02 August 22
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Twenty-five thousand cases have been identified thus far—what does justice look like for the victims of Russia’s atrocities?
In this century, the suburbs became a site of bourgeois ambition. Entrepreneurs and high-ranking officials built houses with forest views and in-ground pools. Developers erected high-rises that appealed to young families who were priced out of Kyiv. Traffic jams started to clog the bridges connecting the suburbs to the city. Big-box stores and tiny espresso bars popped up around the towers.
Ludmila Kizilova lived with her husband, Valeriy, near the corner of Vokzalna and Yablunska Streets, at the southern end of Bucha. The land had been in Ludmila’s family for generations. Her mother built the couple’s brick house, which they had coated with honey-colored stucco. Ludmila, who is sixty-seven, chose red metal shingles for the roof—an unnecessary expense, perhaps, but she loved the matte look. Along the perimeter of the property, they had a summer kitchen, a brick toolshed, and a cellar where Ludmila kept her pickled vegetables and jams. In the summer, she sold flowers from her garden at an outdoor market near the railroad station. Valeriy complained that it made him look bad, like she needed money.
On February 27th, Russian troops entered Bucha, and were quickly ambushed by Ukrainian forces. Artillery fire—and, some said, Molotov cocktails thrown by residents—destroyed about a hundred Russian vehicles, including about a dozen on Vokzalna Street. The soldiers burned alive in their tanks as missiles and molten armor flew through the air, striking roofs and shattering windows. Ludmila and Valeriy hid in the cellar. After a few days, the explosions quieted, and Ludmila ventured out to inspect the smoldering Russian tanks. On March 3rd, a group of Ukrainian soldiers raised the country’s flag in front of city hall. Ludmila thought the war was over.
That day, the Russians returned—a column of tanks surrounded by paratroopers on foot. A group of nine local men who were staffing a checkpoint on Yablunska Street took refuge in a nearby house. Only some of them had officially enlisted with Territorial Defense, an all-volunteer force within the Ukrainian military, and it’s unclear how many of them were armed. The next day, they were captured by Russian soldiers, led to a small courtyard beside an office building on Yablunska—secluded just enough not to be visible from a nearby parking lot—and lined up in a row. The soldiers released one of the men, who had agreed to switch sides, and told the rest of them to kneel, with their hands behind their backs. Then they shot them.
Ludmila and Valeriy had heard gunfire throughout the day. They went back to the cellar. It was very cold. Ludmila put on every jacket she had. Valeriy drank whiskey, which he kept offering her. “How can you drink in the middle of this?” she snapped.
After several hours, Valeriy went upstairs into the yard to talk on the phone. From the cellar, Ludmila heard a gunshot. Valeriy didn’t come back. Ludmila waited until dark and then went upstairs. She looked under a spruce tree, where Valeriy said he got the best reception. Then she crawled along the side of the house with a flashlight. She found Valeriy under their bedroom window. Ludmila covered him with a towel and sprinkled sand on the blood that had pooled around his head. Then she returned to the cellar.
The Russians set up command posts in Bucha’s glass factory and in the office building next to the courtyard where they’d executed the men from the checkpoint. Russian tanks rolled through the town, crashing through fences and parking in the front yards of private homes, where troops took up residence.
Ludmila’s neighbor across the street, Vitaliy Zhyvotovsky, stayed in his cellar with his twenty-year-old daughter while more than thirty Russian soldiers lived in his house. They allowed Zhyvotovsky to step outside once a day, to feed his German shepherd, who was locked in the garage, and to empty the bucket that he and his daughter used as a toilet. During Zhyvotovsky’s brief daily outings, he saw at least seven different men, each in civilian clothing, with a white sack over his head, being brought into the house. From the cellar, he and his daughter could hear the sounds of Russian soldiers in their kitchen, beating captives and threatening to kill them.
Iryna Abramova, who is forty-eight, lived with her husband, Oleg, a forty-year-old welder, in part of a small brick-and-cinder house, with a postage-stamp yard and a narrow gate that opened onto Yablunska Street. Iryna’s father, Volodymyr, lived in another part of the house, which faced a side street. On March 5th, as the fighting outside seemed to intensify, Iryna and Oleg grabbed their go bags and their cat, Simon, and went next door to shelter with Volodymyr.
They heard an explosion, some gunshots, and then a man’s voice: “Come out!” Four Russian soldiers in well-fitting uniforms and tan nubuck boots stood in the yard. Oleg and Volodymyr put their hands up as they walked outside. Iryna continued holding the cat. Three of the soldiers led Oleg to the couple’s side of the house, where thick black smoke was billowing from a window. The remaining soldier, who seemed to be in command, held Iryna and Volodymyr at gunpoint. He asked if there were Nazis around. Then he asked about Oleg: Had he fought the Russians? Iryna said that Oleg never even did his mandatory military service.
The man headed toward the street. Iryna followed. The gate was open. The three other soldiers sat on the curb, passing around a plastic bottle of water. Oleg was lying on the ground. Iryna thought that the soldiers had beaten him unconscious. Then she saw black blood in his ear and a puddle of bright-red blood around his head. She started screaming, pleading with the soldiers to shoot her and the cat. One of the soldiers said, “We don’t kill women.” The others, she later said, sat impassively, like they were watching a show.
Iryna Havryliuk and her extended family lived in a neighborhood called Lisova Bucha, or Forest Bucha. Iryna and her mother, Olga, fled on March 5th, ultimately taking refuge in the Carpathian Mountains. Iryna’s husband, Serhii Dukhlii, and her brother Roman stayed behind to keep an eye on Iryna and Serhii’s two dogs and six cats, and to wait to be called up: they were among those who, in the first days of the invasion, had tried to enlist with Territorial Defense but were turned away because there were no weapons.
About a week after Iryna fled, Roman called to say that he and Serhii were all right, though a Russian soldier had shot one of the dogs. A neighbor, the mother of a friend of Iryna’s, was cooking meals for the remaining residents over a fire in her yard. Several days later, Iryna heard from the friend: Serhii and Roman hadn’t come around to eat in three days. No one could check on them, because Russians started shooting anytime a person stepped into the street. Iryna later learned that there were bodies in her front yard. Her twenty-four-year-old son, Yuriy, was serving in Territorial Defense in Irpin. On April 3rd, he managed to get to Bucha. He called his mother: “Yes, it’s Roma and Dad.” There was a third body, too—that of a younger man who had turned up in Bucha, in March, with a pet rabbit. He had fled Irpin and taken refuge in the family’s house. Iryna’s neighbors called him the “rabbit guy.”
In Irpin, Svitlana Kostrykina lived with her husband, Konstantin, who served as a caretaker for a disused children’s sanatorium. When fighting began in their neighborhood, about ten people gathered in the sanatorium’s main building, including their thirty-two-year-old son, Serhii, and Konstantin’s brother, Oleksandr. The space was warm—Svitlana kept a woodstove going—and had a thick-walled central room with no windows. After everyone’s phone died, the group nailed a sheet of paper to a wall and drew a calendar for the month of March. Each night, they crossed out a day, “to show that we had survived,” Serhii said. Svitlana later heard that, by the end of the month, their patch of Irpin had changed hands several times.
On the morning of March 16th, Konstantin made breakfast over a fire outside. Afterward, he filled a plastic bag with food and left to deliver it to a disabled neighbor. Minutes later, machine-gun fire sounded. Oleksandr ran toward the sanatorium fence, shouting his brother’s name. Almost as soon as he was out of sight, there was machine-gun fire again. Then it was quiet.
Two days later, Svitlana and Serhii crept along the sanatorium’s fence, searching for the men. They didn’t find them. After another two days, a neighbor told Svitlana that the men’s bodies were lying in a nearby park where Russian soldiers had set up a checkpoint. Svitlana tied a white rag to her sleeve and walked toward the soldiers. “Stop!” one of them shouted. She explained that she was there for the bodies. “Come back tomorrow,” the soldier said.
