Project Censored: The Top 25 Stories You Probably Missed This Year, 11-19

Think this year’s news reports have been wacky? Well, you haven’t even seen it all. Here’s more censored stories from Project Censored: The Top 25 Tories You Probably Missed This year.

Law Enforcement Surveillance of Phone Records

In cooperation with AT&T, US federal, state, and local law enforce-ment agencies have been secretly collecting telephone records since 1987 under a program known as Hemisphere, Aaron Mackey and Dave Maass reported for the Electronic Frontier Foundation (EFF). The Hemisphere database contains “trillions” of domestic and inter-national phone call records, and AT&T “adds roughly four billion phone records” each day, including calls from non-AT&T customers “that pass through the company’s switches.”

The call records for individuals include phone numbers dialed, calls received, and each call’s time, date, and length. Furthermore, Mackey and Maass noted, the collected data allows the Drug Enforce-ment Agency (DEA) and other law enforcement agencies to under-take “complicated traffic analysis” that can “dynamically map people’s social networks and physical locations.” Information gleaned from EFF’s Freedom of Information Act lawsuits suggests that officials col-lect and analyze this sensitive data “without a warrant or any judicial oversight,” possibly in breach of Fourth Amendment rights. Because Hemisphere permits law enforcement to map personal connections and social networks, Mackey and Maass reported, Hemisphere “also poses acute risks to the First Amendment rights of callers caught in the program’s dragnet.”

In secret documents obtained by EFF, police tout Hemisphere as a “Super Search Engine” and “Google on Steroids.” These descrip-tions, Mackey and Maass wrote, “confirm EFF’s worst fears that Hemisphere is a mass surveillance program that threatens core civil liberties.”

The Hemisphere program was unknown until 2013, when a pre-sentation about it was “inadvertently released to a privacy activist,” EFF reported. The government and law enforcement agencies have made it their mission to keep this program hidden from the public eye. Police using data collected through Hemisphere were instructed to insure that the program never appeared in the public record. As Mackey and Maass reported, after police obtained private information about someone by using Hemisphere, they would engage in a con-troversial practice that police call “parallel construction” to obtain the targeted data through traditional subpoenas.57

EFF filed Freedom of Information Act requests and sued federal and California law enforcement to access critical information about the Hemisphere surveillance program. The government’s secrecy, as well as discrepancies between how it responded to FOIA requests from EFF and the Electronic Privacy Information Center, highlight “the large power imbalance between the government and FOIA requesters seeking records,” Mackey and Maass reported. They also noted that the Hemisphere program “could not operate without AT&T’s full cooperation.”

In December 2016, Maass reported that a group of AT&T share-holders intended to use the company’s spring shareholder confer-ence to discuss “contradictions” between the Hemisphere program and AT&T’s stated commitment to privacy and civil liberties, and to demand greater transparency about the secret surveillance program.58

On the day that Donald Trump was sworn in as president, protests took place a short distance away. Metropolitan Police Department (MPD) officers in Washington, DC, arrested more than two hundred individuals, charging them under felony riot laws and seizing some of their cellphones. AlterNet’s Sarah Lazare and CityLab correspon-dent George Joseph reported that law enforcement was compelling Facebook, Google, and Apple to turn over data for at least some of the people arrested.

An email from Facebook’s “Law Enforcement Response Team” to a user explained that the user had ten days to produce court documents that would legally prevent Facebook from honoring a request from the District of Columbia US Attorney’s Office for information about their account. Mark Goldstone, a lawyer representing several of the defendants, was quoted as saying that they had received notices from both Apple and Facebook informing them of requests for information by law enforcement. One individual arrested and charged with rioting showed AlterNet a communication from Apple stating that they had received a request from legal authorities requesting data. This defendant told AlterNet, “My phone wasn’t present at the time of arrest and wasn’t taken.” The defendant’s attorney, Goldstone, said, “It’s an outrageous overreach by the government to try to data-mine personal property that wasn’t seized at the demonstration.”

Another person arrested, a journalist swept up in the mass arrest who had his phone taken, sent AlterNet a screenshot of his Google account, showing that, once his password-protected phone was in MPD custody, there had been almost immediate activity on his Google account. George Joseph of CityLab documented similar activity in the case of an unidentified medic who was also arrested. Joseph reported on January 24, 2017 that a screenshot of Google account activity sug-gested that “police began mining information from the captured cell-phones almost immediately after the arrests.”

Lazare reported that Google, Apple, and Facebook, as well as the MPD and the US Attorney’s Office, all declined to comment for Alter-Net’s story.

