamo Bay, announced a $100,000 settlement Tuesday in his lawsuit against the Library of Congress’s Congressional Research Service.
Davis was fired from the CRS in 2009 for authoring two opinion pieces (one in the Wall Street Journal, the other in the Washington Post) that criticized President Obama for prosecuting some terror suspects in federal courts and others in military commissions — what Davis called a “dangerous legal double standard.”
Davis became an assistant director at CRS after retiring from a 25-year career as an Air Force lawyer in 2008.
The ACLU sent a letter to CRS in 2009 asking for Davis’s reinstatement, noting that his work at CRS had nothing to do with Guantánamo Bay. When CRS refused, the ACLU sued on Davis’s behalf.
The Supreme Court has previously ruled that government employees do not have First Amendment rights when speaking in an official capacity. But the taglines in Davis’s pieces made it clear that he was writing in a personal capacity and did not even mention the CRS.
Davis hailed the settlement as a vindication of his right to speak out about Guantánamo.
“I spent 25 years in the military defending the Constitution, only to be told by the library that it didn’t apply to my personal speech” he said in a statement. “Guantánamo remains too important a conversation about who we are as Americans to let the federal government try and silence the debate.”
Davis had already built a record of speaking out about injustice at Guantánamo by the time the CRS hired him. While still at Guantánamo, Davis tried to ban the use of evidence obtained under torture, but his superiors overruled him. After William Haynes — the Pentagon general counsel and a key player in the President Bush’s torture program — became his boss, Davis resigned. “The guy who said waterboarding is A-OK I was not going to take orders from,” he explained at the time.
During the 2008 presidential campaign, Obama called the military commissions at Guantánamo Bay a “flawed system.” But he endorsed them after deciding not to try Khalid Sheikh Mohammed — the self-described mastermind of the 9/11 attackers — in a federal court in Manhattan. Mohammed’s case is still held up in pretrial motions, and the military commissions system has yet to achieve a verdict for any of the 9/11 attackers.
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The post Fired for Speaking Out on Guantánamo, Former Prosecutor Settles With Library of Congress appeared first on The Intercept.
Courts across the country are grappling with a key question for the information age: When law enforcement asks a company for cellphone records to track location data in an investigation, is that a search under the Fourth Amendment?
By a 12-3 vote, appellate court judges in Richmond, Virginia, on Monday ruled that it is not — and therefore does not require a warrant.
The 4th Circuit Court of Appeals upheld what is known as the third-party doctrine: a legal theory suggesting that consumers who knowingly and willingly surrender information to third parties therefore have “no reasonable expectation of privacy” in that information — regardless of how much information there is, or how revealing it is.
Research clearly shows that cell-site location data collected over time can reveal a tremendous amount of personal information — like where you live, where you work, when you travel, who you meet with, and who you sleep with. And it’s impossible to make a call without giving up your location to the cellphone company.
“Supreme Court precedent mandates this conclusion,” Judge Diana Motz wrote in the majority opinion. “For the Court has long held that an individual enjoys no Fourth Amendment protection ‘in information he voluntarily turns over to [a] third part[y].’” The quote was from the 1979 Supreme Court case Smith v. Maryland.
The 5th, 6th, and 11th circuits have reached the same conclusion.
However, there’s been a lot of disagreement within the lower courts and among privacy advocates that the third-party doctrine is consistent with the way people live their lives in the digital age — primarily on their cellphones.
A three-judge panel of the 4th Circuit in fact first ruled last August that getting cell-site records in bulk did constitute a search, triggering a warrant requirement. In the case, United States v. Graham, the government obtained 221 days’ worth of records belonging to a robbery suspect in Baltimore.
The panel’s opinion relied heavily on a separate legal theory, called mosaic theory, to come to that conclusion: the argument that even if one instance of evidence gathering doesn’t count as a search, asking for a large number of data points can eventually amount to one.
For a while, it looked like there might be a split in the lower courts that would require the Supreme Court to reconsider the third-party doctrine.
But now that the 4th Circuit has ruled, that seems less likely.
Privacy advocates were disappointed:
So depressing: 4th Cir Ct of Appeals en banc holds government doesn't need warrant to access cell site location info https://t.co/SgRqyhvRzV
— Jen Lynch (@lynch_jen) May 31, 2016
I have to believe that we have a good chance of reigning in the 3rd Party Doctrine's wild over-application. But today I'm not optimistic.
— Nate Cardozo (@ncardozo) May 31, 2016
The three judges in the minority wrote a strongly worded dissent.
“Only time will tell whether our society will prove capable of preserving age-old privacy protections in this increasingly networked era. But one thing is sure: this Court’s decision today will do nothing to advance that effort. I dissent,” Judge James Wynn wrote, joined by Henry Floyd and Stephanie Thacker.
“This is a sign that lower courts are still following the third-party doctrine,” Orin Kerr, a law professor at George Washington University Law School, wrote in an email to The Intercept. “I think the 4th Circuit correctly applied Supreme Court law. But that doesn’t tell us what the Supreme Court might do.”
While this case “removes the circuit split,” he wrote, a Supreme Court consideration of third-party doctrine issues “will probably happen eventually.”
Nate Wessler, a staff attorney with the American Civil Liberties Union’s Speech, Privacy, and Technology Project, said he remains hopeful.
“In virtually every one of these cases, there have been very strong dissents. That in itself is a very strong message to the Supreme Court,” he said.
