03 March 22
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The first guilty plea in the seditious conspiracy case against top Oath Keepers includes chilling new details about how far the militia was prepared to go to block a Biden presidency
The Oath Keepers are led by Stewart Rhodes, whom the government has charged was the ringleader of the conspiracy to keep Trump in office. Rhodes has been ordered detained until trial, and has pleaded not guilty. In court documents, the militia leader has defended his conduct — including stockpiling caches of weapons across the river in Virginia — as preparation for the contingency that Donald Trump invoked the Insurrection Act and called on militias to come to his aid.
The 15-page statement of facts that James signed in relation to his crime alleges that the Oath Keepers were told to prepare for bloodshed at the White House. “In the weeks leading up to January 6, 2021,” the document reads, “Rhodes instructed James and other co-conspirators to be prepared, if called upon, to report to the White House grounds to secure the perimeter and use lethal force if necessary against anyone who tried to remove President Trump from the White House, including the National Guard or other government actors who might be sent to remove President Trump as a result of the Presidential Election.”
In addition, James stipulated to his own conduct, including assaulting a Capitol Police officer inside the halls of Congress while yelling: “Get out of my Capitol! Get out! Get out of my Capitol!” The document states: “James entered the Capitol in part to hinder or delay the certification of President-Elect Joseph R. Biden as President of the United States.”
The guilty plea creates new legal challenges for Rhodes, whose name appears 58 times in the factual summary of James’ crime. It undercuts arguments that he disapproved of the conduct of his militia members. The document asserts that after the Oath Keepers left the Capitol and convened with Rhodes on the grounds outside, “Rhodes told James he was glad James and others had gone inside the Capitol.”
Rhodes’ lawyers have asserted that the militia leader had a clean conscience after the events of Jan. 6, and enjoyed a relaxed meal with his companions at Olive Garden. But the factual stipulation of the guilty plea paints that dinner meeting in a starkly different light.
“While at the restaurant,” it reads, “Rhodes and James came to believe that law enforcement was searching for Rhodes and others after their attack on the Capitol.” It describes the group returning to their hotel, grabbing their bags, and then meeting at a gas station. “There, James saw what he estimated to be thousands of dollars’ worth of firearms, ammunition, and related equipment in Rhodes’s vehicle,” the document states. “Rhodes divvied up various firearms and other gear among James and others who occupied a total of three cars. Rhodes left his mobile phone with one person and departed with another person in that person’s car so that law enforcement could not locate and arrest him.”
The stipulation of facts also describes group text messages that James received “from an individual he understood to be an attorney for the Oath Keepers.” The messages advised Rhodes … Co. to cover their tracks. One message read: “STEWART: YOU ALL NEED TO DELETE ANY OF YOUR COMMENTS REGARDING WHO DID WHAT… You/we have not yet gotten a preservation order instructing us to retain those chat comments. So DELETE THEM.” It added: “GET BUSY. DELETE your self-incriminating comments or those that can incriminate others. Start now….”
James, in addition to confessing to the seditious conspiracy charge, has also pleaded guilty to obstruction of an official proceeding. Both offenses carry terms up to 20 years in prison. James has become a cooperating witness in the government’s case against the remaining alleged co-conspirators.
Reps. Matt Rosendale, Paul Gosar, and Thomas Massie, were the only three House members to vote against a bipartisan resolution supporting Ukraine (photo: AP)
Lawmakers in both parties voted near-unanimously in favor of the resolution, 426-3. The only votes in opposition were from three Republicans: Reps. Paul Gosar (Ariz.), Thomas Massie (Ky.) and Matt Rosendale (Mont.).
Rep. Adam Kinzinger (R-Ill.) said it was "unreal" that three fellow Republicans voted against the resolution.
"Talk to me when our border is secure," Gosar retorted on Twitter.
Massie said he opposed the resolution because he thought it was overly broad in its stated support for providing defense assistance to Ukraine, among other things. He also argued that the call for isolating Russia economically could ultimately backfire if "innocent people in Russia" suffer under harsh sanctions and develop resentments against America.
"I fully support the right of the people of Ukraine to self determination. However there are many reasons I could not vote for the seven page Resolution that passed the House of Representatives today," Massie wrote in a series of tweets.
The resolution, which is nonbinding, states that the House "stands steadfastly, staunchly, proudly, and fervently behind the Ukrainian people in their fight against the authoritarian Putin regime."
It also calls for the U.S. and its allies "to deliver additional and immediate defensive security assistance to help Ukraine address the armored, airborne, and other threats Ukraine is currently facing from Russian forces."
The resolution further asserts that American lawmakers "will never recognize or support any illegitimate Russian-controlled leader or government installed through the use of force."
House Foreign Affairs Committee Chairman Gregory Meeks (D-N.Y.), the author of the resolution, said the vote offered lawmakers an opportunity to formally register support for Ukraine after Russian troops began their assault on the nation last week.
"With this resolution, it becomes crystal clear: Mr. Putin, you can't win this. We're going to stand against you and we're going to preserve democracy, because that's what's at stake here," Meeks said on the House floor.
Wednesday's House vote came hours after the United Nations General Assembly voted overwhelmingly to condemn Russia's invasion of Ukraine. Only Belarus, North Korea, Eritrea and Syria backed Russia in that vote.
The Senate also passed a similar resolution last month in support of Ukraine ahead of the invasion.
Senators agreed to that bipartisan resolution in the face of failing to get a deal on a sweeping package to impose sanctions on Russia as it amassed troops along the Ukrainian border.
The U.S. and other European allies have issued a series of increasingly harsh sanctions in recent days, including cutting off some Russian banks' access to a messaging service connecting global financial institutions and targeting Russia's central bank.
President Biden further announced during his State of the Union address Tuesday night that the U.S. will ban Russian aircraft from American airspace, following similar moves by the European Union and Canada.
Tangible aid to Ukraine in the form of funding for military and humanitarian assistance, however, remains unsettled in Congress.
The Biden administration has asked Congress to approve $6.4 billion to bolster the U.S. response to the Ukraine crisis, but it's possible lawmakers could approve even more funding.
That includes $2.9 billion for the State Department and U.S. Agency for International Development for humanitarian relief efforts, as well as security assistance to Ukraine, Poland, the Baltic states and NATO allies. The other $3.5 billion would go toward additional funding for the Defense Department.
Lawmakers are eyeing the inclusion of the Ukraine aid into a broader government funding package known as an omnibus. Current funding for the federal government expires next Friday, March 11, meaning that the omnibus package could be a ready legislative vehicle that would need to be passed by Congress in the coming days anyway.
Speaker Nancy Pelosi (D-Calif.) said Wednesday that lawmakers were close to an agreement on the Ukrainian aid package.
"We should probably have all of that done today, because we have to be on schedule for the omnibus," Pelosi told reporters. "It's the vehicle that's leaving the station."
Afghanistan's central bank in Kabul, Afghanistan, Feb 9, 2022. (photo: Getty)
The families asked the White House to help end the mass starvation crisis in Afghanistan by releasing the country’s U.S.-held foreign reserves. New guidance from the Treasury Department provides a pathway.
“There is not only a moral imperative in doing this, there is also a national security interest in doing this and preventing Afghanistan from sliding into total collapse,” said Terry Rockefeller, whose sister died at the World Trade Center on 9/11. Rockefeller is a member of September 11th Families for Peaceful Tomorrows, an organization formed by family members of those killed on 9/11 to oppose the war in Afghanistan.