It was unclear what legal instrument law enforcement used to compel the three companies to turn over information on their cus-tomers. Different legal instruments grant various degrees of power. A National Security letter would require no court order while a 2703(d) court order allows access to metadata about communications and pos-sibly location. The information to be turned over could range from a relatively small, targeted cache, to everything a user has in the iCloud, photos taken, and messages and emails received and sent.

This story is critically important for several reasons. Mark Gold-stone has defended protesters in the Washington, DC, area for more than thirty years. He emphasized to AlterNet that he had never heard of a case in which mobile phones were seized at pro-tests, and was unaware of previous cases in which protestors faced felony riot charges. Unlike the usual misdemeanor charge, a felony riot charge carries a penalty of up to ten years in prison and fines up to $25,000. “We’re in a dangerous new world,” Goldstone said. Evi-dence that MPD officers accessed arrested individuals’ phones and Google accounts begs the question, did the police break the law? Spe-cifically, their actions during Trump’s inauguration seem to violate the Supreme Court’s ruling in Riley v. California. In that 2014 deci-sion, the Court ruled 9–0 that “officers must generally secure a war-rant before conducting such a search.” In combination, the threats of felony riot charges and cellphone seizures are likely to have a chilling effect on citizens exercising their First Amendment right to assembly.

Citizens’ First and Fourth Amendment rights are further threatened as local, state, and federal law enforcement are increasingly equipped with both cellphone interception devices and cellphone extraction devices. CityLab’s George Joseph has reported that the fifty largest police departments in the US have invested heavily in military-grade surveillance tools. One device, called a Dirtbox in honor of the com-pany that produces the devices, Digital Receiver Technology (DRT), can track and receive data from almost ten thousand phones at once.

In May 2017, the Guardian reported that, since Trump was elected, more than twenty states have proposed bills that would “crack down” on protests and demonstrations, in ways that UN experts have described as “criminalizing peaceful protests.” In March 2017, the Guardian reported that David Kaye and Maina Kiai, special rappor-teurs on the freedom of expression and freedom of peaceful assembly, respectively, from the UN’s Office of the High Commissioner for Human Rights, submitted a report to the US State Department, docu-menting the “worrying trend” in state legislation restricting the rights to freedom of peaceful assembly and freedom of expression in the US.59

Links:

US Quietly Established New “Anti-Propaganda” Center

On December 23, 2016, then-president Obama signed the 2017 National Defense Authorization Act (NDAA). As Sarah Lazare reported for AlterNet, the 2017 NDAA included a provision to create a new federal center with “sweeping” surveillance powers to counter foreign “propaganda and disinformation.” The Global Engagement Center, Lazare wrote, will be granted “broad and ill-defined powers to surveil the ‘populations most susceptible to propaganda,’ compile reporting and social media messaging critical of the U.S. government and disseminate pro-American propaganda.” The NDAA set aside
$160 million to be used in fighting propaganda and disinformation deemed unfavorable to US interests.

The NDAA stated, “The purpose of the Center shall be to lead, synchronize, and coordinate efforts of the Federal Government to rec-ognize, understand, expose, and counter foreign state and non-state propaganda and disinformation efforts aimed at undermining United States national security interests.” For example, the Center will be responsible for keeping track of “counterfactual narratives abroad that threaten the national security interests of the United States and United States allies and partner nations.” As Lazare noted, the impre-cise wording of the NDAA “could be interpreted as targeting informa-tion and communications critical of the U.S. government.”

The AlterNet report quoted Michael Macleod-Ball, chief of the ACLU’s Washington Legislative Office: “We have big concerns with the retention of that information and how it might be shared across agencies . . . Whether you’re talking about law enforcement or intelli-gence officials, having the government in the business of monitoring individual communications is very troubling to us.”

The NDAA specified that the president shall appoint the Global Engagement Center’s director. As Lazare noted, passage of the NDAA took place at the very end of 2016, with “little debate or notice,” despite its “broad implications.” Ohio Republican senator Rob Portman and Connecticut Democratic senator Chris Murphy initially proposed the Global Engagement Center in separate legislation.

The NDAA authorized the Global Engagement Center to provide “grants or contracts of financial support” to “civil society groups, media content providers, nongovernmental organizations, federally funded research and development centers, private companies, or aca-demic institutions.” These groups, Rick Sterling of Consortium News wrote, would be hired to identify and investigate print and online news sources deemed to be distributing propaganda and misinfor-mation directed at the US and its allies.

Identifying a set of “propaganda themes” that have “permeated” the coverage of Syria by Western media—including, he noted, the “generally progressive” radio and TV program Democracy Now!—Ster-ling wrote that, with establishment of the new Global Engagement Center, we should expect to see an “escalation” of the information war, including “even more aggressive and better-financed assaults” on the “few voices” that dare to challenge US media narratives on critical foreign policy issues.