“All right,” Svitlana said. “I’ll come back tomorrow with my son and a wheelbarrow. Please don’t shoot.”
The next day, Svitlana and Serhii retrieved Konstantin’s body and rolled it for several blocks. They took the long way, which was paved. Konstantin’s body was hard to fit in the wheelbarrow—his arm kept swinging out. Serhii had spent the previous day digging a grave, making it deep enough for the two brothers and often jumping inside of it to wait out gunfire. The brothers, who were less than two years apart, were physical opposites: Konstantin was tall and lanky, Oleksandr short and round. Svitlana worried that it would be even harder to get Oleksandr’s heavy body in the wheelbarrow. But, when they went back for him, the soldiers said that his body was mined and could not be moved.
The Russian forces occupied Bucha and Irpin for a month. Most of the dead lay wherever the killings had occurred. A resident of Yablunska Street told me that, when he stepped out of his yard on March 8th, he saw a road strewn with bodies and heard music. It was coming from cell phones ringing in the pockets of the dead. The bodies of the eight men executed near the office building remained in the courtyard. The Russians who occupied the building threw trash out the windows, which landed on top of the corpses.
Russian troops withdrew from Bucha on March 31st. Within days, as journalists gained access to the area, the town’s name became synonymous with Russian war crimes. According to Roman Avramenko, the executive director of Truth Hounds, a Ukrainian N.G.O. that documents war crimes, Russian troops have perpetrated similar atrocities, on a comparable scale, in nearly every place that his organization has visited. “I have been doing this for more than seven years, and I still am shocked by the meaningless brutality,” Avramenko said. “ ‘If you are in the range of my weapon, I will shoot at you, on no suspicion of being armed or being a spy.’ Why shoot people? Why throw hand grenades in a cellar where people are hiding? Why not let people bury their dead?”
For the survivors, the thought that the killings are entirely gratuitous is unbearable. Svitlana and Serhii, at the sanatorium, wondered if the Russian soldiers somehow had it in for Konstantin, and shot Oleksandr to eliminate a murder witness. Ludmila surmised that Valeriy, while on his phone call, had scared a Russian soldier who was looting their house. Iryna Abramova thought that the three soldiers had killed her husband to avenge the losses they had suffered on Vokzalna Street. But there is a simpler explanation: this is how Russia fights wars.
Alexander Cherkasov, the former head of the Memorial Human Rights Center, a Russian organization that since the early nineties has documented human-rights violations in conflict zones—and which was shut down by the Kremlin, in the spring—said that the atrocities in Ukraine had direct parallels to those in Chechnya and Syria. I covered the wars in Chechnya, between 1994 and 2001, and saw indiscriminate bombing and shelling of residential neighborhoods, and roads covered with the bodies of civilians. Many families told me of men who were led away by Russian soldiers and never seen again.
In theory, international bodies have the authority to prosecute war crimes wherever and whenever they occur. But Russia has not meaningfully had to account for atrocities committed during earlier conflicts. In Syria, Russian troops fought on the side of the government. Chechnya is legally a part of Russia. In neither case would senior officials be prosecuted domestically, and Russia, as a permanent member of the United Nations Security Council, could veto any attempt by the U.N. to launch a tribunal. Russia also has not ratified the Rome Statute, which gives the International Criminal Court, in The Hague, jurisdiction over its signatory states.
Until recently, Russia was under the jurisdiction of the European Court of Human Rights, but, in March, it announced that it was leaving the Council of Europe, which empowers the court. In 2005, the E.C.H.R. ruled, in a case brought by Memorial, that Russian troops had knowingly bombed a civilian convoy in Chechnya in 1999. The E.C.H.R., which has the power only to order governments to pay monetary damages, imposed fines totalling about seventy thousand euros. But even such minor interventions were rare. “Between three and five thousand people disappeared in Chechnya during the second war,” Cherkasov said. “There is a total of four court decisions, making for an impunity rate of 99.9 per cent.” In Ukraine, Russia is using not only the same tactics as in past conflicts but, in many cases, the same people: a number of senior officers commanding the war in Ukraine fought in Chechnya.
Parts of Ukraine have been under occupation since 2014, when Russia annexed Crimea and began a war in the Donbas region. Occupying authorities have employed forced conscription, kidnappings, detentions, and torture. But international legal bodies have been slow to get involved, and Ukraine has made little progress prosecuting crimes from the earlier phase of the war. Last year, Ukraine’s parliament voted to amend the criminal code to better define war crimes and to outline punishments for them, but the law has yet to take effect.
The modern history of prosecuting war crimes dates back to the Nuremberg trials, which were established by the charter of the International Military Tribunal, signed by the Allies in 1945. The charter codified three types of crimes: aggression (also known as crimes against peace); violations of the laws and customs of war (such as murder, “wanton destruction,” and “devastation not justified by military necessity”); and crimes against humanity. The legal scholar Lawrence Douglas has observed that the definitions of these crimes were hardly clear at the time. Some of the drafters may have intended “humanity” to mean “all of humankind,” while others may have meant “the quality of being human”—in other words, either the scale of the crime or the brutality of it. (The original charter in Russian uses the word “chelovechnost,” which means “the quality of being human,” though later documents have used the word “chelovechestvo,” which means “humankind.”)
The Nuremberg trials were based on a radical new premise: some crimes are so heinous that the international community must step in to restore justice, overruling the principles of national sovereignty. But the trials of the twentieth century—Adolf Eichmann’s, in Jerusalem, in 1961; the International Criminal Tribunal for the former Yugoslavia; and the International Criminal Tribunal for Rwanda—yielded only a few verdicts. The International Criminal Court, which came into existence twenty years ago, has issued arrest warrants for some fifty people, only ten of whom have been convicted. Four have been acquitted, and five people died before a verdict could be reached.
Never before have investigations and trials begun within weeks of the crimes, as they have in Ukraine. A unique set of circumstances has made this possible: Ukraine has an intact judicial system; investigators have had nearly immediate access to crime scenes and evidence, including copious amounts of video footage; and Ukraine is holding several hundred Russian prisoners of war, some of whom are or will be suspects in war-crime investigations.
The first trial took place in Kyiv in May. Vadim Shishimarin, a twenty-one-year-old Russian sergeant, stood accused of violating the rules and customs of war by killing a civilian in the Sumy region. Shishimarin and several other soldiers had lost their vehicles in battle and commandeered a car from a local resident. Almost as soon as they started driving, Shishimarin shot a sixty-two-year-old man pushing a bicycle. In court, Shishimarin, dressed in a hoodie, sat alone in a glass cage, his shaved head down, his hands wedged between his knees. He seemed younger than his age, tiny and ordinary. According to his testimony, two officers had separately ordered him to shoot the man. Shishimarin disobeyed the first officer’s order but then complied with the second. “It was a stressful situation, and he was yelling,” Shishimarin explained.
Douglas has written that the concept of prosecuting war crimes, by eliminating the statute of limitations and by extending jurisdiction beyond national borders, upends “law’s spatio-temporal coordinates.” The Nuremberg trials were designed to prosecute crimes that were not seen as crimes by the people who carried them out. Russian atrocities in Ukraine—their ubiquity, the speed and apparent ease with which they are committed—present the world with the same problem: the Russian troops seem to believe that this is just how war works. The challenge facing prosecutors and investigators is to break the spatial and temporal bubble that has long shielded Russia, and to end what Cherkasov called “a chain of crimes and a chain of impunity.”
The office of the Ukrainian security service (S.B.U.) for Kyiv and the surrounding region is situated in a six-story concrete building near the sealed-off government quarter where the Ukrainian President, Volodymyr Zelensky, has lived and worked since February. On May 31st, I arrived there with a small group from Bucha—three women and a man, each of whom, two months earlier, had seen a photograph on Telegram of the bodies beside the office building on Yablunska, surrounded by refuse, and recognized a loved one.