In February, the Biden administration announced that it would split over $7 billion in Afghan assets held in the New York Federal Reserve Bank between a pool for potential settlements for families of 9/11 victims and an ambiguously defined trust fund “for the benefit of the Afghan people.” The White House has yet to clarify when and how it will release the money, wary of the perceived legal and political repercussions that accompany transferring cash to the Afghan central bank, lest it be seen as giving money to the Taliban. White House press secretary Jen Psaki told reporters on February 15 that the administration was incapable of releasing any of the frozen funds until pending litigation has ended, but legal experts have dismissed that claim. On Friday, the Treasury Department issued a new general license to allow economic transactions with a suite of Afghan entities, including the country’s central bank, Da Afghanistan Bank, signaling a potential first step toward unfreezing the funds.
The White House did not respond to a request from The Intercept to clarify whether it stood by Psaki’s comments. The State Department reiterated the administration’s intentions to divert $3.5 billion into a trust fund but would not specify whether it believed that the administration had the power to immediately release those funds.
The administration’s slow-walking has led to a catastrophic crisis that now threatens to destroy more lives than two decades of fighting in Afghanistan, leaving the country’s populace facing desperation of nightmarish proportions. The United Nations has estimated that 1 million children are at risk of starving to death by winter’s end. In December, NPR reported that families were selling their children into marriage to pay for basic necessities like food and fuel. The compounding crises enveloping Afghanistan have drawn backlash from the public — including the family members of 9/11 victims.
“I think the Biden administration should have been more courageous and said that it was their position that this was not Taliban money and they would get it to the Afghan people,” Rockefeller said.
Reporting by The Intercept detailed former White House Afghanistan counsel Lee Wolosky’s work representing dozens of 9/11 victim families in a class-action settlement against the Taliban. The lawyers pursuing the settlements — which seek to stake claim to Afghan funds despite the fact that they are not and never were Taliban assets — stand to collectively earn over half a billion dollars in legal fees drawn from the frozen funds.
Less than a year since the war’s end, a new refugee crisis is emerging as Afghan civilians — some of whom were employed and then abandoned by the U.S. government — flee the combined threats of economic oblivion, widespread food insecurity, and retribution from the Taliban government. Tens of thousands of refugees have been pouring into Pakistan and Iran every week. What the Afghan economy needs, according to experts from the International Crisis Group and International Rescue Committee who testified on the subject in February, is an injection of liquidity — provided by its own central bank funds currently frozen and held in the U.S. The new Treasury guidance released Friday appears to be a step in that direction, though the U.S. government’s slow movement ensures that the crisis will continue to worsen at a rapid pace.
The fine print of the guidance admits that working with the central bank is functionally different from working with the Taliban, and this precedent could serve as the groundwork for a shift in policy toward the central bank. One of the “frequently asked questions” accompanying the guidance asks: “Does Afghanistan-related General License (GL) 20 authorize financial transfers to governing institutions in Afghanistan, including the Central Bank of Afghanistan (Da Afghanistan Bank, or DAB), or state-owned or -controlled companies and enterprises in Afghanistan?”
“Yes,” reads the answer. “GL 20 authorizes financial transfers to or involving all governing institutions in Afghanistan — including but not limited to the DAB, Ministry of Education, Ministry of Energy and Water. OFAC does not view financial transfers to governing institutions in Afghanistan or state-owned or -controlled companies and enterprises in Afghanistan as financial transfers to the Taliban, the Haqqani Network … or any blocked individual who is in a leadership role of a governing institution in Afghanistan.” The Treasury Department did not respond to a request from The Intercept to clarify its intention behind the move.
Rockefeller sees the Biden administration’s equivocation on recapitalizing the central bank as the final act of the United States’s failed war on terror in Afghanistan. Peaceful Tomorrows “had a long campaign for years that led to some payments for civilian casualties and payments for hospital care for innocent civilians who had been injured in America’s bombing attacks to bring down the Taliban,” she told The Intercept. “It was our position then that there is no way that you can have a war against terrorism. You can’t end terrorism by producing more civilian victims, and this is just what is happening now, more Afghan civilian deaths even after 20 years of war.”
On February 17, Rockefeller said, Peaceful Tomorrows met with senior Biden administration officials who claimed that a large percentage of the frozen assets consist of money that was first transferred to Afghanistan as humanitarian aid from Western governments and foundations.
“They told us that their research confirmed that the sources of the Afghan bank funds were international assistance,” Rockefeller said. “I thought the Biden administration could have made that its first argument and been much more assertive in saying that it was crucial that a large portion of the funds get to the Afghan people immediately.” The National Security Council did not respond to a request for comment on this argument.
Shah Mehrabi, an economics professor at Montgomery College who serves on the Afghan central bank’s supreme council, noted that the local currency that backs the reserves was created by the Afghan central bank. “Any foreign reserves will have to be converted to local currency,” he told The Intercept. “Who provided local currency? It was DAB,” he said, referencing the initials for the central bank.
“It’s clear that in some sense the 9/11 family members who are furious about their loss and who want the Taliban to suffer may be under a grave misunderstanding that this is Taliban money, when it is in fact far from it,” said Rockefeller. She said there was also “a grave misunderstanding that Biden took Afghan money and gave it to 9/11 family members, which has not happened,” since the proceedings are still held up in litigation. “It’s my fervent hope that the court decisions will back up what the Biden admin is saying, which is that this was never Taliban money.”
Rockefeller also said that Biden officials informed the group that there is another $2 to $2.5 billion in Afghan bank reserves in Europe — making up the country’s more than $9 billion in total foreign reserves — and that this too is likely made up of aid rather than Taliban-generated assets.
Leila Murphy, a Peaceful Tomorrows member who lost her father on September 11, told The Intercept that she thinks releasing billions of dollars in frozen funds to recapitalize the Afghan central bank is within the Biden administration’s powers but that the White House fears the political blowback this action might cause. She characterized the perspective as “rooted in fear and a particular idea of 9/11 victims and the place that 9/11 occupies in the American imagination.”
Over 60 attempts to contact members of the class-action suit pursuing claims against the Taliban were unsuccessful — except for one.
“Aren’t we not supposed to talk to you?” asked one claimant, Joslin Zeplin-Paradise, when reached by The Intercept. “Our lawyer said not to talk to you.”
Lawyers and lobbyists have stepped up their efforts to secure their cut of the $3.5 billion in funds set aside by the Biden administration. Andrew Maloney, one of the attorneys leading the effort to cash in on the frozen Afghan assets, justified his position by telling the BBC, “The reality is, the Afghan people didn’t stand up to the Taliban. … They bear responsibility for the condition they’re in.”
Phyllis Rodriguez, a founding member of Peaceful Tomorrows, disagrees. Rodriguez told The Intercept that the crisis unfolding in Afghanistan is counter to both her own values and those once held by her son Greg, who was killed on 9/11.
“He had wonderful values. We didn’t always agree on everything, but one thing we always agreed on was that war is evil and killing is evil and victimizing is evil. He was an empathetic person who would have certainly thought that millions starving to death is evil,” Rodriguez said.
“The identity of being a 9/11 victim is something I’ve tried to avoid because people assume victims want all these harsh outcomes,” Murphy told The Intercept. “I was at Guantánamo viewing pretrial hearings of those accused of planning the attacks, and I traveled with the victims assistance group, and it was like we were seen as victims that the prosecution wanted us on their side, and they wanted the death penalty.”
“Our principles and our beliefs haven’t changed since September 10, 2001,” said Rodriguez. “We were supposed to be vengeful. I want people to understand that we are not, and that we don’t have to be. This money belongs to regular people in Afghanistan. It’s their money, and it should go to them.”