In November 2016, the Washington Post ran a story that described the proposed program as being “aimed at foreign information sources, not ones based in the United States.”60 But independent coverage by other news sources called this claim into question. Writing for Naked Capitalism, Lambert Strether noted that ambiguity in the statute’s language could indeed allow action against US-based sources. Strether compared the language in the 2017 NDAA with the wording of the Intelligence Authorization Act for 2015. Where the latter featured precise wording—“including threats from for-eign countries and foreign non-state actors”—Section 1287(2) of the 2017 law applied to “foreign state and non-state propaganda and disinformation efforts.” Strether noted the difference, stressing the addition of the phrase “non-state propaganda.” He further noted that Snopes had attempted to debunk a “rumor” that this law could be enforced on US media, but had relied on a press release from Senator Rob Portman about the earlier proposed legislation which did not examine the actual language of the NDAA. Strether concluded that a “careful reading” of the 2017 NDAA provides “good reason to fear an impact on American independent or alternative media,” because they could be categorized as “non-state actors.”

MintPress News was among the only outlets that ran a story crit-ical of the original House bill, and the 2017 NDAA and its implica-tions for freedom of speech passed virtually without mention in the corporate press.

Links:
Claire Bernish, Propaganda Bill in Congress Could Give America Its Very Own Ministry of Truth,

Sarah Lazare, Obama Just Signed Off on a Shadowy New ‘Anti-Propaganda’ Center That will be Handed Over to Trump

Rick Sterling, The War Against Alternative Information

Lambert Strether, Does the ‘Countering Foreign Propaganda and Disinformation Act’ Apply to American Independent or Alternative Media?

Right-Wing Money Promotes Model Legislation to Restrict Free Speech on University Campuses

Right-wing conservatives are using money and power to influence public policy to suppress student dissent on US college and univer-sity campuses. The right-wing Goldwater Institute, which is funded by conservatives including Charles Koch and the Mercer family, has proposed model legislation that seeks to quell student dissent in favor of guest speakers who attempt to discredit climate change, oppose LGBTQ rights, and espouse hate speech, Alex Kotch reported for AlterNet in March 2017.

The stated intent of the Goldwater Institute’s proposed “Campus Free Speech Act” is to “uphold free-speech principles” and to ensure “the fullest degree . . . of free expression”—but, Kotch reported, the model legislation does not consider protest or dissent to be free speech. In fact, the model legislation stated that “protests and dem-onstrations that infringe upon on the rights of others to engage in or listen to expressive activity shall not be permitted and shall be sub-ject to sanction.”61 Students found to have infringed on the expressive rights of others more than one time would be “suspended for a min-imum of one year, or expelled,” according to the model legislation.

UnKoch My Campus is a campaign that seeks to “expose and expel undue donor influence” from institutions of higher education.62 Kotch’s AlterNet article quoted Ralph Wilson, a senior researcher with UnKoch My Campus: “These laws would create a chilling effect on stu-dents who reject the idea that white supremacists or climate deniers are simply representing an ‘opposing viewpoint’ that should be toler-ated, and who are rightfully relying on their first amendment freedoms to stop the rise of fascism and prevent global climate catastrophe.”

The Goldwater Institute’s “Campus Free Speech Act” has been adapted in proposed legislation in many states. For example, states including Illinois, North Dakota, Virginia, and Tennessee have pro-posed bills that crack down on free speech with some elements of the model legislation. Additional states, including Colorado, Florida, and Utah, are also proposing so-called “campus free speech” bills.

The text of the proposed legislation was written by Stanley Kurtz, James Manley, and Jonathan Butcher. Kurtz is a fellow at the Ethics and Public Policy Center, a conservative think tank that applies “the Judeo-Christian moral tradition to critical issues of public policy.” The Ethics and Public Policy Center, Kotch reported, has received “millions of dollars in donations” from the foundations of conservative families, as well as “hundreds of thousands” from Donors Trust and Donors Capital Fund, which serve as vehicles for wealthy right-wing donors. Between 2006 and 2015, the two groups received more than $9 million in contributions from Charles and David Koch. The Gold-water Institute’s senior attorney, Manley, previously worked for the Mountain States Legal Foundation, which also received significant donations from the Donors Trust and Donors Capital Fund. Butcher, the Institute’s education director, worked at the conservative Heritage Foundation—which has been heavily funded by the Kochs—from 2002 to 2006.

Links:
Alex Kotch, Right-Wing Billionaires are Funding a Cynical Plot to Destroy Dissent and Protest in Colleges Across the U.S.