He also pointed out that many judges in the majority on these cases have signaled that it may be time for the Supreme Court to revisit the issue. And in several of the appellate cases, judges have called on Congress to do something about it.
Congress is poised to consider the privacy implications of searching stored emails, Wessler said, pointing to popular reform in Congress of the Electronic Communications Privacy Act, which passed the House unanimously, requiring law enforcement to get a warrant to search old emails.
“Hopefully they can muster the same for location information,” he said.
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Lawmakers on Capitol Hill are proudly touting recently passed measures to address the nation’s growing heroin and opioid crisis, but the legislation may have handed the drug companies at the center of the epidemic a major victory.
The legislation focuses on treating addiction and does nothing to limit the role of pharmaceutical companies in fueling the opioid crisis. In fact, it instructs the federal government to review and potentially undo sweeping new guidelines that recommend less prescribing of highly addictive opioid painkillers such as OxyContin, Percocet, and Vicodin.
The review panel would be made up of a range of stakeholders including pain management groups, many of whom are financially tied to the drug industry.
Four out of five people addicted to heroin began using it after trying prescription opioid painkillers, which provide a similar high. Investigations have found that drug companies orchestrated much of the epidemic by promoting claims that opioids are not addictive and by financing third party groups that promote opioid painkillers for minor pains, such as toothaches.
Now the boldest effort to curb the flow of legal opioids may face a setback.
The Centers for Disease Control issued new guidelines in March to encourage doctors to prescribe opioids with low dosages, and only after other pain relief treatments, such as ibuprofen, have been tried. Since the voluntary guidelines were first leaked online last year, the drug industry has reacted furiously, even convening regularly in Washington to discuss how to derail the proposal. A legal group funded by the makers of OxyContin threatened the CDC with a lawsuit.
The legislation, which passed the House and Senate and is currently in conference committee, calls for the prescribing guidelines to be reviewed and potentially changed by a new panel made up of representatives from a range of stakeholders, and for the revisions to incorporate “pain management” expertise from the “private sector.” The legislation calls for the task force to be convened by the end 2018, and for it to issue a report within 270 days.
“We must make sure that these guidelines are updated and reviewed regularly,” said Rep. Susan Brooks, R-Ind., who cosponsored one of the House bills now being merged with the Senate version, which contains similar language instructing a new panel to review the guidelines.
The demand for pain advocacy and pain specialists to review the CDC guidelines comes as recent reports show that the leading societies for pain management have been funded and controlled by painkiller companies for years.
One leading pain advocacy group, the Pain Care Forum, is funded and largely controlled by Purdue Pharma, the makers of OxyContin. According to a report from the Associated Press, the Pain Care Forum organized a lobbying campaign last year to defeat the CDC guidelines.
A complaint filed by the City of Chicago found that Burt Rosen, the chief in-house lobbyist for Purdue Pharma, has used pain advocacy groups like the Pain Care Forum to advance his company’s agenda. The complaint alleges that Rosen instructs the Pain Care Forum on “what to do and how we do it.”
The American Pain Foundation, another leading pain advocacy organization, shut down after a ProPublica investigation found that the group received 90 percent of its funding from the drug and medical device industry, and had regularly advocated on behalf of painkiller companies.
The push for a panel to review and modify the CDC guidelines can also be traced to the drug industry.
Endo Pharmaceuticals, the makers of Percocet, retained registered lobbyists who have worked to influence Brooks’s legislation, which is cosponsored by Rep. Joe Kennedy, D-Mass., according to disclosures.
Advocacy groups backed by the drug industry have also pushed against CDC guidelines.
“Rep. Susan Brooks’s bill would create a more transparent and inclusive process for the development of best practices in pain management and prescribing pain medications than the CDC used in formulating its opioid prescribing guidelines,” says Michael Barnes, the executive director of the Center for Lawful Access and Abuse Deterrence (CLAAD). Barnes is also the managing attorney at D.C. law firm that specializes in helping drug companies with “legislative and regulatory strategies.”
Earlier this month, Barnes gave a presentation to state legislators in which he decried the CDC guidelines as “affiliated with anti-opioid activists” and praised Brooks’s legislation to create a new process. Barnes’s CLAAD has received funds from Purdue Pharma and Endo.
Dr. Andrew Kolodny, the director of Physicians for Responsible Opioid Prescribing, dismissed the arguments from CLAAD, calling it a “front group for pharma.” Kolodny said that industry-funded groups like CLAAD “argue that efforts for more cautious prescribing, such as the CDC guideline, are bad for patients with pain” but that “their real agenda is to continue reaping profits from aggressive prescribing.”
As the CDC has reported, 78 Americans die every day from opioid abuse, and the U.S. has become the center of the world opioid market. Despite the U.S. accounting for only about 5 percent of global population, Americans consume almost all of hydrocodone products such as Vicodin, and nearly 81 percent of global supply of oxycodone products, such as Percocet.
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The World Resources Council recently reported that between 2000 and 2014, 21 countries, including the U.S., Germany, the U.K., Spain and Sweden, all managed to “decouple” GDP growth from CO2 emissions -- i.e. GDP in these countries expanded over this 14-year period while CO2 emissions fell. This is certainly a favorable development. But the crucial question remains: how favorable is it relative to what is necessary to put the global economy on a successful path to climate stabilization?