A Hopi child rides a bicycle in 1972. (photo: Getty)
The Court’s Republican supermajority will hear a case about the Commerce Clause. God help us.
The four cases will likely be consolidated under the name Haaland v. Brackeen. But the most alarming of these four cases is Texas v. Haaland, because that case targets a provision of the Constitution that is the foundation of much of the federal government’s power.
In the worst-case scenario for, well, pretty much everyone who doesn’t share Clarence Thomas or Neil Gorsuch’s policy preferences, the Texas case could do considerable violence to a wide range of federal laws — including the ban on child labor, the ban on whites-only lunch counters, the Affordable Care Act, and nearly all federal laws governing the workplace.
The Constitution permits Congress to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” This power to regulate commerce is the basis of the modern American regulatory state, and it includes the federal government’s respective powers to set a minimum wage, protect the right to unionize, prohibit discrimination by private businesses, and protect the environment.
(Federal statutes and court opinions frequently refer to Native Americans as “Indians.” For this reason, this piece will include many quotes and legal references that also use this terminology.)
Indeed, the overwhelming majority of federal laws governing private companies exist because of this commerce power.
But the Supreme Court hasn’t always respected Congress’s broad power to regulate the national economy. In the late 19th and early 20th centuries, the Court adopted an exceedingly narrow reading of the Constitution’s Commerce Clause — and then used that reading to strike down child labor laws, sabotage antitrust laws, and strip workers of their right to organize.
This miserly reading of the Commerce Clause is now ascendant on the far right of the judiciary — Justice Thomas is its most prominent evangelist. And Texas is the first Commerce Clause case to reach the justices since Republicans gained a 6-3 supermajority on the nation’s highest court. So it could give us our first window into how the Court’s new majority views this singularly important constitutional question.
The Indian Child Welfare Act, briefly explained
The ICWA was enacted in response to a centurieslong effort to, as federal Judge James Dennis described it, “‘Christianize’ the supposedly heathen Native peoples.” As far back as the George Washington administration, Congress provided funding to raise Native children in white Quaker homes. Beginning in the 1800s, the federal government forcibly removed Native children from their homes and enrolled them in boarding schools intended to divorce them from their tribe’s culture.
As Commissioner of Indian Affairs T.J. Morgan described this project in 1896, its very purpose was “for the strong arm of the nation to reach out, take [American Indians] in their infancy and place them in its fostering schools, surrounding them with an atmosphere of civilization ... instead of allowing them to grow up as barbarians and savages.”
Though these federal boarding schools declined over the course of the 20th century, state governments continued to remove Native children from their families into the 1970s. As Judge Dennis writes, “surveys of states with large Indian populations during the 1960s and 1970s showed that between twenty-five to thirty-five percent of all Indian children were removed from their families.” A survey of 16 states, conducted in 1969, found that “approximately 85% of all Indian children in foster care were living in non-Indian homes.”
The ICWA sought to put an end to this practice of tearing Native children from their homes and placing them in unfamiliar settings — often with white families. Among other things, it provides that, if a state court determines that a child who is either “a member of an Indian tribe” or “is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe” must be removed from their home, then the state typically should place that child in another American Indian home:
In any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.
The various parties challenging the ICWA raise several objections to the law. Their strongest argument is that the law violates the “anti-commandeering doctrine,” a legal doctrine that strictly limits the federal government’s ability to compel state governments to behave in a certain way. The ICWA would be less vulnerable to this attack if it transferred child welfare cases involving Native children to federal courts, rather than regulating how state courts should handle these cases.
Some parties challenging the ICWA also claim that the law is unconstitutional because it classifies children based on race — although astute readers of the ICWA will notice that it does no such thing. It classifies children based on their membership in (or eligibility for membership in) a tribe, and this is not a racial classification. Some tribes, for example, offer tribal citizenship to the descendants of Black people who were enslaved by members of the tribe, even though these Black tribal members may not be blood descendants of the tribe’s indigenous members.
And then there’s the claim that the ICWA exceeds Congress’s power to regulate under the Commerce Clause.
A brief history of the Commerce Clause
Recall that the Commerce Clause actually gives Congress three separate powers. It permits the federal government to regulate commerce “with foreign nations, and among the several states, and with the Indian tribes.” The Court has, at various times, read Congress’s power to regulate commerce with tribal and foreign nations much more expansively than its power to regulate commerce “among the several states.”
The “Indian Commerce Clause”
The Court held in Cotton Petroleum Corp. v. New Mexico (1989) that “the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs” — “plenary power” means that Congress can do whatever it wants, provided that it does not violate any of the individual rights protected by the Constitution.
From the earliest days of the American Republic, the federal government was understood to have wide discretion to set policy with respect to Native American tribes. In 1789, for example, Secretary of War Henry Knox wrote to President George Washington that “the independent nations and tribes of Indians ought to be considered as foreign nations, not as the subjects of any particular state.” He later wrote that “the United States have, under the constitution, the sole regulation of Indian affairs, in all matters whatsoever.”
Thus, much like the federal government has one national policy toward Russia, France, or Mozambique — not 50 different policies set by 50 different states — it must also have a single national policy with respect to tribal relations. And this policy must be set by Congress, the only legislative body that speaks for the entire nation.
The “Interstate Commerce Clause”
The history of the Interstate Commerce Clause — the provision permitting Congress to regulate commerce “among the several states” — is much more fraught.
For those who want the longer version of this history, I spend several chapters discussing it in my first book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, but the short version goes something like this:
Early Americans lived in a nation where local marketplaces were often quite distinct from the economy of the nation as a whole. A farmer in Iowa, for example, would grow their grain in Iowan land, sell it in a nearby town to other Iowans, and never really compete with other farmers in other states.
As the United States industrialized, however, it built a nationwide network of railroads to transport goods among the states. In this industrialized nation, the same Iowa farmer’s grain would be shipped to Chicago on a rail car, where it would be intermingled with grain grown by farmers throughout the Midwest. Then it might eventually be sold to consumers in New York or Virginia or even somewhere overseas.
This economic history matters because the framers intended for the Interstate Commerce Clause to give Congress the power to regulate the national marketplace — what one early Supreme Court case described as “commerce which concerns more States than one.” Meanwhile, state governments would retain exclusive authority over purely local marketplaces.
But in a modern, industrialized economy, there’s no such thing as a purely local marketplace. Merchants routinely trade across state lines. And even if an individual merchant only trades locally with residents of the same state, that local merchant’s goods compete with other goods produced in other states, which impacts the price of those goods throughout the country.
And so Congress’s power to regulate interstate commerce grew to encompass the entire national economy — and every economic transaction that impacts that economy. As the Court held in United States v. Morrison (2000), Congress’s power to regulate interstate commerce extends to all “activities that substantially affect interstate commerce.”
There are, however, some limits on Congress’s power to act under the Interstate Commerce Clause.
For several decades, beginning in the late 19th century, the Court placed artificial limits on this power — most notably, the Court permitted Congress to regulate the transport of goods across state lines, but not the actual production of those goods. This distinction formed the basis of the Court’s decision in Hammer v. Dagenhart (1918), for example, which struck down a federal law seeking to ban child labor.
But this distinction between transport and production proved unworkable, not just because it led to cruel results like the one in Dagenhart, but because there’s no clear line between a law that regulates the production of a good and a law regulating its sale across state lines. Even if Congress can’t ban factories from employing 8-year-olds, why can’t it ban those factories from transporting goods produced by children across state lines?