At the entrance to the S.B.U. building, a guard in a glass booth asked if they had a case number. “We don’t,” Nataliya Verbova, whose husband, Andriy, was killed, answered. Nataliya is tall, with jet-black hair, and she wore black jeans, a black blouse, and a black satin bomber jacket. “We had eight men executed,” she said. “We want to know who is investigating their cases.” A second guard asked if they had an appointment. They did not.
After about twenty minutes, Maksym Romanchuk, a senior investigator, came out to talk to the group. He had a neatly trimmed beard and wore a black Karl Lagerfeld sweater. He assured them that the S.B.U. was prioritizing the case. Kateryna Rudenko, a short woman with brown hair, had recognized her son, Denys, in the photo. She fished in the pockets of her tan windbreaker and pulled out handfuls of individually wrapped candies, which she handed out to the others. It’s a Ukrainian tradition for families of the dead to offer treats, “so it may be sweeter for them up there.”
Romanchuk leads a team of about ten detectives who are currently investigating all the war crimes in the Bucha district, which has a population of some three hundred and fifty thousand. By early June, Romanchuk’s group had documented about twenty-five hundred potential war crimes and was expecting to record a thousand more. Family members asking for updates, and demanding action, were showing up at the S.B.U. almost every day.
The Ukrainian investigators with whom I spoke seemed confident about their cases. The evidence—surveillance-camera footage, bodies of people with their hands tied and gunshot wounds in the back of their heads—seems incontrovertible. All that’s left is to identify the perpetrators and to bring them to trial or to try them in absentia, which is possible under Ukrainian law.
But war crimes differ from domestic crimes not merely in scale. Not every killing of a civilian is a war crime: civilians killed as part of an attack on a military target are collateral damage. Conversely, the killing of a combatant can be a war crime if the combatant was “out of combat,” as was apparently the case with the men from the checkpoint. More important, war crimes are, generally, components of a system, not individual violations, and the ultimate object of an investigation is rarely the person who pulled the trigger.
The Ukrainian government wants to undertake large-scale prosecutions for crimes of aggression and genocide. It claims to have identified more than six hundred suspects in Russia’s political and military leadership, but the clear target is President Vladimir Putin, who, before the war, asserted that Ukraine has no right to exist. Wayne Jordash, a war-crimes lawyer who lives in Kyiv, told me that the atrocities committed in cities like Bucha and Irpin may rise to the level of genocide. But proving Putin’s guilt will be a painstaking process. “In order to prove genocide, you have to prove intent,” Jordash said. “But intent is rarely proven by one unequivocal piece of evidence—rarely do perpetrators say it and do it.” Instead, prosecutors need to piece together a story that shows a clear escalation in the Kremlin’s tactics, so that “by the time you get to Bucha or Irpin there’s no other explanation for the violence other than an intent to destroy.”
As for the crime of aggression, Ukrainian investigators need to establish a chain of command that would lead them to the Kremlin. Perhaps the best-known effort to prove such culpability, in the International Criminal Tribunal for the former Yugoslavia, ended inconclusively: Slobodan Milošević, the presumed mastermind of Serbian atrocities in the Balkans, died before a judgment could be rendered—but not before evidence emerged of a complicated chain of command that distributed responsibility among several of his subordinates.
A relatively recent addition to international criminal law is the crime of starvation, the deprivation of essential civilian resources as a means of war. Ukraine may become the first place where this crime is prosecuted. Starvation appears to have been a deliberate part of the Russian strategy in Mariupol, which was under siege for months. Russian forces are accused of shelling a humanitarian corridor and cutting off the city’s power. Thousands of civilians were killed, many of them owing to a lack of food, shelter, and water.
One of the most difficult crimes to prosecute will be the forced transfer of Ukrainian civilians to Russia. Heading toward Russian-occupied territory is often the safest route out of a battle zone, in part because the Russians provide buses. They then put displaced people through a process called “filtration,” apparently designed to weed out undesirables. Those who pass filtration, which can take weeks, are transported to dormitories or underused resorts in Russia, and largely left alone. Some seek help settling in Russia, while others scramble, with the aid of networks of volunteers, to escape to Western Europe, or perhaps back to Ukraine.
Is the forced transfer of Ukrainians to the country that displaced them, destroyed their cities, and killed their loved ones a crime against humankind? Is it a crime against the quality of being human? According to Tanya Lokshina, the associate director of the Europe and Central Asia Division of Human Rights Watch, the transfer of people to Russia is difficult to classify: “It’s not deportation. People aren’t made to board buses at gunpoint. But the choice effectively amounts to dying under shelling or obeying orders.”
Hannah Arendt, in a 1946 letter to the psychiatrist and philosopher Karl Jaspers, wrote, “Nazi crimes, it seems to me, explode the limits of the law; and that is precisely what constitutes their monstrousness.” Russian atrocities in Ukraine explode the human ability to digest, legally and emotionally, the gratuitous nature of the crimes and their literally unimaginable number.
In late May, the Ukrainian prosecutor general, Iryna Venediktova, appointed Yuriy Belousov to lead her office’s war-crimes effort. Belousov, a former human-rights activist who joined the prosecutor’s office three years ago to devise a strategy to combat law-enforcement abuses, particularly torture, was surprised by his new appointment. “Last year, they added abuses in the penitentiary system to my responsibilities,” he said. “And then this bomb dropped.”
I met with Belousov at an upscale Italian restaurant in a quiet part of central Kyiv. At the time, he had been on the job for less than two weeks. “I have no printable words to describe my feelings about the scale of this,” he told me. Seventy prosecutors are working under him, and his office has identified about twenty-five thousand possible war crimes. “If you have twenty-five thousand projects and tomorrow you are going to have fifty thousand projects, then you have to set priorities,” he said. “But that’s very hard to do, because for any human being the loss of a loved one or a house that’s been destroyed is top priority.”
Another unusual aspect of the response to war crimes in Ukraine is how quickly the international community has offered help. Jordash, the war-crimes attorney in Kyiv, is coördinating an effort, funded by the U.S., the U.K., and the European Union, to set up “mobile justice teams,” units that will pair Ukrainian officials with international lawyers and investigators. Ukraine has not ratified the Rome Statute, but it has accepted the International Criminal Court’s jurisdiction for crimes committed on its territory. The court’s chief prosecutor, Karim Khan, has visited Ukraine and sent his own investigative team. The I.C.C. will likely look for cases that have high-profile potential, either because they are particularly egregious or because they represent clear links to high-ranking Russian officials. This effort will set important precedents and help keep the spotlight on Russian war crimes in Ukraine, but it will not bring justice to most, or even many, victims.
Iryna Havryliuk, in Bucha, told me that she had a case before the I.C.C., and was represented by a lawyer named Achille Campagna. I contacted Campagna, whose office is in San Marino. He told me that when he heard about the crimes in Ukraine he wanted to help; he found a Ukrainian attorney to record Iryna’s account. If the I.C.C. takes up a case in which Iryna is considered a victim, the court could choose to hear her testimony. But Campagna acknowledged that such an outcome is unlikely. Svitlana, at the sanatorium, told me that an S.B.U. investigator who came to interview her said that she “might see a case in The Hague in ten years.”
In the meantime, Belousov has been forced to triage cases, dividing suspected war crimes into more and less important ones. “The human-rights activist in me is dying little by little,” he said. His team in Kyiv is focussed on larger-scale atrocities, such as the bombing of a theatre in Mariupol where hundreds of people were sheltering; at least a dozen civilians were killed.
The bulk of the war-crime cases in Ukraine—individual killings and property destruction—will be managed by regional prosecutors. “There are so many crimes that even the best judicial system in the world couldn’t possibly handle them all,” Oleksandra Matviichuk, the head of the Center for Civil Liberties, which is documenting war crimes in Ukraine, said. “And we’ve never had the luxury of living with the best judicial system in the world.” International experts can help only so much: “If your car is out of gas, not even the best driver in the world is going to get it started.”