As of the most recent worldwide data (2012), global CO2 emissions are at around 32 billion tons per year. The Intergovernmental Panel on Climate Change (IPCC) provides conservative benchmarks as to what is required to stabilize the average global temperature at no more than 3.6 degrees Fahrenheit (2 degrees Celsius) above the pre-industrial average. The IPCC presents these benchmarks in terms of ranges and probabilities, but a fair summary of their assessment is that global CO2 emissions need to fall by 40 percent within 20 years, to 20 billion tons per year, and by 80 percent as of 2050, to 7 billion tons.
In a recent televised AP interview, Bernie Sanders was asked if he thought the Democratic Party convention this summer would be contentious. He replied, “I think if they make the right choice and open the doors to working-class people and young people and create the kind of dynamism that the Democratic Party needs, it’s going to be messy…Democracy is not always nice and quiet and gentle but that is where the Democratic Party should go ...
Samantha Power built her journalistic and academic career around human rights, criticizing powerful nations for their complicity in abuses and failure to stop acts of genocide.
Then she joined the Obama administration, where she currently serves as U.S. ambassador to the United Nations.
Early next month, Power will be receiving an award named for a man used to criticize quite harshly: former secretary of state Henry Kissinger, who has been implicated in a significant number of war crimes across the globe.
And she’ll be getting it from Kissinger himself.
The American Academy of Berlin’s Henry A. Kissinger Prize is awarded annually to a European or American diplomat.
Power can’t claim ignorance of Kissinger’s bloody, anti-human rights record.
In her book A Problem From Hell: America and the Age of Genocide, which documented the lack of response to global genocides, Power complained that President Gerald Ford’s administration — where Kissinger served as secretary of state — had “little credibility” to report to the public on the genocide happening in Cambodia under the Khmer Rouge regime because Kissinger “had bloodied Cambodia and blackened his own reputation.” Under Kissinger’s watch, the United States dropped nearly half a million tons of explosives on Cambodia, resulting in the deaths of thousands of noncombatants.
In the same book, she wrote of how Kissinger encouraged Iraq’s Kurds to engage in an armed revolt in the mid 1970s, only to withdraw support to build rapport with the country’s government — leading Iraqi leader Saddam Hussein to brutally uproot them in revenge. Power dryly notes Kissinger’s justification for these events, writing: “Henry Kissinger, U.S. secretary of state at the time, said of the American reversal of policy and the Kurds’ reversal of fortune, ‘Covert action should not be confused with missionary work.’”
Finally, in her book Sergio: One Man’s Fight to Save the World, she documented how Kissinger greenlighted the brutal Indonesian invasion of East Timor in 1975, which led to the death of hundreds of thousands of people. Power writes that Ford and Kissinger visited the Indonesian leader the day before the invasion: “Kissinger expressed some misgivings about the possible U.S. public reaction and cautioned: ‘We understand your problems and the need to move quickly, but I am only saying that it would be better if it were done after we returned [to the United States].’”
Power did not respond to a request for comment. However, a 2014 profile in the New Yorker may provide some insight into how Power’s worldview on human rights abusers has changed. “As time wears on, I find myself gravitating more and more to the G.S.D. [Get-Shit-Done] people,” she told the magazine. “We’re racing against the clock here to get as much done as we can. So when you run across people who know how to be bureaucratic samurais, or are especially persuasive in their diplomacy internationally, spend more time on those relationships, and on brainstorming with those individuals, to achieve a common purpose. Principles and positions only take you so far.”
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During much of her three years awaiting trial in New York’s Rikers Island jail, Candie Hailey was locked in a solitary confinement cell ventilated by a mold-covered air duct. The purpose of the vent was, of course, to pump fresh air into her 6-by-10-foot concrete room, but the mold infestation instead added to an array of hazards and discomforts that made her life unbearable at Rikers, where she made multiple attempts at suicide. “There was big, dark, gray, blackish mildew around the air vent and that’s where the air was coming from,” Hailey told me. “It’s what I was inhaling — it smelled like death.”
Hailey, who says she developed persisting asthma as a result of mold exposure, described overall conditions at Rikers that were so punishing not even the guards — who spent only a fraction of their time in the building — could withstand them. Hailey says that one officer implored her to complain to authorities about the conditions, as the employee feared she would be punished for doing so herself.
“‘Please call 311 or somebody,’” Hailey recalled a guard telling her. “That’s how bad it was.”
Hailey’s and her guards’ experiences are not unique to New York’s infamous island jail. On the issue of hazardous mold alone, numerous prison employees across the country have asserted that they cannot bear even their limited exposure to a condition that inmates must live with day in and day out, according to workplace safety complaints submitted to the Occupational Safety and Health Administration. During a one-year period ending January 15 of this year, OSHA received 81 workplace safety complaints regarding mold in penal institutions across the United States.
Citing alleged hazards at county jails, state penitentiaries, federal prisons, administrative offices, and youth centers, the grievances vary widely, but dozens of them adhere to the common theme that employees of jails and prisons fear for their health as a consequence of hazardous mold. One complaint, for instance, asserts that mold in air ducts in a state “minors unit” in Maricopa County, Arizona, poses a risk to the workers at the facility. A complaint regarding the county jail in Albany, New York, states that several “employees have respiratory ailments. There is no documentation of vents being cleaned.” One complaint from a San Diego federal prison flatly asserts that black mold at the facility is “currently making the employees sick.”
Some of the workplace complaints also note that hazardous mold conditions are making inmates sick.