Judges across US Using Racially Biased Software to Assess Defen-dants’ Risk of Committing Future Crimes

In 2014, then–US attorney general Eric Holder warned that so-called “risk assessments” might be injecting bias into the nation’s judicial system. As ProPublica reported in May 2016, courtrooms across the country use algorithmically-generated scores, known as risk assessments, to rate a defendant’s risk of future crime and, in many states—including Arizona, Colorado, Delaware, Kentucky, Lou-isiana, Oklahoma, Virginia, Washington, and Wisconsin—to unoffi-cially inform judges’ sentencing decisions. The Justice Department’s National Institute of Corrections now encourages the use of such assessments at every stage of the criminal justice process.

Although Holder called in 2014 for the US Sentencing Commis-sion to study the use of risk scores because they might “exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system,” the Sentencing Commission never did so. Julia Angwin, Jeff Larson, Surya Mattu, and Lauren Kirch-ner’s article reported the findings of an effort by ProPublica to assess Holder’s concern. As they wrote, ProPublica “obtained the risk scores assigned to more than 7,000 people arrested in Broward County, Florida, in 2013 and 2014 and checked to see how many were charged with new crimes over the next two years.” The ProPublica study was specifically intended to assess whether an algorithm known as COMPAS, or Correctional Offender Management Profiling for Alter-native Sanctions, produced accurate prediction results through its assessment of “criminogenic needs” that relate to the major theories of criminality, including “criminal personality,” “social isolation,” “substance abuse,” and “residence/stability.”

Judges across the country are provided with risk ratings based on the COMPAS algorithm or comparable software. Broward County, Florida—the focus of ProPublica’s study—does not use risk assess-ments in sentencing, but it does use them in pretrial hearings, as part of its efforts to address jail overcrowding. As ProPublica reported, judges in Broward County use risk scores to determine which defen-dants are sufficiently low risk to be released on bail pending their trials.

Based on ProPublica’s analysis of the Broward County data, Angwin, Larson, Mattu, and Kirchner reported that the risk scores produced by the algorithm “proved remarkably unreliable” in fore-casting violent crime: “Only 20 percent of the people predicted to commit violent crimes actually went on to do so.” In fact, the algo-rithm was only “somewhat more accurate” than a coin toss.

The study also found significant racial disparities, as Holder had feared. “The formula was particularly likely to falsely flag black defen-dants as future criminals, wrongly labeling them this way at almost twice the rate as white defendants,” ProPublica reported.

Defendants’ prior crimes or the types of crime for which they were arrested do not explain this disparity. After running a statistical test that controlled for the effects of criminal history, recidivism, age, and gender, black defendants were still 77 percent more likely to be iden-tified as at higher risk of committing a future violent crime and 45 percent more likely to be predicted to commit a future crime of any kind, compared with their white counterparts.

Northpointe, the for-profit company that created COMPAS, dis-puted ProPublica’s analysis. However, as ProPublica noted, North-pointe deems its algorithm to be proprietary, so the company will not publicly disclose the calculations that COMPAS uses to determine defendants’ risk scores—making it impossible for either defendants or the public “to see what might be driving the disparity.” In practice, this means that defendants rarely have opportunities to challenge their assessments.

As ProPublica reported, the increasing use of risk scores is contro-versial, and the topic has garnered some previous independent news media coverage, including 2015 reports by the Associated Press, The Marshall Project, and FiveThirtyEight.63

Julia Angwin, Jeff Larson, Surya Mattu, and Lauren Kirchner, “Machine Bias,”

Jeff Larson, Surya Mattu, Lauren Kirchner, and Julia Angwin “How We Analyzed the COMPAS Recidivism Algorithm

Shell Understood Climate Change as Early as 1991—and Ignored It

In 1991, Shell Oil Company produced and distributed a twenty-eight-minute documentary titled Climate of Concern. Asserting that climate change was taking place “at a rate faster than at any time since the end of the ice age—change too fast perhaps for life to adapt, without severe dislocation,” the film addressed potentially drastic conse-quences of climate change including extreme weather, flooding, fam-ines, and climate refugees. While commenting that global warming was “not yet certain,” the Shell film stated, “many think that to wait for final proof would be irresponsible.” The film’s narrator explained
that a “uniquely broad consensus of scientists” had issued a “serious warning” in a report to the United Nations at the end of 1990.64

Recently Climate of Concern resurfaced, after Jelmer Mommers obtained a copy of it, and he and Damian Carrington posted it online as part of a joint investigative report for De Correspondent and the Guardian. As Mommers and Carrington documented, instead of trying to combat climate change as the company’s own documentary urged, Shell’s actions since 1991 have often contributed to increasing the negative impact of climate change.

