The Obama administration recommended on Thursday that private companies begin searching for oil and gas reserves off the Atlantic Coast, an area that has been closed to drilling for decades. More than 3 billion barrels of recoverable oil and 312 trillion cubic feet of natural gas may lie in the area, which extends from Delaware to Cape Canaveral, Florida.
Oil and gas companies have lobbied administrations since the 1980s to lease ocean tracts in the Atlantic, to little effect. The release of an environmental impact study by the Interior Department that concluded undersea seismic testing could commence is a step toward doing so, although it can’t happen before 2017; the current five-year plan for the Outer Continental Shelf keeps the Atlantic out of bounds. Oil industry groups, along with a coalition of governors from coastal states, are hoping to influence the next five-year plan as it develops, a staffer who has worked on offshore issues for Alaskan governor Sean Parnell told me on background. Practically, they’re hoping to find new reserves: nine companies have already applied for surveying permits, according to The New York Times.
“It would be really ironic if the Obama administration, which supposedly understands climate change and thus the need to keep fossil fuels in the ground, was the one to open these areas,” said Steve Kretzman, the executive director of Oil Change International. The president previously green-lighted exploratory activity in the Atlantic three years ago, but scuttled the plans after the Deepwater Horizon exploded in the Gulf of Mexico in April of 2010.
The prospect of new activity in the Atlantic, even if years or decades away, raises a question that environmentalists have found themselves asking often lately: How does the administration reconcile its commitment to fighting climate change with its long standing support for expanded oil production? Obama’s approach to climate is largely focused on reducing demand for fossil fuels, by promoting investment in renewables and tightening emissions standards for power plants and motor vehicles. (If Congress could ever put a price on carbon, that also would affect demand.) The implicit assumption of Obama’s “all of the above” energy strategy is that policies intended to discourage consumption will be effective even if fossil fuels become more readily available.
By this logic, the United States might as well reap the profits from our fossil fuel reserves so long as demand exists—until people don’t need oil and coal, someone will continue to supply it. Some of the profits from domestic oil production could even help power the transition to cleaner energy if they were funneled into a research and development fund for renewables.
So why have climate hawks focused lately on cutting off the flow of carbon-intensive fuels? For example, the major environmental fight right now, over Keystone XL, is about keeping tar sands oil in the ground. Part of the answer is that policymaking and activism have different goals, as David Roberts has argued. Even if the most effective practical way to lower carbon emissions is to stop consuming so many fossil fuels, effective activism may depend on picking different fights.
Furthermore, ramping up production, even while we know 80 percent of known reserves (meaning, not including whatever is off the coast of the Atlantic, since those are unproven) have to stay in the ground if we’re serious about staying below two degrees Celsius, has political consequences that directly undermine the demand-side policies the administration is counting on. After I spoke with Kretzman he sent me a longer response to the question of why supply matters, and his argument is worth reading in full:
It’s not either/or. We have to work on both the supply and demand sides of the oil and gas equation. As the supply of oil and gas goes up, the cost the market perceives for it is going down, thus encouraging more consumption—which is exactly the signal the climate demands that we do not send. If we had a perfect market for energy, working on the demand side alone might do it. But we’re not remotely close to that. Oil is controlled globally by a cartel, heavily subsidized by taxpayers around the world, and insulated from paying various substantial costs such as health, pollution clean-up, military support, and of course the social cost of carbon.
Importantly, stopping greater supply is the best way to stand in the way of Big Oil’s power. You give them access to more oil and gas, they’ll make more profits, and spend more money both looking for even more oil and gas as well as bribing politicians and throwing armies of lawyers at regulations. [Emphasis added]
These industries are based on, and profit from, finding more and more of something that science says we have more than enough of. Every additional field is a step in the wrong direction. It has to start stopping somewhere.
What’s particularly important here is the connection drawn between increased production and the political power of the petrochemical industry. This is an industry that has every interest in blocking climate change legislation; to that end, it has poured millions into shoddy research in an attempt to discredit climate science, and its political donations prop up the lawmakers who trot out the same hack work to justify obstructing legislative action. It’s true that Obama can’t do anything unilaterally that truly meets the scale of the crisis. In order for comprehensive policies aimed at cutting consumption to pass, we need a different political climate, one that’s not dominated by fossil fuel interests. Giving those interests greater access to public resources is a poor way to change the status quo.
Read Next: Zoe Carpenter discusses health concerns linked to the proposed Keystone XL pipeline.
It’s hard to pinpoint the pinnacle of Republican depravity, but GOP senators came close Thursday afternoon when they blocked a bill extending healthcare, education and job training to hundreds of thousands of veterans, largely because they were unable to use the bill as a vehicle for new sanctions on Iran.
“Today, the Senate had a chance to put aside partisan politics and do what was right for the men and women who have sacrificed so much while wearing our nation’s uniform,” said Daniel Dellinger, commander of the National Legion, a prominent veterans organization with a conservative reputation. “I don’t know how anyone who voted ‘no’ today can look a veteran in the eye and justify that vote.”
Republicans used a procedural move to kill the legislation, which was the largest veterans bill in decades and had the support of all of the major veterans groups. The bill would have funded twenty-seven new clinics and medical centers, and made VA healthcare more accessible for veterans without service-related injuries. It would have strengthened dental, chiropractic, fertility and sexual trauma care. It would have extended a job training program and given veterans better access to higher education by making more of them eligible for in-state tuition. Spouses of deceased service members and families caring for wounded veterans would have received better support.