Three separate complaints cite the GEO Group, a leading private prison corporation, for alleged mold violations at sites across the country. “Mold throughout building,” reads one occupational complaint regarding a GEO-run state prison in Milledgeville, Georgia. Another complaint against the GEO Group regarding a federal detention center in Texas states: “Mold found in housing 2, 3 and file area exposing employees to health issues.”
Multiple media reports have accused the GEO Group of housing inmates in substandard conditions in facilities contracted with local, state, and federal authorities. In 2007, an inmate at a GEO Group prison in Texas slashed his own throat, leaving behind notes that decried conditions such as “floors and walls covered in mold,” according to the Texas Tribune.
The OSHA documents contain no information about whether the individual complaints were judged to have merit or how they were resolved. In response to questions from The Intercept, OSHA said that it had responded to two of the complaints about the GEO Group’s facilities in Texas and that the two complaints did not meet all requirements for a formal complaint. The agency said it had no further records relating to the Milledgeville, Georgia, filing. The GEO Group did not respond to questions from The Intercept about the complaints and its policies regarding prison mold.
Hazardous mold tends to grow in humid spaces that are poorly ventilated, and aging facilities that warehouse prisoners in close quarters appear to be prime real estate for mold growth. Over the past two decades, researchers have linked the presence of excess mold to a number of health problems. In 2009, the World Health Organization asserted that the most significant effects of mold exposure “are increased prevalences of respiratory symptoms, allergies and asthma, as well as perturbation of the immunological system.”
Local news reports from around the country indicate that the OSHA complaints capture only a portion of such concerns. Employees at Allegheny County Jail in Pittsburgh, for instance, have recently voiced concerns about workplace health issues stemming from an alleged mold infestation, which the jail administration has denied. The jail was not cited in the OSHA complaints obtained by The Intercept. “You definitely feel it the first few hours you walk in the door,” said one of the jail’s employees, who wished to remain anonymous for fear of retaliation for speaking to the press. The employee said that one area of the jail was particularly infested, and some workers had developed health problems from their exposure. “These are people without ever before having allergies, and they’re suddenly getting irritable eyes, trouble breathing, scratchy throat, sneezing and coughing,” the employee said of co-workers.
Several of the OSHA mold complaints allege that prison workers are subjected to “sick building syndrome,” a term used to describe a structure that has become so infested with chemical or biological pathogens that the entire building seemingly becomes a vector of allergy-like health symptoms, ailments, and discomfort.
Hailey and others have described similar conditions on Rikers Island. Hailey said the ailing building itself felt like another form of punishment meted out to inmates as well as all the jail’s visitors. “It’s torture for us, but you’re also punishing the doctors, the officers, and the other staff who have to be there,” said Hailey, who after three years in jail was ultimately found not guilty on charges of attempted murder. “It’s like an abandoned building, but it’s filled with people.”
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A federal grand jury charged a 26-year old Virginia taxi driver with helping provide support for terrorists after he transported one of his associates, a would-be member of Islamic State, 90 minutes to the airport.
The cabbie, Mahmoud Amin Mohamed Elhassan, was also charged with making false statements to federal agents. He faces up to 48 years in prison under federal sentencing guidelines — more than twice the maximum of 20 years faced by the budding terrorist he transported.
The charges raise questions over the government’s use of informants, three of whom were involved in Elhassan’s case, at least one of them paid. They also underline questions over how involved Elhassan really was in a terrorism plot.
Federal prosecutors say that, before driving aspiring ISIS member Joseph Hassan Farrokh to the airport, Elhassan introduced Farrokh to people Elhassan believed would assist Farrokh in traveling to join Islamic State. Elhassan later lied to FBI agents about where Farrokh was going and how, the government claims.
Farrokh, 28, pled guilty to material support charges this March. Elhassan’s case, meanwhile, has been presented in the press as part of a straightforward prosecution of homegrown terrorism. But the terms of the criminal complaint against him cast doubts on the extent of his complicity.
According to the complaint, no one involved with the case was ever actually in touch with Islamic State, only with the three informants who helped snare Farrokh and implicate Elhassan. While Farrokh, 28, seems to have desired to travel abroad and fight with ISIS, making several belligerent statements to that effect, that goal did not appear to have appealed to Elhassan, who told Farrokh that Farrokh was an “extremist.”
Farrokh was initially reached by a government informant through Elhassan. The informant, a former acquaintance of Elhassan’s, began contacting Elhassan to tell him that he had a “message” for Farrokh, suggesting that he would be able to help him link up with others to facilitate Farrokh’s travel abroad. This man was a paid government informant who had begun cooperating to receive favorable treatment on separate criminal charges.
After connecting with Farrokh, the informant introduced him to another man, also a government informant, who later introduced him to yet another man, who was also government informant, all of whom assured Farrokh (against his openly expressed doubts) that they could be trusted and would help get him to Syria.
Farrokh spent a lot of time with the informants over the next several months, planning his travel and saying he hoped to later bring his family to Syria. At the suggestion of the informants, Farrokh even pledged an oath of allegiance to the leader of ISIS, despite expressing that he “did not understand why he needed to give it here.”
At the close of one conversation with the informants, he told them that he had been asking God to help him get to Syria for over a year, and that they had “made him very happy.”