Modern-day cases such as Morrison, by contrast, draw a distinction between economic and non-economic activity. Congress’s authority over economic matters is quite expansive, but the interstate commerce power does not apply to many non-economic activities.
So Congress could not pass a nationwide ban on assault, for example, because beating someone up is not an economic activity and typically does not have much of an impact on the national economy. And, for similar reasons, family law — the body of law governing marriages, divorces, child custody, and the like — is typically beyond the reach of Congress’s power over interstate commerce.
Which brings us back to the Indian Child Welfare Act.
Texas wants the Supreme Court to erase the distinction between the Indian Commerce Clause and the Interstate Commerce Clause
The primary thrust of the state of Texas’s argument in Texas v. Haaland is that the vision of Congress’s power over American Indian affairs that has prevailed since the Washington administration is wrong, and that “the notion that Congress has plenary power over some vaguely defined area of ‘Indian affairs’ ‘rests on shak[y] foundations.’”
Instead, Texas would have the Supreme Court read the Indian Commerce Clause and the Interstate Commerce Clause to “mean substantially the same thing.”
The immediate impact of such a decision is that it would likely doom the ICWA, and permit state courts — including Texas’s courts — to make child custody decisions that violate the ICWA. Again, the interstate commerce power typically does not permit Congress to regulate the family. So, if Congress’s power over Native American affairs is similarly limited, then the ICWA is in deep trouble.
And a decision redefining the Indian Commerce Clause to be coextensive with the Interstate Commerce Clause would also mean that anything the Supreme Court says about the scope of the former clause would also impact the later clause. That is, if the Court’s decision in Texas includes language limiting Congress’s ability to pass laws governing American Indians, that same language could also place limits on Congress’s much broader power to enact economic regulations such as the minimum wage or the Affordable Care Act.
One might expect the Supreme Court to show some humility when it is asked to scrap an understanding of the Constitution that has prevailed for more than 200 years. But that has not always been the Roberts Court’s practice. And it certainly hasn’t been the practice of so-called “originalist” justices, who frequently argue that their understanding of the Constitution’s text should prevail, even if it is at odds with decades or even centuries of precedent.
Justice Thomas has even argued that the Court should bring back the unworkable distinction between laws regulating transit of goods and laws regulating production — the very same legal reasoning that the Court once used to strike down child labor laws.
Realistically, there probably aren’t five votes on this Supreme Court to force children back into cotton mills. But every time the Court takes up a Commerce Clause case, the stakes are astronomically high. And we don’t really know yet how this Court’s 6-3 Republican majority will approach this all-important clause.
And even if the Court decides that a case about Native American children isn’t the proper vehicle to roll back the modern understanding of the Interstate Commerce Clause, the Court’s present majority is likely to stick around for many years. Which means they have many years to find other cases that they can use to set fire to one of the most important provisions of the Constitution.
Soldiers fire the U.S. Army's M1A2 SEPv3 tank at Fort Hood, Texas, August 18, 2020. (photo: Sergeant Calab Franklin/U.S. Army)
Joe Biden has requested more than $800 billion in military spending for the coming fiscal year. His spending plan won’t make the world safer, but it will probably funnel more than $400 billion in public money to private sector firms.
The fiscal year (FY) 2023 budget request Biden will send to Congress this month reportedly proposes more than $800 billion in military spending; $773 billion for the Department of Defense (DOD) and most of the rest for nuclear weapons programs in the Department of Energy. Save for the stretch of military budgets between 2007 and 2011 that sponsored back-to-back troop surges — first in Iraq and then in Afghanistan — Biden’s plan would give more money to the Pentagon in FY 2023 than in any year since World War II.
A massive Pentagon budget entails a massive redistribution of wealth, and the primary recipient isn’t “our troops” as US politicians like to say. Instead, most of the DOD budget goes to for-profit companies: 55 percent of the $14.5 trillion Congress gave the Pentagon between FY 2002 and FY 2021 ended up going to private sector firms through contracts.
The portion of annual DOD spending obligated to contracts varied little during this twenty-year span; contract values largely grew and shrunk as overall budgets did. How much federal funding a given Pentagon budget can be expected to privatize, then, can more or less be inferred from its top-line number. This means that a $773 billion DOD budget proposal — as Biden will reportedly offer — is essentially a proposal to privatize $425 billion in public funds.
This doesn’t bode well for the social programs in the FY 2023 budget. The DOD spending bill — despite being just one of twelve appropriations bills that comprise the federal discretionary budget — typically eats up about half of all discretionary funding. Biden’s first budget request looked like this. However, a key difference is that it was proposed soon after the American Rescue Plan passed in Congress and before the collapse of the president’s multitrillion-dollar plan for climate, infrastructure, and health.
In other words, Biden’s FY 2023 proposal will probably look like the typical pre–COVID pandemic budget where “national security” spending crowds out social spending. This wasn’t supposed to happen. Even quintessentially establishment figures like Hillary Clinton argued that the pandemic would bring a “national security reckoning” where nonmilitary threats would finally be taken as seriously as military ones — new priorities that would be reflected in future budgets.
The president has looked increasingly disinterested in that. Biden has gone out of his way to stigmatize social spending but not military spending, even when the latter would’ve been a more appropriate target. For example, Biden blamed the $1,400 stimulus checks for causing inflation, even though the provision’s total cost ($391 billion) was less than the amount Biden’s first and second military budgets will likely divert to for-profit military contractors ($405 billion and $425 billion, respectively).
Moreover, there’s plenty of evidence that the output of social spending — like stimulus checks — reduces hardship and boosts safety, while military spending does not. The Pentagon budget gives life to an imperial architecture that includes 750 military installations abroad and active counterterrorism operations in at least eighty-five countries. Through his budgets and stated policy, Biden has already established that he doesn’t plan on making any substantive changes to the US military’s global footprint, despite empirical evidence indicating this posture promotes insecurity. Studies have found that stationing US military personnel abroad increases the probability of terrorist attacks against the United States; that states experience more terrorism after conducting military interventions; and that overseas bases often escalate geopolitical tensions.
The foreign policy establishment often describes military spending using phrases akin to “investment in our national security,” as if the mere act of funding the Pentagon somehow produces security as a policy outcome. Biden will likely lean on this assumption — that more military spending means more security — to justify his gargantuan FY 2023 Pentagon funding request.
Recent polling suggests that most Americans reject this framing. Congress should, too.
The carpet in one of Iwalani Laybon-McBrayer's bedrooms was removed after a water leak caused mold to grow, she said. (photo: Cindy Ellen Russell/Honolulu-Star)
Hawaii hired a developer to build homes to deliver on a century-old promise of reparations to Native Hawaiians. But the state didn’t inspect construction. Homeowners said they’ve had water damage, air conditioning breakdowns and other issues.
For years, they had rented an apartment in a low-income housing project on Oahu, unable to afford a house amid the island’s booming real estate market. But then, because Steven is Native Hawaiian, they were able to purchase a new residence at roughly half the going rate through a unique homesteading program created a century ago to return Hawaii’s Indigenous people to their ancestral lands.
With the help of a federal grant, the Moniz family bought a three-bedroom house for $281,000 in a West Oahu subdivision built specifically for the program. The couple cried at their good fortune, knowing that thousands of other Hawaiians are still waiting for such an opportunity. “For us, it was like tears of joy,” Sheri said.
The elation didn’t last long.