On July 17th, Zelensky fired Venediktova, along with Ivan Bakanov, the head of the S.B.U., amid reports of treason in their ranks. Venediktova was the first woman to serve as the prosecutor general in Ukraine. She would apparently remain in government, but the firings were a reminder of how embattled Ukrainian law-enforcement structures have been during the war. Matviichuk told me, “War hasn’t made the judicial system better.”
In early June, I travelled with a group of Truth Hounds to Kryvyi Rih, a mining city in central Ukraine that’s close to the front line. Two researchers, Yaroslav and Stanislav (both of whom asked that their full names not be used), were there to interview people displaced from the east and the south of the country. Truth Hounds has been operating in Ukraine since 2014, documenting war crimes in Crimea and the Donbas. Stanislav, who is thirty-nine, skinny, and tense, has worked as a war-crimes researcher for nearly all of that time. Yaroslav, a twenty-five-year-old academic historian, is quiet, nerdy, and rosy-cheeked. Earlier this year, he was living with his girlfriend in Mariupol; they left the city before the Russian invasion. “We listened to Biden,” Yaroslav said. His girlfriend went to study in Germany, and Yaroslav joined Truth Hounds.
In Kryvyi Rih, they met with Victor Apostol, a retired police detective from the nearby village of Vysokopillia, who was staying in a friend’s apartment with his wife and ten-year-old son. They talked in a gazebo that had burgundy walls and a lot of graffiti—mostly tags interspersed with the popular slogan “Putin khuylo,” or “Putin is a dickhead.” Yaroslav and Stanislav opened their laptops and read back to Apostol a chronology that they had put together after speaking with him for five hours the day before.
Apostol and his family were hiding in the basement of their apartment building when Russian soldiers arrived. They detained Apostol and interrogated him, demanding that he divulge information about Nazis. One of the soldiers shot him in the leg. They then locked him in an outdoor shower stall, where he spent the next four days. For part of that time, Apostol shared the stall with another prisoner, who had also been shot in the leg. After Apostol was released, he and his family fled on bicycles. His wife and son shared one, and Apostol pedalled his with one leg.
As Yaroslav read the narrative, he and Stanislav asked questions and filled in details. They were building a chronology not only of Apostol’s captivity but of the occupation of Vysokopillia. “The Russians set up mortars near the hospital,” Yaroslav read. “They used two armored vehicles and a Kamaz truck to block the road. Which road was it, the one by the hospital?”
“Not the road, no,” Apostol said. “They were blocking the view of the hospital’s yard, so that one couldn’t see where they fired from.”
“Right, we had that firing location marked,” Yaroslav said. “And where did they put the two armored vehicles? You said your neighbor walked by them every day. What was the neighbor’s name?”
The process of reviewing and annotating Apostol’s story took two hours. Later that day, I watched the pair interview a man from a village in the Luhansk region. Terrible things had happened to him—he had escaped with his elderly mother, who suffered a series of strokes along the way, losing her eyesight and much of her speech—but none of it sounded like a potential war crime. Still, the technique was the same: the interviewers wrote down every name, every address, and every other conceivable detail that the narrator could recall.
The work is delicate, and distinct from what criminal investigators usually do. The victim of one war crime is likely also a witness to others, and the interviewer must create opportunities for that information to emerge. “You have to have the time,” Jordash said. “You have to ask people what happened that day but also what happened yesterday. You have to always keep the door open.”
A good interviewer also knows how to end a conversation if it gets too hard. “Sometimes you have to be cunning,” Jordash continued. “You can’t interview a woman about being raped when her husband is next door. You might have to concoct a reason for the woman to travel to the next town, to go to the market, and interview her there.” You also have to know how to package the testimony for legal proceedings. Belousov, at the prosecutor general’s office, said that one of his concerns was teaching prosecutors to work with victims. “A prosecutor is trained to focus on the facts and say little else,” he said. “What kind of empathetic person can do that?” On the other hand, he added, “a prosecutor who has too much empathy will lose his mind.”
Dozens of organizations fielded missions in the suburbs of Kyiv starting in March, and it wasn’t until June that most had moved on to other regions. Some, like Truth Hounds, had years of experience and a highly trained staff. Other groups were relative newcomers. Even so, I never heard about anyone stepping on toes. Nataliya Gumenyuk, a director of the Ukraine-based Public Interest Journalism Lab, which has recently formed groups that record victim and witness statements, told me, “There is enough to go around.”
War crimes happen to the poor. Ukraine’s wealthiest citizens left before the fighting began, and, once Russia attacked, people who had their own cars, connections abroad, and money to travel were more likely to leave than those who didn’t. Some of Kyiv’s most prized real estate was in its western suburbs. But the people whose loved ones were killed—the people who stayed even after the Russians came—were, by and large, from families who had lived in the area for generations. They had been the gentrified, not the gentrifiers.
When I asked these victims what justice would look like for them, they often suggested financial compensation. Iryna Havryliuk talked about the many things that Russian soldiers had stolen from her house. “What about the killings?” I asked at one point. “What about the killings?” she responded. “A lot of people were killed in Bucha.”
Writing in this magazine almost sixty years ago, Arendt seemed to deride the notion that a war crime should be redressed through compensation to the victim. The Eichmann trial, in her view, devolved into a showcase of grievances. The criminal, she argued, “must suffer for what he has done, not for what he has caused others to suffer.”
The authors of war-crime prosecutions spent more time thinking about crime than about punishment. Douglas writes, “It is hard to deny a troubling disconnect between the radical and creative efforts to gain legal dominion over acts of atrocity and the deeply conventional outcome of the process: incarceration.” The traditional rationale for incarceration is that time behind bars reforms prisoners. But surely no one hoped to reform the engineers of the Holocaust. Incarceration takes criminals out of social and political circulation, but war-crime trials, Douglas argues, are an extravagantly expensive means of achieving that relatively modest end. Is the purpose of punishment deterrence? “It seems dreadfully obvious,” Douglas writes, “that the Nuremberg and Eichmann trials did little to deter Pol Pot,” and that the work of the International Criminal Tribunals for the former Yugoslavia and Rwanda have “done little to put a brake on genocide in Darfur.” Or, one could add, to prevent Russian atrocities in Chechnya, Syria, or Ukraine.
In Arendt’s letter to Jaspers, she wrote that, for Nazi crimes, “no punishment is severe enough.” The Nuremberg trials ended with twenty-four death sentences, twenty sentences of life in prison, and ninety-eight finite prison terms. Eichmann was hanged in Israel in 1962. Since then, European countries, including Ukraine, have abolished the death penalty.
Vadim Shishimarin, the twenty-one-year-old Russian who killed a civilian, pleaded guilty and was sentenced to life in prison. Jordash considers that sentence excessive. “He should have gotten time off for plea, for remorse, for the fact that he was taking orders,” Jordash said. “In the International Criminal Tribunal for the former Yugoslavia, he would have gotten five to eight years. War-crimes sentences tend to be incredibly low.”
There are pragmatic reasons for this. Prosecutors need to give prisoners of war an incentive to coöperate. And they need to be able to increase the possible punishment proportionately. “When you capture Putin, is he going to get the same sentence as the guy who shot the cyclist?” Jordash said. At the same time, the impossibility of a punishment that fits the crime creates a sort of wartime discount: “What kind of sentence are you going to give people who held seven people in a cellar, brutalized them, raped them, and then shot them?”
What justice, then, can a war-crimes trial offer if it’s neither a suitable penalty for the criminal nor compensation for the victim? Matviichuk, of the Center for Civil Liberties, suggested that war-crime trials might facilitate a more just end to the war itself. “The Russian regime is trying to win this war by causing intolerable suffering to civilians,” Matviichuk said. “Our duty is to keep reminding the world of the brutality and the scale of these crimes.”