Unsurprisingly, Republicans said the $21 billion package was too expensive. “This bill creates new veterans’ programs and it’s not paid for—it’s all borrowed money,” Senator Jeff Sessions said before raising a budget point of order that effectively killed the legislation by requiring sixty votes to proceed. Only two Republicans, Dean Heller of Nevada and Jerry Moran of Kansas, voted with the Democrats, leaving the motion to waive the point of order a few votes shy of passage.
“If you can’t afford to take care of your veterans, then don’t go to war,” Senator Bernie Sanders, the chairman of the Committee on Veterans Affairs, said on CNN shortly before the vote. Sanders proposed paying for the bill with savings from the drawdown in Iraq and Afghanistan; the expenditures amounted to less than 2 percent of those savings, and would have directly benefitted the soldiers who fought those wars. (Which, incidentally, themselves added $2 trillion to the debt.) Furthermore, according to an updated score from the Congressional Budget Office, the bill would actually have decreased the deficit by $1.34 billion over the next decade.
“I think we should be very, very clear that the cost of war does not end once the last shots are fired and the last battles are fought. When members of the military lose arms, legs, eyesight, come back with PTSD or TBI, after fighting in wars that Congress authorizes, we have a moral obligation to make sure that those veterans receive all of the benefits that they have earned and deserve,” Sanders said on the floor.
Besides cost, Republicans had an even pettier reason for opposing the bill: they were furious that they weren’t able to tack new Iran sanctions onto it. Democrats have backed away from the issue, and Republicans inserted the sanctions language in their version of the veterans legislation in an attempt to keep it alive. Veterans groups sharply criticized Republicans on Wednesday for such a political move. “Iran is a serious issue that Congress needs to address, but it cannot be tied to S. 1982, which is extremely important as our nation prepares to welcome millions of U.S. military servicemen and women home from war,” Dellinger said.
Sanders promised to keep fighting for a comprehensive veterans package, and said he would work to round up the handful of Republican votes needed to pass the legislation.
The media has already declared the veterans bill a “victim of election year gridlock.” But let’s be clear: the bill was a victim of Republican legislators, many of whom trot out their support for the troops to great rhetorical effect during election years.
Read Next: Mary Bottari on why pro-austerity groups lost the deficit wars.
Ever since President Obama announced that the Keystone XL pipeline would be in the national interest only if it “does not significantly exacerbate the problem of carbon pollution,” the project has been scrutinized primarily on those terms. But there are other concerns to factor into an analysis of the project’s costs and benefits, particularly the local effects on communities along the pipeline route, from the tar sands in Alberta to refineries in Texas.
“I believe the health impacts of tar sands oil are being ignored,” Senator Barbara Boxer warned at a press conference Wednesday, where she and Senator Sheldon Whitehouse called on the Obama administration to conduct a thorough review of potential public health implications of extracting, transporting and refining oil from the tar sands before making a decision about the pipeline. Although the State Department finalized the environmental assessment of the project last month, Boxer said the report “was woefully inadequate when it came to exploring human impacts of the pipeline.” (The State Department had not responded to a request for comment at press time.)
Those impacts include rising cancer rates in places like Fort Chipewyan, a First Nations community downstream from a major tar sands site in Alberta; air pollutants and carcinogens in neighborhoods where refineries will process the oil, like Port Arthur and Manchester in Texas; immediate safety risks from transporting corrosive crude; and mountains of pet coke, an oil sands’ byproduct, which are growing throughout the Midwest. Much of this risk would be born—and is already being born—by poor people of color. Port Arthur, for example, has a 26 percent poverty rate, compared to 17 percent in the rest of Texas; three-quarters of the residents are of color. Manchester, a predominantly Latino community, is already one of the most polluted neighborhoods in the country.
“Health miseries follow tar sands—from extraction to transport to refining to waste disposal,” said Boxer. “Children and families in the US have a right to know now—before any decision to approve the Keystone tar sands pipeline—how it would affect their health.”
The State Department has been criticized before by lawmakers and the Environmental Protection Agency for failing to properly assess the health threats posed by KXL. “We’re at a point where health issues are often glossed over,” said Danielle Droitsch, a senior attorney with the Natural Resources Defense Council and co-author of a report on the health effects of tar sands crude. Part of the problem is that there isn’t a substantial body of research into whether oil from the tar sands impacts health differently than traditional crude. “At a minimum we’re going to have to study this a little bit further. Frankly, there’s enough out there to suggest this stuff is actually worse, and that what we really need to do is transition away to cleaner sources,” Droitsch said.
The public health blindspot extends beyond KXL. The Obama administration has embraced the North American oil and gas boom without really acknowledging that extracting and refining more fossil fuels at home means increasing the immediate health risks associated. Like Keystone, an “all of the above” energy strategy should be examined for its potential climate impact, which is itself a public health threat. But there are also questions to address about environmental justice and accountability for the petrochemical corporations powering the domestic boom. Many communities—in southern Louisiana, for example—have been sacrificed for the oil economy already. Whether more are ruined is a matter of deliberate policy making, not an inevitability.
Democrats in the House are also hammering the State Department for deficiencies in its environmental review. On Tuesday, Representative Raúl Grijalva asked the Government Accountability Office to audit the conflict-of-interest procedures the State Department used when it selected a contractor to conduct the Environmental Impact Statement. Several reports suggest that Environmental Resources Management, the London-based company hired to do the study, failed to disclose relationships with TransCanada and other corporations that would benefits from tar sands development.“If this is going to be a scientific basis for a decision on the pipeline…then the credibility of that information must be without any doubt. And at this point, that doubt exists,” Grijalva said at a press conference on Tuesday. The GAO told reporters it had not yet decided whether to conduct the review, but Grijalva said he’d been told the office would pursue an inquiry.