Within months of moving in, she said, the wall near a window frame in the master bedroom started to swell and mold began growing as water seeped through the frame. Their central air conditioning stopped working. And, when a family member climbed into the attic to inspect the AC system, he discovered that one of the main wood beams supporting the roof was cracked in half.
“How could they have missed that?” Moniz asked.
Dozens of other Native Hawaiian homeowners have found themselves asking similar questions, alleging problems with their new homes, according to a Honolulu Star-Advertiser-ProPublica survey of nearly 80 residents.
The state Department of Hawaiian Home Lands, which administers the homesteading program, has the right to inspect new construction under its contracts with builders. But DHHL never inspected the Monizes’ new home or the hundreds like it that cropped up over roughly the past decade in their subdivision and another one nearby. Instead, the agency relied on the developer it hired to inspect the properties and vouch for the quality of the work.
DHHL is a unique entity: It exists to manage a trust that returns people who are at least 50% Native Hawaiian to their ancestral land, recompense for the government’s history of taking property. And the agency says that inspections conducted by the builder and the city are sufficient to protect the buyers’ interests.
But legal scholars and former DHHL officials disagree with the state agency’s view. They say that as a trustee, DHHL has a heightened legal duty to act in the best interests of Steven Moniz and the thousands of other beneficiaries eligible for homesteads. And by forgoing inspections, they say, the agency is shirking that responsibility, leaving no one who represents only the buyers, some of whom waited decades for homesteads.
“Inviting beneficiaries to put their life savings into homes that the department has never bothered to inspect is not a close question,” said attorney Carl Varady, who along with a colleague has successfully sued the state and DHHL for breach of trust in a separate matter. DHHL “can’t delegate that.”
Moreover, the department has no system in place for tracking complaints once beneficiaries move into their new residences. Instead, DHHL directs homeowners to the private developers who built the homes.
Given questions about the department’s responsibilities to Hawaiians and its approach to construction oversight, the Star-Advertiser and ProPublica undertook to find out how satisfied beneficiary homeowners were. The news organizations canvassed the two most recent homesteading subdivisions in Kapolei, a region of former sugar cane land where much of Oahu’s single-family housing has been built the past several decades. Gentry Kapolei Development began building in one subdivision in 2009, the other in 2018.
Through our survey, we found dozens of homeowners claiming multiple problems with their residences, including some that started within days or months of moving in. Many residents criticized DHHL’s lack of oversight, and some sought help from the agency but were turned away. And while the builder, Gentry, ultimately fixed many of the problems, some homeowners said they ended up spending hundreds or thousands of dollars on repairs not covered by warranties.
“I’ve been running across problem after problem since we’ve been in this house,” said Peter Kamealoha, who described a range of issues in his 2010 Kanehili home, including a cracked air-conditioning duct and cracks in the ceiling. “A brand-new home shouldn’t have problems like this.”
Gentry, which has built more than 14,000 homes in Hawaii over half a century, says it takes pride in delivering quality homes to Native Hawaiians and would not jeopardize its reputation for the sake of small, short-term gains. “It’s an honor to build these homes,” said Gentry President Quentin Machida. A spokesperson also said the company is responsive to homeowner complaints and has performed many “courtesy” repairs beyond the warranty periods, including for Moniz and Kamealoha.
The homeowner experiences are adding to many beneficiaries’ frustration with DHHL’s management of the program. As the Star-Advertiser and ProPublica previously reported, the historically underfunded agency has consistently failed to meet its main mission of getting Hawaiians onto trust-held land on a timely basis. Now, the news organizations have found that the agency, in the eyes of many beneficiaries, is failing even some who get housing.
“They’re telling beneficiaries F you,” said Mike Kahikina, a trust beneficiary and former member of the Hawaiian Homes Commission that oversees DHHL. “We’re treated as fourth-class citizens.”
The newsrooms’ investigation comes as the Legislature considers whether to appropriate a record $600 million to help DHHL address the needs of the thousands of Hawaiians waiting for homesteads, particularly those who cannot afford to purchase their own homes. The proposal was sparked in part by the news organizations’ coverage, including the revelation that at least 2,000 beneficiaries have died while waiting.
“The Beneficiaries Deserve More”
Under the homesteading program, Hawaiian beneficiaries apply for a 99-year land lease from DHHL. Upon award, they then take one of two primary routes to housing: hiring a contractor to construct a home on the parcel, or buying a completed home from a developer hired by the department. The latter is by far the most common option.
Home inspections emerged as a major issue in the mid-1990s after a number of legal settlements with beneficiaries who sued DHHL over allegations of shoddy construction.
In one case, the agency paid out $1.5 million to settle claims involving a 50-home development in Panaewa, located on the Big Island’s eastern shoreline. Homeowners alleged they were given substandard septic tanks, defective concrete foundations and keys that opened multiple houses.
Following the settlements, DHHL said in 1996 it would step up oversight, beginning twice-weekly inspections of construction projects. Then-Director Kali Watson told reporters that the measure was designed to prevent another Panaewa. Today, Watson, who heads a nonprofit developer of affordable housing, still believes DHHL should handle inspections. “They do need people with a lot more expertise to actually monitor construction and make sure it’s done well,” he said in an interview.
In the intervening decades, the agency spent more than $200 million on Kapolei projects, including an unprecedented effort to develop four subdivisions totaling more than 1,000 homes.
Sometimes DHHL served directly as the developer for new units, and in those cases it did continue the inspection system. But other times, like in the two most recently built subdivisions, Kanehili and Kauluokahai, it hired a private developer who was also responsible for the inspections.
Still, the development contracts DHHL signed with Gentry in 2008 and 2018 included a provision giving the agency the right to inspect the homes during construction. The provision was standard in DHHL’s development agreements.
But given the layer of inspections already in place, including those done by the builder and city, DHHL decided not to exercise that right. Doing so “would take additional resources, depriving or reducing service to the other class of beneficiaries, those on the waitlist,” said William J. Aila Jr., the department’s director and chair of the commission that oversees it. DHHL could not say how much it saved by forgoing inspections. Aila also said Gentry had done excellent work in the two subdivisions.
Attorneys versed in trust law, however, say DHHL is obligated to do inspections as part of its legal duty as trustee.
“With respect to the duty of loyalty owed to the beneficiaries, the beneficiaries deserve more,” said Susan Gary, a retired University of Oregon law professor with expertise in trust law. “And I think that’s where the problem is. That’s not something you can delegate.”
David Kauila Kopper, litigation director of the Native Hawaiian Legal Corp., said courts have required the state to protect beneficiary interests in other matters related to trust duties. In 2000, for example, the Hawaii Supreme Court ruled that the state could not delegate to a developer the state’s trust responsibility to determine whether a planned Big Island project protected the customary and traditional rights of Native Hawaiians to access the property for cultural practices. And in 2019, the high court determined that the state breached its trust duty to care for public lands by failing to conduct regular inspections of Hawaii Island property that the military was leasing for live-fire training exercises. In nearly 50 years, the state had only inspected the land a few times. “It all stems from the same trustee obligation,” Kopper said.
When it comes to DHHL and homestead construction, “an argument could be made that by relying on Gentry or the city and putting your hands up and saying, ‘Well, that’s good enough,’ you’re delegating the duty to further the best interests of your beneficiaries to entities that perhaps don’t have that in mind — and that’s not their job,” Kopper added.
DHHL counters that it only has a constitutional obligation to provide beneficiaries with a buildable vacant lot, not a home. Therefore, officials say, the department has no duty to check the houses themselves. Beneficiaries, the agency noted, purchase homes directly from the builder, who must comply with government code under its development agreement with DHHL.