This is an argument for war-crime trials as media, as theatre—and it is an argument for why these trials should be organized right now. “Western politicians keep saying that we should cede part of our territory to Putin,” Matviichuk said. “We have to remind them that they are talking about dooming people to the horrors that we have been documenting.”
After Oleg was killed, Iryna Abramova went with her father and her cat to a friend’s house, in a part of town that hadn’t seen much fighting. For the next three weeks, she kept imagining Oleg’s body being crushed by tanks or ripped apart by dogs. She promised herself that she would try to salvage something, if only a single bone. And then a woman came by and said that the Russians were gone.
Iryna ran to where her house had been. She felt like she was flying, even as she found herself stepping over bodies on Yablunska Street—at least three on the sidewalk, a woman beside a bicycle, plus several in a car that had been shot full of holes. Her house was now a pile of pale rubble, with the burned-out shell of a washing machine on top. Oleg was where the soldiers had left him. The month of March had been cold, so his body was intact. Iryna wrote his name and age and the location of his death on a piece of paper for the body collectors.
Iryna Havryliuk made her way back to Forest Bucha the day after her son’s call. The bodies of her husband, her brother, and the rabbit guy were in the yard. Then she found a charred pile of what she realized were the remains of six more people: her cousin, his wife, their child—Iryna’s godchild—and three members of the family who had been cooking for the others. The bodies were burned and mutilated: the lower half of Iryna’s godson had been sawed off, and her cousin’s legs were chopped off below the knee. The neighbors were also missing limbs. Altogether, in their little corner of Bucha, eleven people from four houses were killed.
Havryliuk stayed with a friend for two days, until the police came and took the bodies. Then she moved back into her house and, with some apprehension, went down to the cellar where she had spent the first days of the invasion. The light of her cell-phone flashlight caught two eyes in the darkness. She was terrified for a moment, then realized that the eyes belonged to the pet rabbit, which had survived.
After authorities collected the dead, families were once again forced to search for them. When Abramova eventually found Oleg—weeks later, in a morgue fifty miles from her home—his body was marked as “unidentified.” Svitlana and a neighbor called every morgue in the area, asking for the location of Konstantin’s and Oleksandr’s bodies. Eventually, they found a morgue that had Konstantin on its list of victims. When her son, Serhii, got there, he was invited to climb into a refrigerated wagon and to look inside body bags until he found his father.
The women now had to think about how they would live. They had lost their breadwinners. Their houses had been looted and damaged. Ludmila’s was destroyed by fire, apparently as Ukrainian soldiers fought to retake the city; she has furnished a sleeping space in what had been the summer kitchen—she scavenged a door, but she has struggled to scrape together enough money to buy a latch. Abramova is staying with her father. Havryliuk’s home was struck by shelling and is missing all of its windows. There may not be a single intact roof remaining in Bucha—the shelling and shooting went on for a month.
One day in late May, I followed Kateryna Ukraintseva, a member of the Bucha city council, to a five-story apartment building on Yablunska Street. In early March, two dozen residents there had crowded in the building’s basement. Many of them found ways to get out of Bucha, and eventually only six men and two women remained. Russian soldiers shot and killed three of the men, in three separate incidents—one in his apartment and two in the building’s stairwell. Now most of the other residents were back. Ukraintseva was delivering a heavy roll of canvas donated by the Red Cross, to spread across the roof of the building—for the moment, this was the best remedy they could find.
During my visits to Bucha, I was surprised at how little construction there was. I saw a single crew, putting up a store where one had burned down, and I heard a bit of hammering here and there. A shipment of modular homes had arrived from Poland, neat-looking metal containers with electrical and water hookups, but there was talk that the hookups wouldn’t work with the local system, and that the houses would be unbearably hot in summer and cold in winter. Most of them appeared to be parked at the train station.
Nataliya Verbova was finally able to return home on May 10th—more than a month after she saw the photograph of her husband’s body. She and other mourners had been visiting the site of the execution every day and laying flowers where the bodies of their loved ones had been. Nataliya usually cried softly when she came. If anyone addressed her, she told the story of her loss in a rushed monotone. Some days, journalists were at the scene, their television cameras set up on an out-of-sight patch of pavement, ready to roll when a mourner showed up.
During the first week of June, an investigator from the S.B.U. came to interview Nataliya and the other women whose husbands and sons had been killed beside the office building. He met them at the scene of the crime. The investigator, who asked me not to use his name, was pudgy and looked to be in his mid-twenties, with a still-sparse beard. He set up a makeshift office on a bench, using an old chair as a desk. He spoke to Nataliya for about an hour, then called out, “Next!” Kateryna Rudenko sat down with him and started dictating her personal details.
Nataliya finally had a case number. She walked toward the low granite steps in front of the office building and sat down next to Olga Prykhidko, whose husband, Anatoliy, was also executed there. He had been a furniture-maker. Olga was the deputy director of a food store that Russian troops had looted and then destroyed. She has two daughters, ages five and eleven. Olga and the girls had left when the Russians came, and Anatoliy stayed back to join Territorial Defense. Olga had checked with the conscription office; Anatoliy was not on the rolls. She worried that this meant she would not receive compensation.
Both women cried as they exchanged stories. “Next!” the investigator called. He was done talking to Kateryna Rudenko. Olga walked toward the bench. Kateryna handed out candies.
Jon Stewart at a rally to call on the Senate to pass the PACT Act on Aug. 1, 2022. (photo: Frank Thorp/NBC News)
Veterans groups and Jon Stewart have protested for days, putting Senate Republicans on the defensive for holding up a bill to provide health care for veterans exposed to burn pits.
While they were in Kandahar, Burch and her fellow service members were exposed to “burn pits, incinerators and poo ponds,” she said. When she left, she battled pneumonia and bronchitis. And in the years since then, she has been “in and out of ERs” and has struggled with intense migraine headaches and shortness of breath whenever she climbs a flight of stairs.
“I actually ended up trying to take my life because I just can’t handle it anymore. I just go crazy in my head,” Burch said at a rally Monday outside the U.S. Capitol.
Burch, a Washington native, is one of dozens of military veterans who spent the weekend protesting Republicans' blockade of a bill that would provide lifesaving benefits for veterans exposed to so-called burn pits and other toxic phenomena.
The veterans camped out on the steps outside the Senate all weekend, braving the heat, the humidity and occasional thunderstorms and sleeping on the hard concrete stairs. Burch said she wanted to camp there, too, but she began feeling intense pain.
The protest by 60 veterans groups — along with comedian Jon Stewart — has put Senate Republicans on the defensive as they’ve struggled for days to explain why they are holding up legislation that would provide much-needed health care for millions of veterans exposed to things like burn pit smoke, Agent Orange and radiation.
At times, lawmakers and officials, including Veterans Affairs Secretary Denis McDonough, joined the protesters to urge the Senate to pass the PACT Act. President Joe Biden, isolating after another positive Covid test, reached out to the vets by videoconference.
Burch said in an interview: “If there is one group that’s not going to give up, it’s us. We have fought tougher battles. We’ve had bloodshed. This is getting over an obstacle because we refuse to be defeated.”
As they told their stories Monday, veterans held signs that read “Senators are lying while vets are dying. Pass the #PACTAct” and “Burn Pits Kill. Delaying the PACT Act Kills. Republicans Delayed and Killed War Veterans.”
Another sign listed the names of all of the Republicans who had joined Democrats in passing the PACT Act in June and then reversed course last week and filibustered the bill: “25 Republicans are killing vets and the PACT Act.” (The bill needs to be passed by the Senate again because of a minor technical change made by the House.)
“As far as I can see, it passed 84 to 14, and then 25 Republicans switched their vote. So to me, that’s the problem,” Stewart told NBC News outside the Capitol. “Switched it without an explanation, switched it without pointing to the bill and saying what was inserted. … Switched it without pointing to the bill and saying where the pork was. … They just keep going, ‘It’s a budget gimmick.’”