The State Department’s inspector general announced Wednesday that its own review found no violations, but Grijalva still wants a third-party review. “The inspector general was only asked to examine whether the State Department followed its own flawed process for selecting a third-party contractor. The fact that the answer is ‘yes’ doesn’t address any outstanding concerns about the integrity of ERM’s work, the State Department’s in-house ability to evaluate its quality, or whether the process itself needs to be reformed,” Grijalva said in a statement.
Read Next: Young activists are risking arrest as they protest against Keystone XL.
When Brenda Hoster publicly accused the sergeant major of the Army of sexually assaulting her, it nearly destroyed her life. She thought it would be worth it.
“I felt like what I did was the right thing, the ethical thing, not just for me but for all military men and women,” Hoster, a retired sergeant major and public affairs specialist, said in one of two phone conversations. Her complaints against the Army’s top enlisted soldier were part of a wave of sex scandals that rocked the military in the 1990s. Today, Congress is still debating how to best reform the military justice system.
“Nothing’s changed. Why is that?” asked Hoster. “I feel like my journey was for nothing.”
It’s been nearly two decades since Hoster spoke out against Sergeant Major Gene McKinney, who was her boss. She’d stayed quiet for months after the alleged assault, which she said occurred in a Honolulu hotel room in 1996. Hoster said her superiors at the Pentagon told her to resolve her issues with McKinney (who was later acquitted) on her own, and later refused her requests to transfer. Feeling powerless and alone, Hoster chose to end her twenty-two-year career. “There was very little confidence back then about being a whistleblower,” she said. “It was fight or flight, and I flew.”
Around the same time a sex scandal at an Army training base in Aberdeen, Maryland, in which twelve officers were accused of assaulting female trainees, sparked public concern about assault in the military. Aberdeen came on the heels of the 1991 Navy Tailhook scandal, in which more than 100 officers were accused of assault or harassment. In response to the Aberdeen incident, the Army commissioned a panel to investigate its sexual harassment policies.
One of the appointees was McKinney. “I said, ‘Oh, hell no,’” remembered Hoster. In February of 1997 she decided to go public and filed a formal complaint with the Army. Five other women came forward to accuse McKinney for separate incidents. “It was about the ethics of it—nobody would do anything to help me, and now this guy was going to be on this panel investigating sexual harassment. To me, it was like nobody cared. I cared, and I spoke. And I paid dearly for it,” said Hoster.
After decades of scandals, investigatory panels and trials, the military still has not stemmed the sexual assault epidemic. Nor has it found a way to assure service members like Hoster that they will be heard and protected if they report crimes against them. Only two in ten service members who suffered “unwanted sexual contact” in 2012 reported the incidents. As the system is set up now they must do so through their commanding officer, who then decides whether the accusations warrant a trial by court martial.
“I think nothing’s changed because of the way that these things are brought to justice—or not to justice. I think a lot of it has to do with antiquated, non-functioning military justice system,” Hoster said.
Congress reached a similar conclusion last year after a series of hearings, and passed a number of reforms to the military justice system along with the annual defense spending bill. The new legislation bars commanders from overturning jury convictions, criminalizes retaliation against people who report sexual assault, mandates dishonorable discharge for anyone convicted of sex crimes, and removes the statute of limitations for such cases.
But Congress has not yet voted on the most significant and controversial reform proposed—Senator Kirsten Gillibrand’s Military Justice Improvement Act, which would put military lawyers, rather than commanding officers, in charge of sexual assault prosecutions. Victims’ advocates, veterans and some active duty officers argue that forcing victims to report to commanders exposes them to conflicts of interest and retaliation, and disadvantages accused and accuser alike by putting legal decisions in the hands of officers without legal training. Fifty-four senators—including nine Republicans—support Gillibrand’s bill, which the chamber will take up some time in March. The military’s top brass and two key Democrats on the Armed Services Committee, chairman Carl Levin and Claire McCaskill, oppose the measure, saying it would undermine commanders’ ability to enforce order and discipline in the ranks.
“From my experience, victims—and I hate that word, but can’t think of anything else—the victims don’t have someone they can trust to go to,” Hoster said. “How the hell would they have confidence in the chain of command right now? How could anyone have confidence, with all this stuff happening for years?”
In 1997, after what Hoster described as a “nasty” trial, McKinney was acquitted of all but one count of obstructing justice. Hoster struggled to keep her life together in El Paso, Texas, where she lived “like a recluse.” She had devoted her life to the Army: it gave her a ticket out of small-town Pennsylvania, and she loved the culture of discipline. Without it, she drifted. It took about ten years for the alienation and defensiveness to fade. Now she works for the Veterans Administration in San Antonio, which she considers an extension of her service in the Army. She describes her life largely in positive terms, but acknowledged that occasionally something rekindles her memory of the assault and its drawn-out aftermath.
‘I am a lot better after all these years, but when I start talking about it…” Hoster began to cry, softly. “It never goes away. You just need to learn how to deal with it better. It will always feel bad.”
What makes Hoster angry now is not what she says happened to her; it’s that speaking out didn’t make more of a difference for others in the military. In her work Hoster frequently encounters other veterans struggling with military sexual trauma. “It just disgusts me that it’s still happening,” Hoster said.