On January 1st, the informant Elhassan had known previously contacted him. In a recorded conversation, Elhassan allegedly confessed that he knew that Farrokh was planning to leave the country to join ISIS, and that he knew Farrokh had lied to his family by telling them that he was going to Saudi Arabia to study. Elhassan also expressed his own anxieties about the situation, saying that “he didn’t want to see Farrokh go to prison” and adding that he had forwarded Farrokh an article about another government sting operation that had targeted a man in upstate New York.
Two weeks later, Farrokh packed his bags and prepared to depart the United States on a flight to Jordan. The car he took to reach the vicinity of Richmond International Airport was a taxi, driven by Elhassan. The two men spent roughly two hours together before Farrokh proceeded on his own to the airport terminal. Its not known what they discussed in this time.
After Farrokh checked-in at the airport, cleared security, and proceeded to his departure gate, he was arrested by FBI agents.
That same afternoon, FBI agents contacted Elhassan, who consented to be interviewed. According to the complaint, Elhassan told them that he believed Farrokh had been traveling within the United States for family reasons. When asked which airport Farrokh used, the complaint states that Elhassan “hesitated,” and then told them Farrokh had flown from a different airport than he actually had.
Elhassan was then arrested.
Even accepting the government at its word, the alleged plot seems to have involved Elhassan in a very marginal capacity, if at all, while the number of informants in the case exceeded the number of supposed conspirators. Elhassan now faces the prospect of a lengthy prison sentence, based primarily on Farrokh’s conversations with several government informants, and on Elhassan’s taxi drive with Farrokh to the vicinity of the airport.
In the days following Elhassan’s arrest, his lawyer at the time, Ashraf Nubani, said that the men had been the victims of public hysteria over ISIS, as well as the overzealous use of informants by the government. “I think it’s unfortunate that in the media and public discourse we allow these cases to be dictated by the position of the government,” he told WTVR. “They had three informants in this case that were looking for people to get in trouble.”
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When Hillary Clinton’s son-in-law sought funding for his new hedge fund in 2011, he found financial backing from one of the biggest names on Wall Street: Goldman Sachs chief executive Lloyd Blankfein.
The fund, called Eaglevale Partners, was founded by Chelsea Clinton’s husband, Marc Mezvinsky, and two of his partners. Blankfein not only personally invested in the fund, but allowed his association with it to be used in the fund’s marketing.
The investment did not turn out to be a savvy business decision. Earlier this month, Mezvinsky was forced to shutter one of the investment vehicles he launched under Eaglevale, called Eaglevale Hellenic Opportunity, after losing 90 percent of its money betting on the Greek recovery. The flagship Eaglevale fund has also lost money, according to the New York Times.
There has been minimal reporting on the Blankfein investment in Eaglevale Partners, which is a private fund that faces few disclosure requirements. At a campaign rally in downtown San Francisco on Thursday, I attempted to ask Hillary Clinton if she knew the amount that Blankfein invested in her son-in-law’s fund.
Watch the video:
After repeated attempts on the rope line, I asked the Clinton campaign traveling press secretary Nick Merrill, who said, “I don’t know, has it been reported?” and said he would get in touch with me over email. I sent the question but have not heard a response back.
The decision for Blankfein to invest in Hillary Clinton’s son-in-law’s company is just one of many ways Goldman Sachs has used its wealth to forge a tight bond with the Clinton family. The company paid Hillary Clinton $675,000 in personal speaking fees, paid Bill Clinton $1,550,000 in personal speaking fees, and donated between $250,000 and $500,000 to the Clinton Foundation. At a time when Goldman Sachs directly lobbied Hillary Clinton’s State Department, the company routinely partnered with the Clinton Foundation for events, even convening a donor meeting for the foundation at the Goldman Sachs headquarters in Manhattan.
Mezvinsky, who married Chelsea in 2010, previously worked at Goldman Sachs and started his fund along with two other former employees of the investment bank. Securities and Exchange Commission disclosures show that Eaglevale required new investors to put down a minimum of $2 million.
Clinton has dodged questions about her relationship with Goldman Sachs throughout the campaign. In January, we were the first to ask Clinton if she would release the transcripts of her paid speeches to Goldman Sachs. She responded by laughing and turning away. Since our question, other media outlets, including the New York Times editorial board, have called on Clinton to release the transcripts.
Clinton at times tried to conflate the money she received with campaign finance donations to Barack Obama — though the issues are separate; Obama never personally profited from paid speeches before running for president.
Clinton most recently said she would only release the transcripts if Bernie Sanders and her Republican opponents also reveal transcripts of their paid speeches. Disclosures show Sanders made $1,867.42 from two paid speeches and a television appearance last year, and donated the money to a nonprofit in Vermont that assists low-income families.
[This post has been updated with more information about Eaglevale.]
- Hillary Clinton Laughs When Asked if She Will Release Transcripts of Her Goldman Sachs Speeches
- Hillary Clinton Won’t Say if She’ll Release Transcripts of Goldman Sachs Speeches
- Hillary Clinton Again Declines to Disclose What She Told Big Banks in Her Paid Speeches
- Hillary Clinton Made More in 12 Speeches to Big Banks Than Most of Us Earn in a Lifetime
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While President Obama called for a “moral awakening” in Hiroshima and restated his ambition for a nuclear-weapon free future, back in Washington, Sen. Ed Markey, D-Mass., criticized him for moving forward with a costly plan to renovate the U.S. nuclear arsenal.