Stewart has reserved special ire for Sen. Pat Toomey, R-Pa., who has argued that he is worried that some of the $280 billion in spending over 10 years would be used for other Democratic priorities. Democrats and veterans groups have rejected the argument and accused the GOP of blocking the bill in retaliation for the massive climate and economic deal Democrats struck last week.
Toomey suggested Sunday on CNN that Democrats were using the veterans as political props and took a jab at Stewart, the former “Daily Show” host, calling him a “pseudo-celebrity.” Toomey is demanding a vote on his amendment to add stricter rules for how the money would be spent.
“This is the oldest trick in Washington,” Toomey said. “People take a sympathetic group of Americans — and it could be children with an illness, it could be victims of crime, it could be veterans who’ve been exposed to toxic chemicals — craft a bill to address their problems and then sneak in something completely unrelated that they know could never pass on its own and dare Republicans to do anything about it, because they know they’ll unleash their allies in the media and maybe a pseudo-celebrity to make up false accusations to try to get us to just swallow what shouldn’t be there. That’s what’s happening here.”
Asked whether he was offended that Toomey had called him a pseudo-celebrity, Stewart took the criticism in stride: “That’s the one thing I’ve agreed with throughout this whole process.”
Senate Majority Leader Chuck Schumer, D-N.Y., hopes to bring the PACT Act back to the floor as early as Tuesday, saying veterans “shouldn’t have to fight a second war here at home just to get the health care benefits they rightfully deserve.” And Republicans — facing extraordinary pressure from the American Legion, the Veterans of Foreign Wars, the Wounded Warrior Project and other groups — are signaling that they will be on board this time.
“Yeah, it’ll pass this week,” Minority Leader Mitch McConnell, R-Ky., said Monday.
Don Eggert, 56, an Iraq war vet from Madison, Wisconsin, singled out his home-state senator Ron Johnson, a Republican, in a speech at Monday's rally.
"He has this kind of hypocrisy toward veterans," Eggert said in an interview. "He'll talk about how he supports veterans and how he honors our service, but when it comes to budget time, he's not there to support us.
Republicans "should back down today," he said.
Another Iraq war veteran, James Powers, 37, of Canton, Ohio, has been advocating for assistance for years.
"We're not leaving until this bill passes," Powers, who was exposed to burn pits in Iraq, told his fellow protesters. "There are veterans standing here right now pushing through the pain — physical and emotional — that they've suffered from this."
Wes Moore, an Afghanistan war vet who is the Democratic nominee for governor of Maryland, was among those showing support for the veterans at the Capitol on Monday.
"There's over 6,000 Marylanders who are on the burn pit registry, so this is a very personal issue for folks in the state of Maryland. And also it's very personal because I'm a combat veteran," Moore, a former Army captain, told NBC News.
"So when we come and we see those promises not being kept, it's important that every single American step up and make our voices heard and make sure that those promises are being kept."
The Rev. Tom Capo, of the Unitarian Universalist Congregation of Miami, sits inside the chapel of his church. (photo: Taimy Alvarez/Washington Post)
“I am pro-choice not in spite of my faith, but because of my faith,” Hafner says.
She is among seven Florida clergy members — two Christians, three Jews, one Unitarian Universalist and a Buddhist — who argue in separate lawsuits filed Monday that their ability to live and practice their religious faith is being violated by the state’s new, post-Roe abortion law. The law, which is one of the strictest in the country, making no exceptions for rape or incest, was signed in April by Gov. Ron DeSantis (R), in a Pentecostal church alongside antiabortion lawmakers such as the House speaker, who called life “a gift from God.”
The lawsuits are at the vanguard of a novel legal strategy arguing that new post-Roe abortion restrictions violate Americans’ religious freedom, including that of clerics who advise pregnant people. The cases are part of an effort among a broad swath of religious Americans who support abortion access to rewrite the dominant modern cultural narrative that says the only “religious” view on abortion is to oppose it.
“I think the religious right has had the resources and the voices politically and socially to be so loud, and frankly, they don’t represent the Christian faith,” Hafner told The Washington Post. “Those of us on the other side, with maybe a more inclusive voice, need to be strong and more faithful and say: ‘There is another very important voice.’
“Look biblically; Jesus says nothing about abortion. He talks about loving your neighbor and living abundantly and fully. He says: ‘I come that you might have full life.’ Does that mean for a 10-year-old to bear the child of her molester? That you cut your life short because you aren’t able to rid your body of a fetus?”
The five lawsuits seek to invalidate the Florida law, which went info effect July 1 and bans abortions after 15 weeks, except in cases when the mother could face serious injury or death or if the fetus has a fatal abnormality. It also makes it a felony to “participate” in an abortion, which the suit charges could include counseling someone to have one.
“Since time immemorial, the questions of when a potential fetus or fetus becomes a life and how to value maternal life during pregnancy have been answered according to religious beliefs and creeds,” say the suits, which use identical language except when describing each plaintiff’s faith.
The new law, the suits read, sets “a pernicious elevation of the legal rights of fetuses while at the same time it devalues the quality of life and the health of the woman or girl who is pregnant. It is in direct conflict with Plaintiff’s clerical obligations and faith and imposes severe barriers and substantial burdens to their religious belief, speech and conduct.”
The cases are unusual in that they frame major liberal values through the lens of religious-liberty law. For years, religious conservatives have successfully argued in high-profile Supreme Court cases that their beliefs should allow them to open churches during a global pandemic, discriminate against LGBTQ people and decline to give employees contraception, among other cases.
A lawsuit similar to the clergy members’ was filed in June by a Florida rabbi, who argued the abortion law violates his practice of Judaism. Jewish views on abortion are complex across the ideological spectrum, but law and tradition do not ban it, sometimes appear to require it and do not recognize an unborn fetus as a full legal person. According to that lawsuit, filed last month in Leon County Circuit Court, Congregation L’Dor Va-Dor of Boynton Beach argues that the new law “prohibits Jewish women from practicing their faith free of government intrusion and … violates their privacy rights and religious freedom.”
Abortion patients and health-care providers who support abortion access have made similar arguments in Indiana, where they are challenging that state’s requirement that fetal tissue from abortions and miscarriages be buried or cremated. That suit, which was filed in 2020, said a group of 2016 laws, signed by then-Gov. Mike Pence (R), compel women “to act in accordance with the State’s view of personhood irrespective of their own beliefs about the status of developing human life” and violate freedom of speech, the separation of church and state, and the requirement for equal protection under the law.
At the federal level, the U.S. Supreme Court under Chief Justice John G. Roberts Jr. has ruled more than 81 percent of the time in favor of “religion,” compared with about 50 percent for all previous eras since 1953, according to a study published in April. Still, given the court’s conservative view on abortion, some religious-liberty experts are skeptical that the court will support faith-based arguments for reproductive access.
Douglas Laycock, a professor at the University of Virginia School of Law and an authority on religious-freedom law, said states and the Supreme Court could curtail the efforts among faith leaders who support abortion rights by arguing that there is a “compelling government interest” in protecting fetal life. And the right kind of compelling government interest can be an exception to most constitutional rights, he explained.
“For better or worse, a compelling government interest is whatever five justices say it is,” Laycock said. “It’s a matter of judicial interpretation, not legislative enactment. And pretty clearly, we have six justices who would happily say that the state’s interest in fetal life is compelling” and outweighs the free exercise of religion.
Plus, Laycock said, the justices wouldn’t have taken the monumental step of overturning Roe v. Wade only to turn around and allow “an alternate route to choice, an enormous loophole, or even a small loophole.”
“They may like free exercise, but they oppose abortion more,” he said.
In a statement to The Post, Kelly Stevenson, a spokeswoman for Indiana Attorney General Todd Rokita (R), pointed to the fact that the burial law is neutral and applies equally to everyone. The attorney general said the law “enforces respect for human life” and noted that the Supreme Court in previous cases has said regulations on abortion aren’t necessarily violations of religious liberty.