Gillibrand’s bill is likely to draw a filibuster, and both sides are contending for a handful of undecided votes. Opponents say the reforms that passed in December are sufficient correctives, and they should be given time to work before imposing deeper change.
Hoster is tired of the military asking for more time. “I fell on my sword for something back then,” she said when asked why the debate still mattered to her. “I’m not gonna turn my back on it.”
Read Next: Zoë Carpenter on how the military is trying to stifle further sexual assault reforms
When an American drone fired four Hellfire missiles at a convoy of cars travelling from a wedding in Yemen last December, who died?
According to their relatives, the twelve men killed in the attack were shepherds, farmers or migrants who worked across the border in Saudi Arabia. They were fathers and sons. Shaif Abdullah Mohsen Mabkhut al-’Amri was the youngest, at 22; in a photo belonging to his uncle he looks slightly perplexed, eyes fixed on the camera over a sparse mustache and a half smile. Hussein Muhammad al-Tomil al-Tisi, 65, was the oldest killed. Twenty-eight-year-old ’Aref Ahmed al-Tisi’s youngest child, his seventh, had been born less than two weeks earlier. Ali Abdullah, 36, had been a soldier. His father watched as the missile that killed him hit. “I found him tossed to the side. I turned him over and he was dead,” the father remembered later. “My son, Ali!”
These details were collected by Human Rights Watch and published Thursday in a report that suggests that some, if not all of the victims of the December strike were civilians. The report concluded that the attack violated policies for targeted killings that President Obama laid out in May.
The story told by the report is one of disputed identity. Anonymous US officials have said all of the twelve men killed were militants traveling with Shawqi Ali Ahmad al-Badani, allegedly a member of Al Qaeda in the Arabian Peninsula (AQAP) and the primary target of the strike. Officials say al-Badani was wounded, and escaped. Relatives of the dead say they didn’t know him.
The Yemeni government appears less sure of the details. The day after the strike, an official news agency reported the convoy carried “many terrorist members and leaders who were involved in plotting attacks.” But the following day, the general who commands the military zone in which the strike took place and the governor of the region called the attack a “mistake,” and distributed cash and Kalashnikovs to the families of the dead and wounded as a gesture of apology. Although two Yemeni officials who spoke to HRW affirmed the Americans’ story that al-Badani was in the convoy, multiple sources acknowledged to HRW that at least some of the men were civilians. Three suggested members of AQAP had used the wedding convoy as “camouflage.” One said he’d been told the men were “guys for hire—shady.” A Yemeni security analyst said he was convinced that all twelve were civilians.
We’re unlikely to find out exactly who these men were or what sort of threat they might have posed. The administration has refused to release details of the two internal investigations of the attack that US officials told the Associated Press they’d carried out, although they said both inquiries confirmed that all of the men killed were members of AQAP. It’s unclear how that determination was made, although one detail reportedly arousing suspicion was the fact that the convoy was made up of men with rifles. To segregate wedding processions by gender is common practice in Yemen’s tribal areas, HRW pointed out, as is traveling with assault weapons.
“The US refusal to explain a deadly attack on a marriage procession raises critical questions about the administration’s compliance with its own targeted killing policy,” wrote Letta Taylor, the report’s author. The report concludes that the United States has an obligation to investigate the strike futher, and provide a public accounting.
The questions raised by the wedding attack go beyond identity, beyond compliance. Another debate to be had is about the existence of the killing program—its legal basis, its strategic benefits, its moral implications—not just adherence to its rules. This is a conversation the administration has tried to avoid. Although Obama has proposed shifting the CIA’s drone program to the Pentagon to increase transparency, the White House has brushed off Congress’s attempt to broaden its oversight. Last week, the administration forbade CIA officers from attending a hearing in the Senate Armed Services Committee, and refused to grant security clearances to committee members so they could be briefed.
We may not know whom we’re killing, but the people left behind know who is responsible for their losses. “We have nothing, not even tractors or other machinery. We work with our hands. Why did the United States do this to us?” the groom asked in a video shown to HRW researchers. No one, so far, has a real answer for him.
Abdu Rabu Abdullah al-Tisi told HRW he lost four relatives in the strike. “Our tribe is very big,” he said. “It will not forget the blood of our sons; it will not let this blood flow in vain.”
Read Next: Bob Dreyfuss on a one woman play about America’s drone warfare program
On Sunday, Secretary of State John Kerry delivered a call for climate action that attracted considerable attention because of its forcefulness. Speaking in Jakarta, Indonesia, Kerry rebuked climate deniers, referring to them as “a tiny minority of shoddy scientists…and extreme ideologues.” He described the economic costs and catastrophic implications of inaction. Most strikingly, he suggested that climate change is “the world’s most fearsome weapon of mass destruction.”
“It doesn’t keep us safe if the United States secures its nuclear arsenal, while other countries fail to prevent theirs from falling into the hands of terrorists,” Kerry said. Similarly, a serious response to climate change requires that all countries break their fossil fuel addiction. “At the end of the day, emissions coming from anywhere in the world threaten the future for people everywhere in the world,” Kerry said.
Kerry’s nuclear analogy is useful for understanding the Obama’s administration’s climate agenda—and its glaring omission. The plan is built on three pillars: curbing domestic carbon pollution (or, securing our own nuclear arsenal), preparing for the impacts of climate change (building fallout shelters) and leading efforts to address climate change internationally (encouraging disarmament.)