For the two Kapolei subdivisions, Gentry used in-house and third-party inspectors. The company said the level of monitoring, including daily checks by Gentry superintendents, was thorough and matched what is done at its private developments. Additionally, the buyer is able to walk through the home after it’s completed to do a final check.
John Merriman, vice president of Mid Pac Engineering, one of the outside companies used by Gentry, said, “There are multiple people out there who want the quality to be high enough that those homeowners don’t have issues.”
Regarding the Moniz case, Gentry said that if the support beam had been cracked before the home was sold, the problem would have been caught during the inspection process. The company told the Star-Advertiser and ProPublica that it reinforced the beam after the homeowner complained.
“They Did Do a Bum Job”
DHHL says it has no jurisdiction over homeowners’ construction-defect claims because the transaction is between the buyer and the builder, so the department typically doesn’t investigate or track such complaints. Gentry, however, conducts regular surveys of its customers and said the overall feedback from their DHHL projects has been positive.
For our own survey, the Star-Advertiser and ProPublica reached out to the occupants of the roughly 500 developer-built homes in the two newest homestead communities in Kapolei. Over the course of several months, the news organizations sent mailers and emails, made phone calls, knocked on over 100 doors, advertised on social media, spoke at a homeowner meeting and published a questionnaire on the websites for both media outlets. Seventy-eight people responded, including 53 who reported two or more problems or concerns with their residences. The majority of those raising multiple issues were from Kanehili, the older of the two subdivisions. The issues ranged from simply cosmetic — hairline cracks in the ceiling, for instance — to more serious, such as mold growing inside the home or flooring damaged by sewage backups.
Gentry provides a warranty that covers the cost of parts and labor for all repairs during the first year, as well as similar coverage for electrical and plumbing issues for another year. And some manufacturer warranties for specific items extend beyond that, though the length of the guarantees vary and they typically cover parts only.
In an interview, Aila, the head of DHHL, stressed that homeowners have the responsibility to properly maintain their residences. If they don’t do so and the warranties expire, “three or four years later, they can’t come back and make accusations that there’s poor quality because the faucet is leaking and now the cabinet is rotten,” he said.
Dozens of respondents, however, told the news organizations that their problems emerged within about a year of moving in. And many said they were surprised when they had to spend hundreds or thousands of dollars on repairs not covered by warranties in the first few years. DHHL declined to comment on the cases, except to say the house is the responsibility of the homeowner.
One respondent who reported issues was Marlena Brown-Clemente, who said her AC unit stopped working just over a year after moving in. When she called DHHL to complain, she said the agency directed her to Gentry. The company told her the problem was her responsibility, she said, so she ultimately paid about $1,000 to fix it. Still, problems persisted. That was not what Brown-Clemente expected when, in 2016, she inherited her late father’s rights to pick a lot in Kauluokahai, which at the time had no homes. Two years later, she and her husband purchased a four-bedroom, three-bath house there for about $360,000. As luck would have it, the home model was called The Lena, the nickname Brown-Clemente’s father used for her. “I looked at my husband and cried,” she said in an interview. “I said, ‘Whatever you do, you have to get me that house.’”
Gentry said it had no records of calls about air conditioning from Brown-Clemente, and that the system performs well if regular maintenance is done. Brown-Clemente, 49, a full-time volunteer for her church, said the couple hires a company to service the system every six months, like Gentry recommends. “I came into this thinking I’m just lucky to have it, so I didn’t complain too much,” she told the Star-Advertiser and ProPublica. “But now I’m looking back: Yeah, they did do a bum job on my house.”
Air conditioning, which is all but essential in Kapolei during the humid summers, was the most commonly cited problem in the Star-Advertiser/ProPublica survey, mentioned by nearly 40 respondents.
Plumbing was another top concern, flagged by more than two dozen.
Kealii Cabrera, a construction supervisor who bought his new $390,000 Kanehili home in 2020, said his problems started almost immediately. A week after moving in, he said, sewage started backing up through a downstairs shower drain, flooding part of the first floor. Cabrera said he had to relocate his family to a hotel for a month while repairs were made to the flooring and walls.
He said he complained to DHHL multiple times. At first, the department referred him to Gentry, which initially refused to take responsibility for the damage. When conversations with the builder stalled, Cabrera said he went back to DHHL, which told him the department couldn’t get involved. He said he asked the department whether it had a quality control system, and it responded no. “That’s the root of the problem,” Cabrera said.
In response to written questions from the news organizations, a Gentry spokesperson said the company ultimately paid Cabrera over $50,000 to cover cleanup, temporary housing and other costs, after reviewing his request and the circumstances around the incident. The spokesperson described the temporary housing payment as “a very rare occurrence.”
In the Moniz case, Gentry said it performed many “courtesy” repairs beyond the warranty periods, including paying for refrigerator and AC fixes in 2017 and 2018, in addition to reinforcing the beam.
Some respondents to the news organizations’ survey lauded Gentry for its customer service and quality of work. About 18 reported no or only minor problems, including nearly a dozen who said they were very happy with their homes. “It’s like the promised land for us,” John Gora said of the Kauluokahai house he and his wife, Melissa-Ann Gora, purchased last summer after she spent nearly 40 years on the waitlist.
No Forum for Help
If homeowners are unable to resolve disputes over alleged defects with the builder, they usually can’t expect help from DHHL. The agency provides no forum for owners to pursue such claims — even when DHHL served as the developer and oversaw inspections.
Timothy McBrayer and Iwalani Laybon-McBrayer learned that firsthand.
For more than a decade, the couple has unsuccessfully sought DHHL’s help to resolve alleged construction defects that they say have been present almost from the time they moved into their new home in 2007. Shioi Construction, which built the home, disputed their claims and noted that the city and a DHHL special inspector had checked the dwelling.
The couple live in Kaupea, a Kapolei subdivision that was constructed just before Kanehili and for which DHHL served as the developer. The department hired Shioi to build homes and a project manager to monitor the work.
In the first year or two, the McBrayers said they experienced plumbing, mold and electrical problems that they reported to Shioi and DHHL. The problems largely continue to this day. The couple can no longer get homeowner’s insurance.
The McBrayers kept a log showing they sought assistance from 25 different DHHL representatives since 2007, and they said they received multiple assurances that the agency would deal with the situation.
Eric Seitz, their attorney, told DHHL in August that the couple relied on those promises. And DHHL, which supervised the builder, owed the McBrayers a fiduciary duty that went well beyond a normal home transaction, Seitz said. “The department is there to provide a service to Hawaiians, to help them, not merely to sell them a house and say, ‘You’re on your own,’” he said in an interview. “When complaints are brought to them, they have a much deeper and overriding responsibility to help.”
But when the McBrayers tried to take their case to the commission, their request was denied because DHHL lacked jurisdiction, a position the agency took repeatedly with the couple, its records show.
Still, some commissioners have raised concerns. At a February 2019 meeting, one questioned why the McBrayer problems have taken so long to resolve. Another, Zachary Helm, cited the case to highlight the need for greater oversight of construction. As contractors build more homes, “we can do a little better job in monitoring the work these people do,” said Helm, who recently declined additional comment.
DHHL also declined to comment.
“The Wild, Wild West”
Some beneficiary families remain skeptical of DHHL’s ability to remedy their concerns. Kepa Maly, one of the original homeowners in the Panaewa development plagued by problems, recently sold the house he and his wife shared for 30 years. “Our children didn’t want anything to do with it,” Maly wrote in an email. “And given the choice, I doubt we would ever live in a DHHL-developed project again. They’ve demonstrated incompetence and a lack of common decency throughout their history.”