Asma Uddin, a religious-liberty attorney who worked for the Becket Fund and has written books on religious freedom, said an antiabortion state legislature might back up its “compelling interest” by citing scientific descriptions of young fetuses. Thus far, since states haven’t established what status fetal life has because when Roe was in place, antiabortion arguments could go only so far, Uddin wrote to The Post.
Now that Roe is gone, she said, “we’ll see how this plays out.”
Marci Hamilton, a University of Pennsylvania constitutional law scholar and one of the attorneys for the Florida clergy, said these cases are just a “test” that she will soon take around the country. The Florida Constitution has a broadly worded right to privacy that the state Supreme Court has found to include the right to abortion. The state also has an “RFRA,” or Religious Freedom Restoration Act, that strongly limits when the government can restrict someone’s religious liberty.
“I think every single American should be able to make these arguments,” Hamilton said. Courts have given considerable deference, she noted, to people who invoke faith for a wide range of things.
“It has to be what you believe,” she said. “It may not be part of anyone else’s belief. We want this on the table: You’re violating millions of people’s religious liberty.”
Hamilton said about two-thirds of states that have strongly limited abortion access or will soon do so also have RFRA laws. Those 15 or so states, she said, are where she expects to take her strategy.
Rabbi Barry Silver, who filed the earlier Florida suit, said he thinks he has a “tremendous case — legally, morally, factually.”
“We have a right in Florida to privacy, and they announce this thing in church. It was like a church service,” Silver said of DeSantis’s signing ceremony.
Polling on abortion is complex and can seem contradictory at times. Nearly 60 percent of Americans support a federal law establishing the right to an abortion before a fetus can survive outside the womb.
The Rev. Tom Capo, one of the plaintiffs in the new case and a leader at the Unitarian Universalist Congregation of Miami, said he left the Catholic Church in his teenage years over the issue of abortion. He and his wife, both children of alcoholics, made a decision to wait 10 years before having children to be sure “we had the emotional resources to care for a child,” Capo said.
Before becoming a minister 15 years ago, Capo was a therapist for 30, and in both positions, he has counseled women and families about issues including marriage and childbearing. He said his perspectives are spiritually informed.
“It has to do with the belief in the inherent worth and dignity of every human being,” Capo said. “When I look at a woman who has changes going on within her body because a sperm and an egg have come together, I still think that it’s her body and continues to be her body throughout the pregnancy and that worth and dignity needs to be respected. It has to be her conscience that decides whether that child becomes a person, to have say over her own body and how she chooses to use it.”
It is not yet clear what the states’ arguments might be. The significant religious diversity on the topic of abortion has never been tested in this way.
Rupali Sharma, director of the Lawyering Project, which represents abortion patients, a nurse and an abortion clinic suing Indiana over its fetal burial law, said there has always been a wide diversity of beliefs about when spiritually significant life begins, but that there is a minority intent on “erasing that diversity” that “believes that their conception is the only conception and the only religious conception.”
John Inazu, a professor of law and religion at Washington University in St. Louis, said that even if the courts rule in favor of government interest over religious liberty in these cases, it’s important that judges and Americans see and accept that people who hold views unlike theirs do so sincerely.
When it comes to religious liberty and abortion, Inazu said, “can a pro-life person see the possibility of the pro-choice view?”
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Rep. Henry Cuellar. (photo: Alex Wong/VICE)
The bill would lock workers out of basic labor rights and protections, while preventing states from enforcing higher standards.
The bill is relatively straightforward: it would amend the Fair Labor Standards Act of 1938 (FLSA)—the labor law that established minimum wage and overtime protections—to create “worker flexibility arrangements” whereby workers are no longer treated as employees "for federal tax purposes" and thus not protected by the FLSA’s protections.
“Texas workers have expanded into the gig economy at rapid speed for the flexibility and opportunities that it provides. This legislation promotes that type of independent work,” Cuellar said in a press release. “The bipartisan Worker Flexibility and Choice Act is important to ensure that our gig economy has the room and resources to expand.”
There's no reason to think, however, that only gig companies would take advantage of this law. Former New York Times labor reporter Steven Greenhouse warned the bill "seems to empower any employer—not just gig companies—to tell any worker: if you want to work for me, you must agree we won't follow minimum wage or OT rules—That sucks for workers."
The bill also goes so far as to ensure it "shall supersede all Federal, State, and local laws” and override attempts to modify its amendment of U.S. labor law in an effort to permanently codify these changes. UC Hastings law professor Veena Dubal has argued extensively that this effort is part of a long history in the United States to undermine basic labor laws in sectors that employ predominantly Black and brown workers and so “we must conceptualize these corporate efforts not only as broad attacks on economic security, but also as the insidious development of empires of capital upon the bodies of subordinated racial minorities.” By abandoning basic labor laws and reverting to pre-New Deal regulatory regimes that prioritize “piecework,” the hope is that labor costs can be cut by increasing the amount of unpaid labor each worker does.
“This bill would radically erode fundamental worker protections in the United States to the benefit of big corporations, allowing them to require workers to sign away basic rights as a condition of work,” the National Employment Labor Project wrote in a statement shortly after its introduction. “The bill would also establish a second-tier employment class of disproportionately Black and immigrant workers working in arduous and underpaid jobs without minimum labor protections — growing poverty and racialized economic inequality.”
It may come as no surprise to those familiar with Cuellar that he introduced this bill. In March, Cuellar was the lone Democrat House vote against the Protecting the Right to Organize Act (PRO Act); in Texas, Speaker Nancy Pelosi supported him over a primary challenge even as he’s made it clear he not only opposes labor rights but also abortion rights.
What may be a surprise, however, is who else is backing the bill: the Coalition for Workforce Innovation (CWI), formed in 2019 as part of a wave of corporate pushback to a surge of labor organizing in exploitative industries across the economy. CWI in particular was formed in the wake of advancements in California labor law that threatened to end misclassification of independent contractors across a host of sectors and has since swelled in size. It boasts a sprawling roster of member companies that spans multiple sectors and includes major corporations such as Amazon, Walmart, Target, Google, Apple, Microsoft, Facebook, Uber, Lyft, TaskRabbit, Postmates, FedEx, as well as trade groups such as the Retail Industry Leaders Association.
"The CWI's attacks on workers' rights build on a history of racist carveouts from statutory labor protections that have disproportionately hurt Black workers,'' reads a recent report from the National Employment Labor Project (NELP) and Gig Workers Rising on CWI. "The group is a new front in an ongoing effort by big business to reshape U.S. labor law in its own image—to clear the regulatory path for risk-shifting, exploitative labor outsourcing practices through modern-era ‘carveout’ policies that excise certain workers and employers from labor regulation.”
Many of these carveout policies first came into focus in 2014 as Uber sought to lock certain workers out of employee classification at the state level in a bid to erode rights, protections, and odious labor costs in the way of these firms and profits—and inspired companies to follow its lead. Carveout policies center on creating a new name for a type of worker or company then articulating exemptions for that new category from labor law. Another type of carveout policy operates by weakening state worker classification tests used to determine whether workers are employees or independent contractors, along with legislation that prevents future modifications by state authorities.
Thanks to Uber’s successful roll out of the "transportation network company" category in 2014, over 40 states between 2014 and 2017 introduced carveout policies that stripped drivers of employee rights, benefits, and locked out state regulators from attempting to regulate digital ride-hail platforms. Inspired by TNC carveouts, more app-based carveouts followed. Since 2019, "marketplace contractor" carveouts have been advanced in eight states. Since 2017, at least six states have pursued "uniform worker classification" models that let employers classify workers as independent contractors to undermine rights and protections under federal and state labor laws.
In 2020, app-based companies reached new heights after introducing a "third way" carveout via Proposition 22 which locked app-based workers out of employee classification and barred the state from ever upending the law. NELP notes that Utah, Texas, Georgia, Hawaii, and New Jersey consider additional carveouts that lock workers on digital platforms into classifications that deny them basic rights and protections, as well as access to unemployment insurance benefits.