All of that nonproliferation work would be undercut if the US sold weapons-grade uranium to the countries it was asking not to build a bomb. In effect, that is what the United States is doing with fossil fuels. While the administration takes steps to cut down emissions at home—via investment in renewables, tighter efficiency standards for power plants and vehicles—Obama continues to promote an “all of the above” energy strategy that ensures oil and coal companies profit from selling American-made dirty energy abroad. It’s one of the most critical inconsistencies among the president’s climate policies.
Source: Duncan Clark, TheGuardian.com
Consider coal. The Environmental Protection Agency’s highly anticipated power plant rules are expected to dramatically hasten the shift from coal to natural gas and renewables in the domestic utility sector; internationally, Obama has said he wants to halt public financing for new coal-powered plants. But under Obama’s leadership the Bureau of Land Management has continued to lease federal land in Wyoming and Montana to Big Coal at below-market prices, propping up the industry while cheating taxpayers of an estimated $30 billion over the past thirty years. Now coal companies are lobbying for a rail-to-port pathway through the Pacific Northwest that would carry roughly as much carbon as the Keystone XL pipeline to foreign markets, and the Army Corps of Engineers has declined to conduct a full environmental impact study of the proposal.
One could argue that US exports are simply meeting demand that other countries would fill in our absence. But the United States has been working to make sure that demand doesn’t dry up, and that markets remain open for our dirty energy. As Tim Dickenson reported in Rolling Stone, US trade representative Michael Froman has tried to weaken new fuel standards in Europe that are intended to reduce emissions, largely out of concern for refiners of tar sands oil.
Making less, not more, fossil fuel available should be a critical part of the climate agenda; we know we have to keep 80 percent of global reserves in the ground to have a chance of avoiding the most damaging effects of climate change. “The solution is making the right choices on energy policy,” Kerry said in Jakarta. “With a few smart choices, we can ensure that clean energy is the most attractive investment in the global energy sector. To do this, governments and international financial institutions need to stop providing incentives for the use of energy sources like coal and oil.” To the contrary, by increasing production and exports, the United States is encouraging more consumption and more fossil fuel investment. And that makes it more difficult for renewables to compete.
The same can be said of the Keystone XL pipeline. Currently, Alberta’s tar sands—which hold some of the dirtiest oil in the world—are considered risky investments, because they are difficult to produce and transport. As the oil industry, the Canadian government and financial analysts have made clear, the pipeline is the best way to get oil to international markets. Approving it, then, would clearly incentivize both the production and consumption of tar sands oil.
Kerry’s speech in Jakarta was bookended by two climate-related announcements by Obama. Last Friday, the president visited drought-stricken farmland in California where he warned of the likely increase in extreme weather events as global temperatures rise, and proposed a billon-dollar fund to help communities prepare for them; on Tuesday, Obama directed the Environmental Protection Agency to draft new fuel efficiency regulations for trucks and other commercial vehicles.
There’s some speculation that these moves are intended to soften the blow if Obama approves KXL. But as the administration continues to stress the urgency of climate change and other countries’ responsibility to make “the right choices on energy policy,” it will be increasingly difficult to justify approving the pipeline. We can applaud Kerry for criticizing crackpots in Congress and phony scientists, and for being forthright about the danger of inaction. But rhetorical courage is only useful if it translates into courageous action. To return to Kerry’s nuclear analogy: dismantling a bit of our arsenal makes us little safer, and gives us little credibility to ask others to abandon theirs, if we drop a bomb in the process.
Read Next: Michael T. Klare on how big oil is winning the climate change war
In 1798, the Federalist Party leveraged fear of French spies and domestic traitors to pass the Sedition Act, making it a crime to publish “any false, scandalous and malicious writing” that would bring Congress and the president into “contempt or disrepute.” Punishment ranged from six months to five years in prison and $5,000, a small fortune at the time. Several editors and publishers were prosecuted. Some newspapers folded, others were cowed into silence and at least one editor fled and continued to write in hiding.
The Sedition Act was one of the first challenges to the First Amendment, which asserts freedom of speech and the press. The act expired after Thomas Jefferson won the presidency and reaffirmed citizens’ right “to think freely and to speak and write what they think.”
More than two centuries later Representative Mike Rogers, the Republican in charge of the House Intelligence Committee, has come up with a new way to silence reporters responsible for stories he considers threatening to national security. In a lengthy exchange in a hearing on Tuesday with FBI director James Comey about the documents leaked by Edward Snowden, Rogers suggested that because reporters are profiting from stories based on these stolen documents, they have committed crimes. The discussion is worth reading in full, but here’s the key bit:
ROGERS: So if I’m a newspaper reporter for—fill in the blank—and I sell stolen material, is that legal because I’m a newspaper reporter?
COMEY: Right, if you’re a newspaper reporter and you’re hocking stolen jewelry, it’s still a crime.
ROGERS: And if I’m hocking stolen classified material that I’m not legally in possession of for personal gain and profit, is that not a crime?
Comey demurred, saying the question “could have First Amendment implications.”
No kidding: While the government has gone after reporters for refusing to reveal their sources for stories based on unauthorized leaks, no journalist has ever been prosecuted simply for reporting a story based on classified information. Doing so would tip the balance between the government and the Fourth Estate dramatically.
While Rogers’ comments implicate all journalists (and anyone who cares about the First Amendment), he saved his ire for Glenn Greenwald in particular. “For personal gain, he’s now selling his access to information, that’s how they’re terming it…. A thief selling stolen material is a thief,” Rogers told Politico after the hearing. But according to Rogers’ reasoning, shouldn’t Barton Gellman of The Washington Post and other reports from ProPublica and The New York Times who have broken stories based on the Snowden leaks be prosecuted? And what about the editors and publishers who, arguably, have also profited from running stories based on the classified documents and some of the documents themselves?