“The U.S. cannot preach nuclear temperance from a bar stool,” Markey wrote in a Boston Globe opinion piece.
Obama’s Hiroshima speech was reminiscent of the one he gave in Prague, only three months into his presidency, when he announced that he would “seek the peace and security of a world without nuclear weapons.”
In 2010, he negotiated a treaty that limited the U.S. and Russia to 1,550 deployed, strategic nuclear weapons each.
But that was as far as he would go. Obama is set to maintain the U.S. arsenal of 1,528 deployed warheads — almost half of which are on 30-minute alert — despite a 2013 White House assessment that he could safely reduce the U.S. arsenal by a third.
Obama is also pushing for a $1 trillion effort to replace the U.S.’s entire stock of long-range strike bombers, cruise missiles, nuclear submarines, and land-based missiles – which experts have said is sure to cause an arms race.
Markey attacked the modernization program on the Senate floor on Thursday. “The United States must take the lead,” Markey said, “instead of wasting billions of dollars on dangerous new nuclear weapons that do nothing to keep our nation safe.”
Markey also promoted a measure he introduced to delay the procurement of the new nuclear cruise missile, which he called a destabilizing and “dangerous new weapon.”
Erica Fein, nuclear policy expert with Women’s Action for New Directions, said it was courageous for Markey to “call out [his] party leader, something only a handful of other Democrats have been willing to do on this topic.”
Last month, Republicans on the House Armed Services committee lined up to kill a measure that would require the Congressional Budget Office to simply estimate the modernization’s cost over three decades.
But last week, Sen. John McCain, R-Ariz., broke ranks with his own party, calling the new generation of submarines “very, very, very expensive,” and questioning “do we even need the entire Triad given this situation,” at an event at the Brookings Institution.
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Wells Fargo’s sordid practice of steering minorities into exploitative mortgages burst into public view after the housing crash in 2008. But to a black business group the bank has partnered with — by donating nearly half a million dollars — it’s ancient history.
The U.S. Black Chambers (USBC), an organization dedicated to growing black business, has been collaborating on programs with Wells Fargo since 2014.
But a Wells Fargo-sponsored USBC luncheon held last week was a bridge too far for some observers.
The lunch discussion was titled: “From Black Panthers to Black Lives Matter, the Movement Continues.” One panelist was DeRay Mckesson, a former candidate for mayor in Baltimore and a high-profile Black Lives Matter activist. The Wells Fargo branding was prominent.
The event drew scorn from people incensed that black activism would be linked with Wells Fargo. Dwayne David Paul, a minister at St. Peter’s University in New Jersey, tweeted: “Liberal reformist politics in a nutshell. ‘Black liberation brought to you by orgs that prey upon Black folk.'”
Indiana-based writer Fredrik DeBoer drew attention to the event in a post on Facebook, writing, “this is why I drink.”
Mckesson, who spoke on the panel with Ron Busby, the president and CEO of U.S. Black Chambers, tweeted in response: “I didn’t make/approve this graphic & Wells Fargo didn’t sponsor/pay me. You want a conspiracy here & there is none.”
But the event’s organizers made no such effort to distance themselves from Wells Fargo. In interviews with The Intercept, two board members for the U.S. Black Chambers offered Wells Fargo, without prompting, as an example of a beneficial corporate partner.
And asked about the bank’s accusations of discriminatory lending, USBC board chairman Aubry Stone defended Wells Fargo. “Obviously, they’re trying to do the right thing,” he said. “There were a lot of people caught up in that scenario, some on purpose, some by accident.”
Wells Fargo has donated to USBC since at least 1999. Its donations have been used to give grants to black chambers of commerce, including the Heartland Black Chamber of Commerce in Kansas City, KS, and the Fresno Metro Black Chamber of Commerce in Fresno, CA. Funding has also been used to create webinars on getting loans and to support the Black Male Entrepreneur Institute.
To Stone, the bank is not entirely responsible for the predatory loans made to minority customers: “See, one of the things that is really important to understand and get the slant is that, when someone buys another company, you buy their liability and a lot of that happened in that period, so they inherited a lot of bad paper,” he said. Stone was referring to Wells Fargo’s merger with Northwest Corporation in 1998 and its acquisition of Wachovia in 2008. “So it wasn’t necessarily them doing it. They inherited a lot of bad paper.”
But it was Wells Fargo itself, not any of the banks it merged with, that came under fire in Baltimore, for instance, for targeting black communities, and referring to subprime lending as “ghetto loans” and to blacks as “mud people” — not Wachovia or Northwest.
Wells Fargo has paid millions of dollars in settlements over its practices that contributed to the U.S. housing crisis. Notably, in a 2012 Justice Department settlement, the bank agreed to pay $184 million in relief to borrowers the government alleged “were steered into subprime mortgages or who paid higher fees and rates than white borrowers because of their race or national origin.”
The Justice Department’s investigation found 34,000 cases where black and Hispanic customers were charged with higher fees and rates on mortgages than white customers with similar economic statuses, according to Reuters.
For Antwanye Ford, a U.S. Black Chambers board member and owner of a Washington, D.C.-based technology consulting firm, the partnership helps the organization make sure Wells Fargo keeps giving loans to black businesses. He said Well Fargo provides the organizations with statistics about how many black business owners are getting loans.