A former geologist who had researched shale deposits with funding from Shell and BP, Jeremy Leggett, told Mommers and Carrington, “The film shows that Shell understood that the threat was dire, poten-tially existential for civilization, more than a quarter of a century ago.” Mommers and Carrington also quoted HSBC’s former global head of oil and gas, Paul Spedding (now at the think tank Carbon Tracker), who noted that “Shell’s oil production is destined to become heavier, higher cost, and higher carbon, hardly a profile that fits the outlook described in Shell’s video.”

Shell’s documentary addressed the need for action on climate change. When asking how societies could reduce carbon emissions, the documentary identified nuclear, hydroelectric, solar, and wind power as alternative energy options. However, as Mommers and Car-rington reported, Shell has consistently undermined the production of renewable energy for its own financial gain. One recent example was documented in an April 2015 Guardian article, which revealed that, in order to ensure that its gas investments would remain lucra-tive, Shell successfully lobbied to “undermine European renewable energy targets ahead of a key agreement on emissions cuts” reached by the EU in 2014.65

Furthermore, Mommers and Carrington wrote, until 2015 Shell was a member of the American Legislative Exchange Council (ALEC), a lobby group that denies climate change, and it remains a member of the Business Roundtable and the American Petroleum Institute, “which both fought against Barack Obama’s Clean Power Plan.” According to Shell officials, it has remained a member of groups that hold different views on climate action to “influence” them, but Mommers and Carrington quoted Thomas O’Neill, from the group Influence Map, which tracks lobbying, who told them that the “trade associations and industry groups are there to say things the company cannot or does not want to say. It’s deliberately that way.”

Mommers and Carrington also presented a “confidential” Shell report, written in 1986, that warned about the possibility of “fast and dramatic” climate changes that “would impact on the human envi-ronment, future living standards and food supplies, and could have major social, economic, and political consequences.”

The revelation that as early as 1986 Shell Oil Company had a sophis-ticated scientific understanding of climate change and its potentially disastrous consequences, as documented by Mommers and Carrington, echoes a July 2015 report in the Guardian. That report featured internal company emails revealing that ExxonMobil knew of climate change “as early as 1981 . . . seven years before it became a public issue.” Despite this knowledge, the Guardian reported, ExxonMobil “spent millions over the next 27 years to promote climate [change] denial.”66

Links:
Helmer Mommers, “Shell Made a Film about Climate Change in 1991

Jelmer Mommers and Damian Carrington, “If Shell Knew Climate Change was Dire 25 Years Ago, Why Still Business as Usual Today?

Damian Carrington and Jelmer Mommers, “Shell’s 1991 Warning: Climate Changing ‘at Faster Rate Than at Any Time since End of Ice Age

Damian Carrington and Jelmer Mommers, ‘Shell Knew’: Oil Giant’s 1991 Film Warned of Cli-mate Change Danger,” Guardian, February 28, 2017

“Resilient” Indian Communities Struggle to Cope with Impacts of Climate Change

The Sundarbans are a vast mangrove delta that connects India and Bangladesh along the coast of the Bay of Bengal. In Bengali, Sun-darban means “beautiful forest,” and the region is designated as a UNESCO World Heritage Site. However, as Anuradha Sengupta reported for YES! Magazine, residents of islands in the Sundarbans, such as Ghoramara, are “struggling to cope” with rising seas, erratic weather patterns, severe floods, heavy rainfall, and intense cyclones that are the consequences of global climate change. The Intergovern-mental Panel on Climate Change (IPCC) has warned that rising sea levels mean that areas like the Sundarbans will, in Sengupta’s words, “bear the brunt” of climate change, with submerged lands, farmlands damaged by increasingly saline soils, homes swept away, livelihoods destroyed, and families broken apart. “The effects of global warming,” Sengupta reported, “will be most severe on those who did the least to contribute to it, and who can least afford measures to adapt or save themselves.”

Residents of the Sundarbans have typically made a living by reli-ance upon natural resources, deriving sustenance from small-scale farming, fishing, and honey gathering. However, with climate change, rising water levels have reduced the amount of arable land and fre-quent intrusion of saltwater has reduced the quality of remaining farmlands, while extreme weather conditions mean fewer flowers to sustain honey harvests.