This is dangerous terrain. Director of National Intelligence James Clapper has now repeatedly called on Snowden’s “accomplices” to return stolen materials, presumably referring to journalists. Rogers picked up Clapper’s term on Tuesday to reinforce his accusations of criminal liability. Comey, for his part, went so far as to suggest that journalists working with the Snowden documents may be implicated in an “active investigation.” He told Rogers, “We are looking at the totality of circumstances around the theft and promulgation.”
These attacks on press freedom come as the Obama administration is trying to assure journalists that they are not being targeted. After the Department of Justice came under fire for referring to Fox News reporter James Rosen as a “co-conspirator” in a case against Rosen’s source, Attorney General Eric Holder promised that the DOJ “will not prosecute any reporter for doing his or her job” or “target members of the press or discourage them from carrying out their vital work.” The DOJ is already following new media guidelines, which will be published in coming weeks.
These days, the Sedition Act would instantly be recognized as heavy-handed, and in flagrant violation of the First Amendment. The chance that Rogers will get serious support for the prosecutions he’s salivating after seems remote for similar reasons. But the threats themselves matter. Many reporters and editors have described the chilling effect brought by the government’s crackdown on leakers, and by suggestions like Comey’s that national security journalists may also be under investigation. Rogers’s questions are outrageous, but let’s not give him all the credit: there are many ways to undermine press freedom without making reporting illegal.
Read Next: Nicolas Niarchos on NSA wiretapping and attorney-client privilege.
The State Department has released a long-awaited environmental impact statement for the Keystone XL pipeline. Here’s the key section:
[A]pproval or denial of any one crude oil transport project, including the proposed Project, is unlikely to significantly impact the rate of extraction in the oil sands or the continued demand for heavy crude oil at refineries in the United States based on expected oil.
In other words, the State Department believes that oil from Alberta’s tar sands will be extracted, shipped and burnt regardless of whether the pipeline is built or not. That conclusion is disappointing for anyone hoping that the review would give President Obama clear justification to reject the pipeline. Last August, he declared that it would not be in the national interest to greenlight any project unless it “does not significantly exacerbate the problem of carbon pollution.”
Instead, the EIS leaves the administration considerable room to maneuver as the decision process enters the next stage: a more comprehensive assessment of whether the pipeline serves the national interest. That determination will consider climate change, foreign policy and energy security. “This is not a document that deals with approving and denying” the pipeline, Assistant Secretary of State Kerri-Ann Jones emphasized on a call with reporters. There is no timeline for a final decision on the project, although eight federal agencies have ninety days to weigh in, and a monthlong public comment period begins on February 5.
While the EIS does not lay out a clear reason to reject the pipeline, neither does it deny the environmental implications of the project completely. The report affirmed a previous finding that oil produced from tar sands produces about 17 percent more greenhouse gas pollution when burned, compared to traditional crude. Jones said it would be “a bit of an oversimplification” to conclude from the report that KXL would have no impact on climate change. Jones also acknowledged that the report’s assumptions about oil markets are “uncertain and changeable.”
One figure we’re likely to hear cited by proponents of the pipeline is 42,100. That’s the number of temporary jobs the pipeline is expected to generate, according to the report. However, the more significant number is fifty. According to the EIS, that’s how many people would still have a job once construction ends in a year or two.
The timing of the release is itself controversial. The State Department’s Inspector General has yet to complete a conflict of interest investigation into the contractor hired to conduct the EIS, a London-based company called Environmental Resource Management (ERM). The IG launched its investigation after Friends of the Earth and other groups obtained information indicating that ERM failed to disclose connections to TransCanada, the company backing the pipeline, and other industry groups.
In December, twenty-five Democrats in Congress sent a letter urging officials to delay the publication of the EIS until the allegations had been fully investigated. “It would be unwise and premature for the Department of State to release an EIS prepared by ERM while it remains under investigation for lying to federal officials about its ties to TransCanada and over a dozen oil companies with a direct stake in whether or not Keystone XL gets approved,” the letter reads.
Asked why the State Department did not wait for the IG report to publish the EIS, Jones said that the two studies were “completely separate processes,” and that the agency was confident in its conflict of interest procedures. “I feel that it’s important for us to move forward in our process,” she continued. “We wanted to get this document out and keep moving.”
The timing of the release infuriated some members of Congress. “This document will be seen by the entire environmental community—in which I certainly include myself—as a sham. The fact that the Canadian government and the oil industry were reportedly briefed on today’s news before Congress was given the courtesy of a heads-up speaks volumes,” Representative Raúl Grijalva, a Democrat on the House Committee on Natural Resources, said in a statement. “The only way to approve Keystone XL is to ignore the multiple lies TransCanada told the State Department in its application. I’m sorry to see the State Department is comfortable with that.”
The allegations against ERM appear serious. Furthermore, internal State Department documents obtained by the Sierra Club suggest that State did not verify ERM’s claim to be free of conflicts of interest. If it had done so, the agency would have found that ERM failed to disclose relationships with several companies that could benefit from tar sands development, including ExxonMobil, Shell, Chevron, Conoco Phillips and Canadian Natural Resources. Several oil and gas industry associations that have advocated for the pipeline list ERM as a member, including the American Petroleum Institute, which has spent $22 million on KXL and tar sands lobbying, according to Friends of the Earth. A Mother Jones investigation found evidence that the State Department knew about, and tried to conceal, connections between TransCanada and one of the ERM employees leading the KXL review.