Kerwin Brown, another board member, said he does not recall seeing such statistics. Brown is the chairman of the board at the Black Chamber of Arizona, another organization that takes donations from Wells Fargo. He said that Wells Fargo’s discriminatory lending is not something he’s thought about recently. He also said he cannot remember the issue ever coming up at a board meeting. “We obviously have a very good relationship with our corporate sponsors,” he said.
“It’s interesting,” Ford said, “because we try to hold them accountable by saying, ‘We understand you’ve given us funding, but we want to see lending to black-owned businesses going out.’ I think for us, it’s important for them to talk about all of the lending. Have they been increasing lending? So they’ll let us know: ‘Hey, we’ve given this many businesses loans’ and we want to hear the statistics and they’ve been providing that to the board.”
Ford added: “We understand they’re getting better, but I think we want to hold them accountable for that.”
Wells Fargo has given $314,000 to USBC in the two years since the organizations became partners, according to a Wells Fargo spokesperson. That’s a big chunk of USBC’s annual budget, which was $1.3 million in 2014, according to filings with the IRS.
On the same day as USBC’s Black Lives Matter luncheon, Wells Fargo announced it was donating another $180,000 to the organization. A National Association for the Advancement of Colored People’s (NAACP) Twitter account praised the bank, posting: “thrilled to see our partners going further together!”
The NAACP filed lawsuits in 2007 against Wells Fargo and other banks accusing them of violating the Fair Housing and Equal Credit Opportunity Acts, as well as racial discrimination, but the organization dropped its claims against Wells Fargo in 2010. The next year, the two groups opened a financial literacy center together in Washington, D.C.
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In a unanimous ruling released Thursday, the California Supreme Court overturned the 1997 conviction of Bill Richards for the murder of his wife, Pamela, finding that false forensic testimony had impacted the outcome of his trial. “Needless to say, we are thrilled,” said Richards’s attorney Jan Stiglitz, a founder of the California Innocence Project, which has represented Richards for the last 15 years. “It’s been a long time coming.”
Richards’s controversial conviction for Pamela’s grisly 1993 murder has long been considered a clear case of wrongful conviction that was based on the discredited science of bite-mark analysis. Indeed, it took the state four attempts to convict Richards — two full trials ended in a hung jury and a third ended in a mistrial during jury selection — and prosecutors were successful only after putting on the stand a legendary forensic dentist who testified that Richards’s highly unique lower dentition was a match for a bite mark found on Pamela’s hand. The dentist, Norman “Skip” Sperber, told the jury that based on his 40-plus years in the field, he could say that out of 100 people, only “one or two or less” would have the same “unique feature” in their lower teeth.
In fact, however, Sperber was wrong. In 2008 he recanted his testimony, saying that he had cited statistics that lacked scientific support and never should have done so, “because it’s inappropriate to cite percentages or things resembling percentages unless there has been some prior scientific study” to back up the assertion. Based on Sperber’s recantation (and that of another dentist, Greg Golden, who testified for the defense, along with additional testimony about new DNA evidence that matched an unknown male), a district judge in 2009 said that the evidence now before the court pointed “unerringly” to Richards’s innocence.
The state appealed that decision and in 2012 the California Supreme Court agreed, knocking down the trial court’s ruling. The decision, which split the justices 4-3 in favor of upholding Richards’s conviction, was tortured: In a decision that was derided as the worst of the year by California Lawyer magazine, the court ruled that expert testimony was merely opinion and therefore could never be considered true or false.
In response, California lawmakers amended the state’s penal code with a measure known as the Bill Richards Bill. That law, which allowed Richards to again appeal his case, made clear that a conviction could be overturned based on an expert recantation or when the science underlying the original testimony had changed.
This time around, the entire court agreed that Sperber’s testimony was false, the bite-mark evidence was material to the case, and there was a reasonable probability that the evidence had impacted the outcome of Richards’s trial. The court noted that aside from the alleged bite mark, there was only circumstantial evidence to suggest Richards had killed his wife — and in its analysis the court seems to have concluded that none of it was particularly persuasive.
It was clear that Pamela had struggled violently with her attacker, for example, but Richards showed no sign of being injured on the night his wife was murdered. The court found that “unusual.” Investigators found no foreign footprints at the murder scene, but that was “not remarkable,” given the desert landscape of the couple’s rural San Bernardino County property. Police said they were immediately suspicious of Richards in part because he was able to identify for them a concrete block and a paving stone that were used to bludgeon his wife — but that too wasn’t exactly persuasive of guilt, since the bloody items were found near her body. “Accordingly, with the exception of the bite-mark evidence, the defense had a substantial response to much of the prosecution’s evidence against [Richards],” the court concluded. “Under these unique circumstances, it is reasonably probable that the false evidence presented by Dr. Sperber at petitioner’s 1997 jury trial affected the outcome of that proceeding.”
The ruling is not only a victory for Richards — though the state could still decide to retry him — but it is also a victory for lawyers who work to exonerate the wrongly convicted. The Richards case was the first test of California’s junk-science statute, which is only the second such law in the country (Texas’s came first). The court’s plain interpretation bodes well for the future of such laws, and for the wrongfully convicted, who face a particularly brutal legal climate in California.
Generally, in order to obtain relief, a wrongfully convicted inmate in California must present a state court with new evidence that “points unerringly to innocence” — an almost impossibly high standard. Not even DNA evidence from some unknown person collected from the murder weapons and from Pamela’s fingernails was enough to vacate Richards’s conviction. The new junk-science statute “makes for an easier path in any situation where the conviction was based on discredited science,” Stiglitz said in a brief interview shortly after the court’s ruling was released.