Nevertheless, Sengupta reported, the people of the Sundarbans are “resilient.” While many of the region’s men now leave for most of the year to work for wages in urban areas on the mainland, the women have responded by planting hardy native crops, adopting inte-grated farming methods, and banking seeds. Many have switched from “modern high-yield” rice seeds to native grains that are saline-resistant. A West Bengal nongovernmental development organiza-tion, the Development Research Communication and Services Centre (DRCSC), provides support to families adopting sustainable agricul-tural practices in the face of climate change.

However, as Sengupta acknowledged, the number of those who adopt sustainable methods is “still quite low.” Aditya Ghosh, who cov-ered the Sundarbans as a journalist between 2000 and 2004 and is now a research associate with the University of Heidelberg’s South Asia Institute, told YES! Magazine, “Years of ineffective, unplanned, and chaotic governance have made the Sundarbans a soft target for any abrupt environmental change.” In his research, Ghosh found eighty-two reported incidents of flooding, affecting more than five hundred households, between 2010 and 2015. His research also indi-cated that flooding and other impacts of climate change have led to a six-fold increase in marginal labor—people who work less than six months per year—from 1991 to 2012. Workers who previously had employment security have “gradually slipped into marginality,” he told YES! Magazine.

Several islands in the Sundarbans have already been completely submerged by rising sea levels. When the island of Lohachara went under in 2006, it displaced seven thousand people. As Sengupta and other journalists have reported, if scientific predictions about rising sea levels prove accurate, in fifteen to twenty-five years as many as thirteen million residents of the Sundarbans would be left home-less, “forcing a massive exodus of climate refugees.” Sengupta’s YES! Magazine report was distinctive in emphasizing the ways that resi-dents of the Sundarbans—and especially the region’s women—are “rebuilding their lives” in the face of climate change, as well as the positive role that NGOs, such as the DRCSC, could play in helping to minimize a looming humanitarian disaster in the Bay of Bengal.

LINKS:
Anuradha Sengupta, Tired of Running from the River: Adapting to Climate Change on India’s Disappearing Islands

Young Plaintiffs Invoke Constitutional Grounds for Climate Protection

In September 2015, twenty-one plaintiffs, aged eight to nineteen, brought a lawsuit against the federal government and the fossil fuel industry to the US Federal District Court in Eugene, Oregon. The case, Juliana v. United States, argued that the federal government and the fossil fuel industry have knowingly endangered the plaintiffs by promoting the burning of fossil fuels, and that this violates their constitutional and public trust rights. Their complaint said that the defendants “deliberately allow[ed] atmospheric CO2 concentrations to escalate to levels unprecedented in human history.” The lead counsel for the plaintiffs in the case, Julia Olson, is executive director of Our Children’s Trust, a Eugene-based group that advocates for “legally-binding, science-based climate recovery policies.”67

In April 2016, US Magistrate Judge Thomas Coffin denied a motion to dismiss the case, ruling in favor of the plaintiffs’ charge that the fed-eral government violates constitutional and public trust rights by its ongoing promotion of fossil fuels that destabilize the earth’s climate. In a report published by Forbes, James Conca wrote that the lawsuit was the first of its kind, examining whether the causes of climate change violate the US Constitution. By denying a motion to dismiss, the court found that the federal government is also subject to the public trust doctrine, Conca reported. Public trust doctrine, he explained, “asserts that the government is a trustee of the natural resources that we depend on for life, liberty and the pursuit of happiness.”

In his ruling, Justice Coffin wrote, “The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society . . . [T]he intractability of the debates before Congress and state legislatures and the alleged valuing of short-term economic interest despite the cost to human life, neces-sitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government.”

As Conca reported, the decision “upheld the youth Plaintiffs’ claims in the Fifth and Ninth Amendments ‘by denying them protec-tions afforded to previous generations and by favoring the short-term economic interests of certain citizens.’” In January 2016, three fossil fuel industry trade associations, representing nearly all of the world’s largest fossil fuel companies, had called the case “a direct, substan-tial threat to our businesses.” According to sixteen-year-old plaintiff Victoria Barrett, “Our generation will continue to be a force for the world.”

In November 2016, US District Court Judge Ann Aiken affirmed Coffin’s April ruling, which prepared the way for Juliana v. United States to proceed to trial. As Gabriela Steier reported in JURIST, Judge Aiken’s opinion stated, “This is no ordinary lawsuit.” Judge Aiken’s opinion explained, “This action is of a different order than the typ-ical environmental case. It alleges that defendants’ actions and inac-tions—whether or not they violate any specific statutory duty—have so profoundly damaged our home planet that they threaten plaintiffs’ fundamental constitutional rights to life and liberty.”