Now that the decision is in President Obama’s hands, expect new action from environmental groups. Vigils are planned around the country for Monday. Sixteen organizations have sent a letter to Secretary of State John Kerry, complaining that the scope of the environmental review was too narrow and threatening legal action based on the National Environmental Policy Act.
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“The men and women of America’s intelligence agencies are overwhelmingly dedicated professionals,” Ron Wyden said on Wednesday, before proceeding to excoriate their bosses in front of the Senate Intelligence Committee. Addressing Director of Intelligence James Clapper, CIA Director John Brennan and FBI Director James Comey, Wyden continued,
“They deserve to have leadership that is trusted by the American people. Unfortunately, that trust has been seriously undermined by senior officials’ reckless reliance on secret interpretations of the law and battered by years of misleading and deceptive statements that senior officials made to the American people. These statements did not protect sources and methods that were useful in fighting terror. Instead, they hid bad policy choices and violation of the liberties of the American people.’
With the future of the surveillance programs disclosed by Edward Snowden still uncertain, the ball is very much in Congress’s court. Specifically, in the Intelligence And Judiciary Committees, which have critical oversight roles over the National Security Agency and others. The stakes are higher than the individual programs revealed by Snowden, however. In question is Congress’s ability to act as an effective watchdog over an expanding national security state.
Wednesday’s hearing nicely showcased the two major hurdles to congressional oversight. The first, as Wyden argued, is senior intelligence officials. The second is the congressional committees, which face an institutional mismatch with the intelligence community and whose members often seem more committed to protecting, rather than scrutinizing, the agencies they are tasked with overseeing.
First, a brief history. After revelations about abuses by the CIA and other agencies in the 1970s, Congress struck what Stephen Vladeck, a professor of law at American University, calls a “grand bargain,” to accommodate the paradoxical need to submit secret programs to democratic oversight. New legal constraints on intelligence activities would be enforced not in public but instead behind the veil by the intelligence committees and the Foreign Intelligence Surveillance Court (also known as the FISA court). As Colorado Senator Mark Udall said at the Intelligence Committee hearing, “This committee was created to address a severe breach of trust that developed when it was revealed that the CIA was conducting unlawful domestic searches.”
The Snowden leaks indicate the bargain has broken down. “In essence, the delicate balance Congress sought to strike thirty-five years ago now appears to be tipped, rather decisively, in favor of the intelligence community,” Vladeck explained in an e-mail.
Intelligence officials have done some of that tipping themselves, by withholding information from the public and lawmakers. On Wednesday, Wyden said the committee had been “stonewalled” by intelligence officials; indeed, none of his questions received direct answers, although Wyden did receive promises from officials to get back to him by specific deadlines. Wyden also cited several incidents in which officials had given inaccurate testimony in public hearings. Last March, for example, James Clapper told Wyden that the NSA did “not wittingly” collect data on American citizens, a claim we now know from the Snowden leaks to be false.
In some cases, officials may not be telling legislators anything at all. “There are certain things that the committees are simply not going to find out about unless they’re briefed,” said Representative Adam Schiff, a California Democrat on the House Intelligence Committee. According to law, the executive branch must keep the intelligence committees “fully and currently informed” of any intelligence activity, including significant anticipated activity. But recent history suggests that even committee chairs have not been kept abreast. Senator Dianne Feinstein, who chairs the Senate Intelligence Committee and has become one of the NSA’s closest congressional allies, has admitted that her committee “was not satisfactorily informed” about certain surveillance activities, in particular the tapping of German chancellor Angela Merkel’s cell phone.
The reauthorization of Section 215 of the Patriot Act, which the NSA says provides legal grounds for collecting Americans’ phone records in bulk, presents another case in which Congress appears to have had insufficient information to determine whether intelligence activities were lawful. In a report released last Friday, the Privacy and Civil Liberties Oversight Board explained that the FISC did not articulate the legal basis for bulk collection until last August—years after Congress extended Section 215 in 2010 and 2011. This indicates that lawmakers may not have been properly informed of how the statute was being applied when they extended it. Ultimately, the board argued that Section 215 is not written in a way that justifies bulk data collection at all, but it said that even if the language were ambiguous, some members of Congress “may have been prohibited from reading” critical documents before voting to maintain Section 215.
One explanation for these gaps is the institutional mismatch between the intelligence community and the congressional committees. “The intelligence committees are small, the staff is small, the agencies themselves are behemoth,” said Schiff. In the House, members are not permitted to have their own staff on the committee, and some have described feeling inadequately prepared to question intelligence officials. “You don’t have any idea what kind of things are going on. So you have to start just spitting off random questions: Does the government have a moon base? Does the government have a talking bear? Does the government have a cyborg army?” Representative Justin Amash said in October at a conference hosted by the Cato Institute.
The administration says Congress is duly informed, while other lawmakers have suggested it’s their colleagues’ own fault if they aren’t up to speed. Clapper reaffirmed promises of greater transparency on Wednesday, but critics remain skeptical. “I don’t think this culture of misinformation is going to be easily fixed,” Wyden warned. Representative Schiff told me that he expects the mismatch in resources to continue to impact the committees’ oversight ability. “I’d like to see our capacities augmented in the intelligence committee, but at a time of dwindling legislative budgets, I’m not sure whether that will take place,” he said.