Experts say that Richards’s case is a prime example of the dangers of allowing junk science into evidence in the first place. Richards’s “wrongful conviction was preventable,” wrote Chris Fabricant, director of strategic litigation for the Innocence Project, in an email to The Intercept. “The bite-mark evidence should never have been introduced in the first instance.” Nationally, he said, Richards is the third bite-mark conviction overturned in the last eight months, “and demonstrates, once again, that any conviction resting on bite-mark evidence is inherently unreliable.”
Michael Bowers, a Ventura, California, lawyer and forensic dentist — and longtime critic of bite-mark evidence — noted that Richards’s case “emphasizes the dangers invalidated forensic examiners and bite-mark opinions create for innocent criminal defendants.” And he suspects that, in part, the case will serve as a potent example of why the “use of inadequately researched methods like bite marks” should cease in criminal prosecutions.
The California Supreme Court’s ruling kicks the case back to San Bernardino District Attorney Michael Ramos, who will now have 60 days to decide whether his office will seek to try Richards for the fifth time. A spokesperson for the office did not immediately reply to an email from The Intercept seeking comment. For now, Richards will be released from state prison and moved to the custody of local law enforcement in San Bernardino County pending the DA’s decision.
- How the Flawed Science of Bite-Mark Analysis Imprisoned a Man for Murder
- Junk Science on Trial in Bill Richards Bite-Mark Appeal
- Viva 4N6: In Las Vegas, Embattled Forensic Experts Respond to Scandals and Flawed Convictions
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A provision snuck into the still-secret text of the Senate’s annual intelligence authorization would give the FBI the ability to demand individuals’ email data and possibly web-surfing history from their service providers without a warrant and in complete secrecy.
If passed, the change would expand the reach of the FBI’s already highly controversial national security letters. The FBI is currently allowed to get certain types of information with NSLs — most commonly, information about the name, address, and call data associated with a phone number or details about a bank account.
Since a 2008 Justice Department legal opinion, the FBI has not been allowed to use NSLs to demand “electronic communication transactional records,” such as email subject lines and other metadata, or URLs visited.
The spy bill passed the Senate Intelligence Committee on Tuesday, with the provision in it. The lone no vote came from Sen. Ron Wyden, D-Ore., who wrote in a statement that one of the bill’s provisions “would allow any FBI field office to demand email records without a court order, a major expansion of federal surveillance powers.”
Wyden did not disclose exactly what the provision would allow, but his spokesperson suggested it might go beyond email records to things like web-surfing histories and other information about online behavior. “Senator Wyden is concerned it could be read that way,” Keith Chu said.
It’s unclear how or when the provision was added, although Sens. Richard Burr, R-N.C., — the committee’s chairman — and Tom Cotton, R-Ark., have both offered bills in the past that would address what the FBI calls a gap and privacy advocates consider a serious threat to civil liberties.
“At this point, it should go without saying that the information the FBI wants to include in the statue is extremely revealing — URLs, for example, may reveal the content of a website that users have visited, their location, and so on,” Andrew Crocker, staff attorney for the Electronic Frontier Foundation, wrote in an email to The Intercept.
“And it’s particularly sneaky because this bill is debated behind closed doors,” Robyn Greene, policy counsel at the Open Technology Institute, said in an interview.
In February, FBI Director James Comey testified during a Senate Intelligence Committee hearing on worldwide threats that the FBI’s inability to get email records with NSLs was a “typo” — and that fixing it was one of the FBI’s top legislative priorities.
Greene warned at the time: “Unless we push back against Comey now, before you know it, the long slow push for an [electronic communication transactional records] fix may just be unstoppable.”
The FBI used to think that it was, in fact, allowed to get email records with NSLs, and did so routinely until the Justice Department under George W. Bush told the bureau that it had interpreted its powers overly broadly.
Ever since, the FBI has tried to get that power and has been rejected, including during negotiations over the USA Freedom Act.
The FBI’s power to issue NSLs is actually derived from the Electronic Communications Privacy Act — a 1986 law that Congress is currently working to update to incorporate more protections for electronic communications — not fewer. The House unanimously passed the Email Privacy Act in late April, while the Senate is due to vote on its version this week.
Sen. John Cornyn, R-Texas, is expected to offer an amendment that would mirror the provision in the intelligence bill.
Privacy advocates warn that adding it to the broadly supported reform effort would backfire.
“If [the provision] is added to ECPA, it’ll kill the bill,” Gabe Rottman, deputy director of the Center for Democracy and Technology’s freedom, security, and technology project, wrote in an email to The Intercept. “If it passes independently, it’ll create a gaping loophole. Either way, it’s a big problem and a massive expansion of government surveillance authority.”
NSLs have a particularly controversial history. In 2008, Justice Department Inspector General Glenn Fine blasted the FBI for using NSLs supported by weak evidence and documentation to collect information on Americans, some of which “implicated the target’s First Amendment rights.”
“NSLs have a sordid history. They’ve been abused in a number of ways, including … targeting of journalists and … use to collect an essentially unbounded amount of information,” Crocker wrote.
One thing that makes them particularly easy to abuse is that recipients of NSLs are subject to a gag order that forbids them from revealing the letters’ existence to anyone, much less the public.
Update: May 26, 2016
This story has been updated to provide a comment from Wyden’s office.
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