Former Gov. John Waihee, the only Native Hawaiian to serve as the state’s top executive, said the solution is simple: DHHL should hire an inspector or two. The costs, he said, would be negligible.
But Robin Danner, who heads the largest beneficiary organization in Hawaii, says that after decades of state mismanagement, something more is needed: greater federal oversight. That could come in two forms. One, the U.S. government could sue the state for breach of trust, a step it has never taken. Or two, it could further specify how DHHL implements the Hawaiian Homes Commission Act, the federal law that created the program a century ago. As written now, the law is vague about a range of issues, including quality control.
In fact, the homesteading program, which was taken over by the state as a condition of statehood, ran for more than 90 years without a single federal regulation in place.
At the request of Danner’s group, the Sovereign Council of Hawaiian Homestead Associations, the Obama administration in 2016 adopted the first two federal regulations in the program’s history. But neither dealt with housing; one established procedures for land exchanges and the other a process for amending the 1921 law. No more have been adopted since, continuing to leave large sections of the law open to interpretation. And that has enabled DHHL to undermine its fiduciary obligation to beneficiaries, according to Danner, who says the federal government should adopt a rule requiring DHHL to perform inspections.
“When federal regulations are silent, that’s when you get the wild, Wild west,” Danner said.
She and other Native Hawaiians are now looking to President Joe Biden, who has vowed to fulfill “Federal trust and treaty responsibilities” to Indigenous people and appointed Deb Haaland to lead the Interior Department, which oversees the Native Hawaiian land trust. As the first Native American to lead the department, Haaland has pledged to champion Indigenous issues.
But it’s unclear what, if any, action will come from Washington.
Haaland’s office has not made her available for an interview, despite several requests since June. But an Interior spokesperson issued a statement in response to questions from the Star-Advertiser and ProPublica. “Both the state and the federal government have roles in administering the laws governing the Hawaiian Home Lands trust,” he said. “However, the day-to-day administration of the trust and the governance of home inspections are the responsibility of the state.”
The news organizations also reached out to Hawaii’s four members of Congress, but three of them declined comment or did not respond. Sen. Mazie Hirono issued a statement. “DHHL has an important obligation to provide access to affordable, safe housing for Hawaii’s Native Hawaiian community,” she said. “I remain committed to supporting the Native Hawaiian community and working to ensure that both the state of Hawaii and the federal government meet their obligations under the Hawaiian Homes Commission Act.”
Hirono did not address the question of greater federal oversight.
Laybon-McBrayer, who is president of the Kaupea Homestead Association, said the situation leaves families like hers to go it alone. “I just say, ‘Lord, keep us safe,’” she said. “I gotta trust in a higher power rather than a broken system.”
The Dixie Fire burns in Greenville, California, last year. (photo: Stuart W. Palley/The Washington Post)
Latest IPCC report details escalating toll — but top scientists say the world still can choose a less catastrophic path
Unchecked greenhouse gas emissions will raise sea levels several feet, swallowing small island nations and overwhelming even the world’s wealthiest coastal regions. Drought, heat, hunger and disaster may force millions of people from their homes. Coral reefs could vanish, along with a growing number of animal species. Disease-carrying insects would proliferate. Deaths — from malnutrition, extreme heat, pollution — will surge.
These are some of the grim projections detailed by the Intergovernmental Panel on Climate Change, a United Nations body dedicated to providing policymakers with regular assessments of the warming world.
Drawing on thousands of academic studies from around the globe, the sweeping analysis finds that climate change is already causing “dangerous and widespread disruption” to the natural world, as well as billions of people around the planet. Failure to curb pollution from fossil fuels and other human activities, it says, will condemn the world to a future that is both universally dangerous and deeply unequal.
Low-income countries, which generate only a tiny fraction of global emissions, will experience the vast majority of deaths and displacement from the worst-case warming scenarios, the IPCC warns. Yet these nations have the least capacity to adapt — a disparity that extends to even the basic research needed to understand looming risks.
“I have seen many scientific reports in my time, but nothing like this,” U.N. Secretary General António Guterres said in a statement. Noting the litany of devastating impacts that already are unfolding, he described the document as “an atlas of human suffering and a damning indictment of failed climate leadership.”
“This abdication of leadership is criminal,” Guterres added. “The world’s biggest polluters are guilty of arson of our only home.”
Yet if there is a glimmer of hope in the more than 3,500-page report, it is that the world still has a chance to choose a less catastrophic path. While some climate impacts are destined to worsen, the amount that Earth ultimately warms is not yet written in stone.
The report makes clear, however, that averting the worst-case scenarios will require nothing less than transformational change on a global scale.
The world will need to overhaul energy systems, redesign cities and revolutionize how humans grow food. Rather than reacting to climate disturbances after they happen, the IPCC says, communities must more aggressively adapt for the changes they know are coming. These investments could save trillions of dollars and millions of lives, but they have so far been in short supply.
The IPCC report is a warning letter to a world on the brink. The urgency and escalating toll of climate change has never been clearer, it says. Any further delay will force humanity to miss the “brief and rapidly closing window of opportunity to secure a livable and sustainable future for all.”
Unavoidable upheavals
Monday’s report is the second of three installments in the IPCC’s latest assessment for world leaders.
The first section, on the “physical science” of climate change, was published in August and provided a “code red for humanity,” Guterres said at the time, warning that people have already heated the planet at a startling pace.
Humanity has unleashed more than a trillion tons of carbon dioxide since the start of the Industrial Revolution, driving up global temperatures by more than a degree Celsius (1.8 degrees Fahrenheit). Combined with the effects of air and water pollution, habitat loss and widespread poverty, this unprecedented warming is wreaking havoc on natural and human systems alike, the new report finds.
Already, climate change has caused the local disappearance of over 400 plant and animal species. Since 1945, warming-induced severe drought has killed up to 20 percent of trees in North America and parts of Africa.
Activities that drive climate change, primarily the burning of fossil fuels, doubled the area burned by wildfires in western North America between 1984 and 2017. In the oceans, warming has triggered “abrupt and often irreversible” melting of sea ice, bleaching of coral reefs and the demise of kelp forests, the IPCC report says.
Human communities also are dealing with increasingly deadly threats. One study of the world’s 150 biggest cities found that these areas have experienced a 500 percent increase in extreme heat since 1980. An average of 20 million people per year are forced from their homes by weather disasters as the warming atmosphere intensifies hurricanes, adds fuel to wildfires and heightens the risk of cataclysmic floods.
These escalating calamities are beginning to reverse decades of progress in agriculture, infrastructure and health — cutting into crop yields, damaging buildings and transit systems and incubating the microbes and insects that spread disease. Every year, roughly 40 million premature deaths can be attributed to malaria, cholera, heat stress and other climate-related illnesses.
“We are losing living spaces for species, and for ourselves as well, because with climate change, some parts of the planet will become uninhabitable,” Hans-Otto Pörtner, a German climate researcher and an IPCC co-chair, recently told reporters.
Within the next decade, global average temperatures could reach 1.5 degrees Celsius (2.7 degrees Fahrenheit) above preindustrial levels — a threshold scientists say is critical to avoid a series of irreversible changes. World leaders pledged in the 2015 Paris climate agreement to limit warming to “well below” 2 degrees Celsius (3.6 degrees Fahrenheit), with a goal of not exceeding 1.5 C.