In February 2017, the plaintiffs updated their case to list President Donald Trump as a defendant, replacing former President Barack Obama. A month later, the Trump administration filed a motion to delay trial preparation.68 As Censored 2018 goes to print, the plaintiffs are pursuing an effort to depose Rex Tillerson, the former ExxonMobil CEO and Trump’s secretary of state, and the country’s most powerful fossil fuel lobbies are seeking the judge’s permission to withdraw from the lawsuit.69 The trial might begin as early as fall of 2017.

As Juliana v. United States has progressed to its trial phase, the case has received increasing corporate media coverage. But it is important to note that initially corporate media ignored or marginalized the law-suit. For instance, in a rare instance of corporate news coverage from 2015, MSNBC described the lawsuit as an “unusual case” that is “long on symbolism” but “unlikely” to win, while noting the risks associ-ated with any decision that might diminish the fossil fuel industry’s interests.70 In November 2016, CBS News and Fox News published stories, based on an Associated Press report, that made passing refer-ence to Juliana v. United States (although not by name) and focused, instead, on a related lawsuit, involving some of the same plaintiffs, in the Washington state judicial system.

Links:
James Conca, Federal Court Rules on Climate Change in Favor of Today’s Children

Michelle Nijhuis, The Teen-Agers Suing Over Climate Change,

Gabriela Steier, No Ordinary Lawsuit: Juliana v. United States is a Landmark Precedent for Cli-mate Change Legislation,

Zahra Hirji, Children’s Climate Lawsuit Against U.S. Adds Trump as Defendant

Ciara O’Rourke, The 11-Year-Old Suing Trump over Climate Change

Rise in Number of Transgender People Murdered

Proposing a “comprehensive look” at transgender homicides since 2010, Mic’s Meredith Talusan investigated in December 2016 “how and why trans lives are not counted and what we can do to end the violence.” The Mic report began with a revealing comparison of homi-cide figures: Among the general US population, one in 19,000 per-sons is murdered every year; for young adults, aged 15–34, the figure is one in 12,000. For black trans women in the same age range, the rate is one in 2,600. In 2015 FBI homicide data documented 15,696 murders. As Mic reported, “If in 2015 all Americans had the same risk of murder as young black trans women, there would have been 120,087 murders.” Put another way, although the total number of transgender homicides per year may seem small, it “represents a rate of violence that far exceeds that of the general population.”

And, in fact, as Talusan’s report went on to document, due to underreporting and misidentification (many trans murder victims are “misgendered” by officials and news reports, and even by imme-diate family members who sometimes reject a relative’s trans iden-tity), the actual trans murder rate is likely “much higher.” The result of the Mic investigation is what Talusan described as a “comprehensive database” of transgender Americans who have died by homicide since 2010.72 2010 was the first year that the National Coalition of Anti-Violence Programs (NCAVP), an organization that tracks homi-cides in the transgender community, began its formal count.

As of late June 2017, GLAAD had documented fourteen trans-gender people killed in 2017, all of whom, its website noted, were transgender women of color.73 Between 2010 and 2016, Talusan sum-marized, at least 111 transgender and gender-nonconforming Ameri-cans were murdered “because of their gender identity.” Under the LGBTQ umbrella, she elaborated, no group “faces more violence” than transgender people, who accounted for 67 percent of the hate-related homicides against queer people in 2015, according to the NCAVP. The US Census does not track transgender people; and, although the FBI added gender identity to its records of hate crimes in 2014, it does not track gender identity along with its homicide statistics.

“At every stage,” Shannon Minter, a transgender attorney and legal director of the National Center for Lesbian Rights, told Mic, “there are bias-based obstacles” that diminish the chances that a trans per-son’s death by murder will be accounted for publicly, “and those levels reinforce each other.” People hesitate to even go to the police in some cases. Official records—from police reports and hospital records, to death certificates and obituaries—typically lack the means to represent transgender people. And even when police or coroners correctly identify a murder victim as transgender, law enforcement defer to families on releasing that information. A sergeant for the Metropolitan Police Department (MPD) in Washington, DC, who is a transgender woman and the MPD’s LGBT liaison, told Mic, “I would never out anyone as trans during life or in their deaths, not coming from a police department.” Media reporting on transgender homi-cides is improving, said the NCAVP’s communications director, Sue Yacka, but “local press still has a long way to go.” Yacka routinely con-tacts news organizations to attempt to get them to use transgender victims’ names and genders. Similarly, in its report, GLAAD called on news media to “report on the brutal violence perpetrated against transgender people, particularly transgender women of color” and to “respect and use the lived identity, name, and pronoun of the victim.” But fundamentally, Talusan wrote, tracking transgender homicides is problematic because “gender identity can be difficult to pin down . . .

Trans people don’t look or act just one way.”