Congress could reassert some of its own authority by including more members in the group briefed on significant intelligence activity, for example; by shortening the authorization period for laws like the Patriot Act to spur more frequent debate; by imposing a rule of lenity on the FISA court, so that the administration would have to receive congressional approval in ambiguous cases, thus preventing the FISA court from creating its own novel interpretations of law; and by making sure FISA judges hear adversarial opinions from civil liberties and technology experts. Whether Congress has the will to strengthen its own hand is the big question. The fact that the chairman of the House Intelligence Committee, Mike Rogers, believes that “you can’t have your privacy violated if you don’t know your privacy is violated” does not exactly inspire confidence.
These questions about oversight can and should be separated from the debate about the legality and effectiveness of individual surveillance programs. “It may well be, at the end of the day, that the programs the committees are overseeing are legal, but meaningful oversight presupposes that the overseers will be the last, not the first, to reach that conclusion,” said Vladeck. The decision about whether the government or anyone else may continue to sweep up and search our phone records is important. Without addressing broader oversight issues, however, we may barely scratch the surface of a much-needed conversation about balance of power in the post-9/11 era.
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Women in Louisiana could lose all access to abortion services if the state succeeds in enacting a secretive overhaul of its clinic regulations. The requirements are so stringent that not one of the five clinics currently operating in Louisiana would meet them, according to a lawyer advising the clinics. The new regulatory framework would also impose a de facto thirty-day waiting period for many women—an exceptional requirement.
“What it amounts to is a back-door abortion ban,” said Ellie Schilling, a New Orleans attorney. “The way the [Department of Health and Hospitals] went about passing these regulations was in a secretive and undemocratic way. The public definitely doesn’t know what’s going on.”
DHH enacted the overhaul just before Thanksgiving, when it passed the rules as an emergency measure, effective immediately—exempting them from the normal comment period. None of the clinics were given notice; one heard about the declaration of emergency from an anti-abortion protester.
It isn’t clear what emergency the agency was responding to. There has been virtually no reporting on the new rules, and DHH did not respond to questions submitted Monday. The Declaration of Emergency states that the agency proposed the licensing standards in order to comply with two acts passed by the Louisiana legislature in 2013, but a complete overhaul goes well beyond their demands. DHH formally declared its intentions to make the emergency rules permanent in December.
According to Schilling, the law gives the agency the ability to shut down every existing clinic in Louisiana immediately by imposing new space requirements that none of the existing clinics meets. Providers would lose some of their rights to appeal noncompliance citations, while new and complex documentation and staffing requirements create more opportunities for DHH to cite clinics for deficiencies. “Deficiencies are used to create this impression of clinics being repeat offenders, and that’s a basis for revoking their license,” explained Schilling.
The regulatory overhaul would also give the state tools to prevent new clinics from getting a license. Proposed facilities—like a $4.2 million Planned Parenthood health center on South Claiborne Avenue in New Orleans—would have to prove to DHH that their services are needed; it’s unclear what criteria the agency would use to determine need. “It certainly seems that one intention is to prohibit Planned Parenthood from entering the market,” Schilling said. (Planned Parenthood clinics in Louisiana do not currently offer abortion services. “We are evaluating all our options” in light of the regulations, a spokesperson said.)
The new rules place a significant, unjustified burden on women by requiring that they undergo blood tests at least one month before an abortion procedure. That means that unless a patient happens to have gone to the doctor previously and had those tests done by chance, she will face a mandatory thirty-day waiting period.
“I’ve never seen anything like this. It’s pretty outrageous,” said Elizabeth Nash, state issues manager at the Guttmacher Institute, a women’s health policy group.
Louisiana already has a twenty-week cutoff, and so the waiting period could dramatically shorten the window in which women are legally allowed to have abortions. There is no medical rationale for conducting those particular tests so far in advance; they are routinely conducted by providers prior to an abortion, and legislation passed in 2003 that tightened the laws governing Louisiana’s abortion providers stipulated that they had to be done within thirty days of the procedure. To the contrary, forcing women to delay the procedures increases their expense, and raise the risk of complications.
Dozens of other states have passed waiting periods or regulations, known as Targeted Regulation of Abortion Providers, or TRAP laws, which single out abortion providers with burdensome rules. But Nash said that a de facto thirty-day waiting period combined with requiring clinics to prove need for their services makes Louisiana’s law striking. “It’s a great way to eliminate access,” said Nash.
All that’s stopping the state from completing the overhaul, Schilling said, is going through the motions of a public hearing. One is scheduled for Wednesday morning in Baton Rouge, but bad weather threatens to cancel it. It isn’t clear if the state would hold another hearing, as it was already scheduled at the very end of the comment period. Legal challenges would surely follow, but as Nash warned, rolling back clinic regulations in the courts is challenging.
“As it is right now, you have to go to the major cities to have procedure done. If these clinics close, where will the patients go? Then what are we back to? Back street abortions?” said Missy Cuevas, who is fighting a legal battle with the state after her New Orleans clinic lost its license a little over a year ago. With more than two decades of work in women’s health, Cueva has seen the burden on Louisiana women grow as regulators clamp down. Five to ten women still call every day looking for services, even though she’s been closed for so long.
“If we make it any more difficult, where are the patients going to go—Houston? Atlanta? My patients can’t afford to go to Baton Rouge from New Orleans, much less to Houston or Atlanta. It’s going to force women to go back to what they used to do before, and women will die.”
UPDATE: On Monday night, DHH press secretary Olivia Watkins informed The Nation that the agency would rescind the language regarding the 30-day period for blood tests. Watkins also said the rule would be revised to clarify that square footage requirements apply only to new or rennovated faciltities. A public hearing regarding the rule changes will take place in February.
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