Scientific studies have not identified a single point at which climate impacts go from catastrophic to civilization-ending. Instead, the IPCC warns, the risk of crossing certain “tipping points” increases as the world warms beyond 1.5 degrees Celsius.
Yet even if humanity musters the willpower to take drastic action, the world cannot avoid grappling with upheavals that are already underway.
By 2030, the number of children whose growth is stunted by malnutrition is projected to grow by at least half a million, the report finds. The glaciers of Mount Kilimanjaro will be completely gone in 2040. By the mid-century, between 31 million and 143 million people across Latin America, sub-Saharan Africa and South Asia could be displaced by weather extremes.
Some baked-in climate impacts will transpire no matter how vigorously the world cuts emissions and adapts to rising temperatures, the IPCC report says. This finding could bolster vulnerable communities’ calls for compensation to cope with the “loss and damage” that comes with inevitable change.
Nigerian climate activist Philip Jakpor, director of programs for the Lagos-based nonprofit Corporate Accountability and Public Participation Africa, said many Africans have endured tremendous losses caused by global warming. Yet most don’t have the funds needed to recover and rebuild.
Industrialized nations — whose wealth was created using the fossil fuel emissions now warming the planet — have a “historic responsibility” to assist, Jakpor said.
“They should pay for the damages from what they have unleashed on the world.”
A dangerous and unequal future
A key aspect of Monday’s report is global inequity, and how the basic unfairness of climate change crosses continents and spans generations. The more temperatures rise, the wider the chasm between rich and poor will probably become, and the harder it will be for all communities to withstand the intensifying costs.
“That’s one of the clearest things the scientific evidence shows about the impacts of climate change — the injustice of it,” said Saleemul Huq, director of the International Centre for Climate Change and Development in Bangladesh. “It affects poor people more than rich people, but it’s caused by rich people’s emissions.”
Roughly 80 percent of those at risk of hunger in the worst-case warming scenarios will live in Asia and Africa. People in low- and middle-income countries, especially those in rural areas, are most likely to be displaced by extreme weather.
In Africa, which has generated less than 3 percent of the world’s cumulative greenhouse gas emissions, people will endure a 118-fold increase in exposure to extreme heat if the world warms by 4 degrees Celsius (7.2 degrees Fahrenheit). By contrast, heat exposure in Europe — the source of one third of all planet-warming pollution — will go up just fourfold, the report finds.
“The differences in vulnerability around the globe are really striking,” said Rachel Bezner Kerr, a professor of global development at Cornell University and a lead author of the IPCC report. “And it’s not just between the global South and global North, but within countries.”
Higher temperatures are linked to increased rates of violence against women and girls. People with disabilities are less able to evacuate from escalating natural disasters. Indigenous communities will suffer disproportionately as extinctions alter sacred landscapes and deplete traditional food sources.
The disparity is also intergenerational, scientists make clear. Most people currently in power will not live to see the most extreme consequences of continued emissions. It is today’s children whose lives will be defined by the problems their parents failed to solve.
“I have so many emotions,” said Farzana Faruk Jhumu, a 23-year-old Fridays for Future activist from Bangladesh. “Sometimes it’s rage, and sometimes it’s sadness. … I try not to lose hope, but I’m not sure how much hope I have left.”
Members of Jhumu’s generation will see a fivefold increase in extreme events if the world warms 3 degrees Celsius (5.4 degrees Fahrenheit) by the end of the century, the IPCC reports. But under any warming scenario, people over the age of 55 — a demographic that includes the vast majority of world leaders and CEOs — will never endure such frequent catastrophes.
“They are making the decision of our life,” Jhumu said of older generations. “It’s disappointing they are not even seeing the future that is not that far away.”
So far, the world’s richest countries have failed to generate the pledged $100 billion in annual funding to help developing countries build greener economies and deal with the intensifying catastrophes caused by climate change — a promise that was enshrined in the 2015 Paris climate accord.
Wealthy nations must make good on that broken pledge, while at the same time directing a greater share of funding toward adaptation, said Tina Stege, climate envoy for the Marshall Islands.
With sea levels rising at their fastest rates in more than 3,000 years, the low-lying atoll nation is bracing for saltwater contamination of aquifers, the loss of vital fisheries and near-constant floods. Stege said officials in the Marshall Islands have worked hard to develop adaptation plans, but like other resource-strained nations that did little to fuel climate change, it cannot shoulder the costs of worsening impacts without help from the outside world.
“We don’t have the ability to go it alone,” Stege said. “Honestly, no one else does.”
Time to transform
The magnitude of the world’s task to slow climate change was underscored by another escalating crisis this week, as Russian troops invaded Ukraine while representatives from 195 countries worked to finalize the IPCC report.
The head of the Ukrainian delegation, Svitlana Krakovska, continued to participate in the virtual meeting in recent days, even as bombs fell on her home city of Kyiv. The violence only underscored the dangers facing all people as the planet warms, she told an international gathering of negotiators over the weekend, according to two participants.
“Human-induced climate change and the war on Ukraine have the same roots: fossil fuels and our dependence on them,” Krakovska said in an impassioned speech Sunday. “We will not surrender in Ukraine. And we hope the world will not surrender in building a climate-resilient future.”
Whether people can achieve that future is an open question. But the Earth is destined to undergo a radical transformation in any scenario, the IPCC report makes clear. Either humans will change voluntarily — aggressively transitioning away from fossil fuels — or the planet will force a far more painful transformation.
Policies and pledges made at a key U.N. climate summit in Glasgow in November put global temperatures on track to rise between 2.5 degrees and 2.7 degrees Celsius by the end of the century. This would yield a future defined by suffering, one where rich and poor alike face increased deaths from extreme heat and disease, where populations fight over food and water and raging fires and rising seas make entire communities unfit for habitation.
Avoiding such catastrophe “would require substantial and sustained reductions of greenhouse gas emissions,” IPCC scientists wrote in August’s installment.
Humanity has the tools to do so. Technologies that would allow the world to travel, produce energy and heat homes without polluting fuels have been invented. Social scientists have plotted out the policies needed to protect the environment while creating a safer world for people.
“The bottleneck for a sustainable future,” said Pörtner, the IPCC co-chair, “is political will.”
The IPCC authors detail how progress on adaptation “has been observed across all sectors and regions, generating multiple benefits.”
Despite the broken promises of the past, leaders of the world’s developed nations have promised to scale up funding that would allow cash-strapped, developing nations to adapt to climate threats and to create greener economies. Private-sector finance for climate action, including adaptation, has also grown substantially in recent years.
But Monday’s report is unequivocal that current adaptation efforts have been “uneven” and that “there are increasing gaps between action taken and what is needed to deal with increasing risks.” Too often, scientists say, the responses to rising seas, extreme heat and other problems have been reactive and small in scale, in contrast to the far-reaching measures that are warranted. One example: sea walls that actually increase the exposure of a low-lying area by allowing more intense development in the near term.
In many locations around the planet, the report says, the capacity for adaptation is already significantly limited. And as climate change worsens, humanity risks running into “hard limits” on its ability to cope. Tropical cities may experience temperatures and humidity levels too hot for the human body to tolerate. Droughts may become so intense that even crops that have been genetically modified to withstand water shortages will wither.
“The destruction and loss of life is not in the future; it is happening now, today,” said Chikondi Chabvuta, the Malawi-based Southern Africa advocacy leader for Care International.
That is why developed nations must drastically cut their emissions, direct more money toward adaptation, and live up to their climate finance promises, she said.
“It’s time to act,” Chabvuta added. “Otherwise, it’s a world for just a few, and the others are left off to perish.”
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