Cases of homicide of transgender people are not only under-counted, they are also less likely to be solved and prosecuted. Mic reported that there have been “no arrests” in connection with 39 per-cent of transgender murders from 2010 to 2015. Furthermore, when perpetrators are found, the legal outcomes of those cases show “clear disparities” between victims who are black trans women and those who are not. People who kill black trans women and femmes are usu-ally convicted of lesser charges—such as manslaughter or assault— than those who kill people of other trans identities, Mic found. In the time span studied, no case of trans homicide had resulted in a hate crime conviction, according to the report.

Despite these bleak circumstances, Talusan reported that recent activism focused on transgender murders might be having a posi-tive effect. Juries are still hesitant to convict suspects of first-degree murder for killing a transgender person, but since 2010 just one case has resulted in a jury returning a not-guilty verdict. This, Talusan wrote, may encourage future prosecutors “to be more aggressive in pursuing murder convictions rather than settling for plea bargains.” Similarly, due to public pressure, police departments are responding to transgender-related violence with “greater awareness.” Perhaps most significantly, improved economic conditions, which would keep transgender people from being “forced to make choices that could endanger their lives,” will be fundamental to protecting them in the future. As Talusan reported, “a startling 34% of black trans people live in extreme poverty.”

LINKS:
Alex Schmider, GLAAD Calls for Increased and Accurate Media Coverage of Transgender Mur-ders

Meredith Talusan, Documenting Trans Homicides

Sandy E. James, Jody L. Herman, Susan Rankin, et al., The Report of the 2015 U.S. Transgender Survey,

Trudy Ring, Virginia Woman is 27th Trans Person Murdered in 2016,” Advocate, January 6, 2017, .

Inmates and Activists Protest Chemical Weapons in US Prisons and Jails

Daniel Moattar, writing for the Nation, and Sarah Lazare, a journalist at AlterNet, reported how chemical weapons, including several types of tear gas, are being used against prisoners in the United States, despite the fact that the international Chemical Weapons Convention of 1997 bans their use in warfare. Despite the arms control treaty that now binds nearly two hundred nations, Lazare reported, “in prisons and jails across the United States, far from any conventional battle-field or public scrutiny, tear gas and other chemical weapons are rou-tinely used against people held captive in enclosed spaces, including solitary confinement.” Tear gas is known to cause skin and respira-tory irritation, intense pain, blindness, and, in severe cases, death.

Since 2013, the War Resisters League has been documenting the use of tear gas in prisons.74 As Moattar reported, letters from inmates sent to the War Resisters League document the use of tear gas and pepper spray against inmates—in men’s and women’s prisons, including maximum- and medium-security facilities—in eigh-teen states across the country. Lazare summarized inmates’ reports of “burns, scars and memories of agony and suffocation.” Some reported being denied treatment or even being allowed to rinse their eyes after being subject to tear gas.

As a result of inmates’ letters, activists have taken action. Seeking to end the use of tear gas in US prisons and jails, activists argue that “the deployment of chemical weapons of any kind against imprisoned people constitutes militarization and torture,” Lazare reported. In early January 2017, shortly before the inauguration of Donald Trump, representatives of the War Resisters League, Witness Against Torture, Black Movement Law Project, and other organizations brought their demands to the Department of Justice, where they held a press con-ference and delivered a petition with over 13,000 signatures to then– deputy attorney general Sally Q. Yates.

Tear gases and pepper sprays are lucrative commodities for those who produce them. The War Resisters League also documented com-panies—including Sabre, Combined Tactical Systems (CTS), Sage, and Safariland—that sell tear gas to prisons in forms “designed spe-cifically for ‘enclosed spaces.’” As Moattar documented in his article, through private companies such as Sabre and Safariland, the US “remains the single largest manufacturer” of CS, one of the two compounds used in most forms of tear gas. “Producers of tear gas and pepper spray worry more about finding new markets than navigating the law,” Moattar wrote. “Even if existing restrictions on the use of force were enforced, the direct use of pain-inducing chemicals on prisoners, including inmates restrained or in solitary, is still mini-mally regulated and broadly legal.”

There is little corporate news coverage on chemical weapons being used against inmates in US prisons and jails. What coverage there is tends to frame incidents as local and isolated, as in a September 2016 article in the Miami Herald which focused on the case of a twenty-seven-year-old inmate, Randall Jordan-Aparo, who died at Franklin Correctional Institution in 2010 after corrections officers allegedly tortured, gassed, and beat him.75

LINKS:
Daniel Moattar, Prisons are Using Military-Grade Tear Gas to Punish People

Sarah Lazare, The Scandal of Chemical Weapons in U.S. Prisons