Three victims died and at least 100 were injured in vehicle ramming attacks against criminal justice reform protesters. (photo: AP)
[Note to TomDispatch Readers: It’s birthday week at my house (though I actually turned 78 earlier in the summer) and so I’m taking a little time off. TomDispatch will be back with a new piece on Thursday, August 11th. Tom]
As gun sales in this country soar — another 43 million weapons bought in 2020 and 2021 alone — while the possession of military-style weaponry is normalized, whether in mass killings or everyday life, American politics, too, is becoming weaponized. If you doubt that, then you weren’t in that Comfort Inn room where, on the night of January 5, 2021, a group of Oath Keeper militiamen stored their weapons so that a “quick reaction force” could potentially transport them to the Capitol the next day.
In the end, as far as we know, none of those weapons made it that January 6th, but others certainly did, as the House January 6th committee made all too clear in its recent hearings. Worse yet, the president of the United States knew perfectly well that some of those he was encouraging to march on the Capitol to protest (or even reverse) his election loss were armed. In political terms, red states have been easing gun laws even as some blue states are cracking down. In California, which has among the nation’s strictest laws (especially when it comes to assault rifles), deaths from guns are approximately 40% below the national average — not that such figures, it seems, matter to most Republicans.
The result: an unequally armed nation at a moment where the weaponizing of our political system seems on the rise. As right-wing extremism grows and guns become ever more commonplace in American life, while the death toll from them soars, the idea that arms, not votes, might someday define the endpoint of an American election is also being normalized.
Oh, and my mistake, I forgot to include in the above description one of the ways in which this country is weaponizing big time. Fortunately, TomDispatch regular Stan Cox didn’t. So, sit back, watch out for the smoke and fumes, and let him explain. Tom
-Tom Engelhardt, TomDispatch
Three Tons of Fascism with a Bull Bar
Fuming at the Rest of Us, Democracy, and the Earth
And keep this in mind: attacks on street protests are just the most recent development in fossil-fuelized aggression. Especially in the red states of America, MAGA motorists have been driving our quality of life into the ground for years. My spouse Priti Gulati Cox and I live half a block south of Crawford Street, the central east-west artery in Salina, Kansas. Starting in the early Trump years, and ever more regularly during the pandemic, we’ve been plagued by the brain-rattling roar of diesel-powered pickup trucks as they peel out of side streets onto Crawford, spewing black exhaust and aiming to go from zero to sixty before reaching the traffic light at Broadway. By 2020, many of these drivers were regularly festooning their pickups, ISIS-style, with giant flags bearing slogans like “Trump 2020” and “Don’t Tread on Me,” as well as Confederate battle flags. Some still display them, often with “F*** Biden” flags as well.
If you live in flyover country as we do, you come to expect such performances. And don’t think that I’m just expressing my own personal annoyance about an aesthetic affront either. Fueled by diesel or gasoline, and supercharged by what political scientist Cara Daggett has labeled “petro-masculinity,” those men in big, loud vehicles serve as the shock troops for a white-right authoritarian movement that threatens to seize control of our political system. Recall the “Trump caravan” that tried to run a Biden campaign bus off the road in Texas just before Election Day 2020. Or the “Trump Trains” of pickups carrying men with paintball guns, one of which attacked Black Lives Matter protesters in Portland, Oregon.
Long forgotten now by most of us, those hapless North American truck convoys, some of which converged on Washington, D.C., last spring, might as well have been scripted by the writers of Seinfeld. To all appearances, they were protests about nothing — other than a vague sense of grievance personified (or truckified). Still, the drivers did manage to cause serious mayhem, assaulting the residents of two capitals, Ottawa and Washington, with diesel fumes, daylong horn blasting, and bellicose conduct. They paralyzed downtown Ottawa for almost a month (and cost the government there more than $36 million). Some drivers in the cross-country U.S. convoys physically assaulted counter-protesters, cyclists, and motorists. There was one bright spot, though: one day, a man on a cargo bike got in front of a line of semi-cabs and pickups and slow-pedaled through Washington’s narrow side streets, leaving the invaders no alternative but to creep along behind him for what seemed like forever and a day.
The convoy truckers, however, paid little price for the havoc they caused. Indeed, vehicular aggression and violence increasingly goes unpunished. On June 24th in Cedar Rapids, Iowa, a man aimed his pickup truck at a group of women protesting that morning’s Supreme Court decision reversing Roe v. Wade. When his vehicle first came into contact with them, the women stood fast, and grabbed its bull bar — the steel armoring designed to protect the grille against livestock, but used more often these days to intimidate humans. With a yell, he plowed ahead, driving over one woman’s ankle and giving another a concussion. When the police arrived, they interviewed the driver, but they have yet to charge him or even identify him publicly. He was probably shielded by a law the Iowa legislature passed in 2020 immunizing drivers who run into or over protesters, if they simply claim to have been fleeing in fear. Ominously enough, Florida and Oklahoma have passed similar laws essentially encouraging such acts.
Are You What You Drive?
Here in the heartland, white nationalism feeds on gas, gunpowder, oil, and testosterone. Ranchers, wheat-growers, oilfield roughnecks, firefighters, loggers, hunters — in short, the very kinds of guys who populate today’s ads for pickup trucks — are widely viewed as the real Americans. Most pickups today, however, are found not out on the range but on city streets and Interstate highways, sporting empty beds and clean tires, with their drivers settled into cushy captain’s seats. For many of them, big pickups are no more than a non-utilitarian cultural statement and, in today’s culture, that means a political statement, too. (With so many luxury options on offer, a new truck can also be an extravagant statement, since their average price now exceeds $60,000.)
When I was reading High and Mighty, Keith Bradsher’s classic book on SUVs, in the early 2000s, there was as yet no correlation between the supersizing of personal vehicles and political preferences. It was mostly about armoring up against crashes and crime. A few years later, when even more bloated trucks and SUVs with abundant creature comforts started being advertised as “living rooms on wheels,” they still had no strong political associations. Over the past few years, however, manufacturers have begun capitalizing on MAGA-world belligerence by pumping up the road-ruling mystique of those vehicles. On this topic, I won’t even try to match the bracing prose of Angie Schmitt, the author of Right of Way: Race, Class, and the Silent Epidemic of Pedestrian Deaths in America, who wrote for Bloomberg News last year:
“Pickup truck front ends have warped into scowling brick walls, billboards for outwardly directed hostility… [T]he height of the truck’s front end may reach a grown man’s shoulders or neck… That aesthetic can be detected not only in the raised ‘militarized’ grille height of pickup trucks, but also the popularity of aftermarket modifications like blacked-out windows and ‘bull bars’ affixed to the front end.”
Some pickups and full-size SUVs now approach the dimensions of World War II-era tanks and are advertised accordingly. Ford used the term “military-grade, aluminum-alloy” five times in a single press release for its F-150 pickup. This supersizing, as well as armoring, has had predictable results. For example, in another article, Schmitt observed that
“passenger and driver deaths have remained mostly stable over the past decade while pedestrian fatalities have risen by about 50 percent. From 2019 to 2020, pedestrian deaths per vehicle miles traveled increased a record 21 percent, for a total of 6,721 fatalities. This astonishing death toll has multiple causes, but the scale of the front end of many pickup trucks and SUVs is part of the problem, and that’s been obvious for quite a while.”
The politicization of big-box personal vehicles is now almost complete. By the 2020 election campaign season, few drivers, left or right, needed bumper stickers to tell the world which candidates they supported. A month before the election, Forbes summarized survey data illustrating the relationship between party affiliation and vehicle ownership. Of the models most disproportionately preferred by Democrats, liberals, and progressives, 14 were sedans or crossovers, three were trucks or full-size SUVs, and two were hybrid or electric vehicles. The Honda Civic sedan topped the list.
I’m sure at this point you won’t be surprised to learn that the vehicle preferences for Republicans and other conservatives were almost exactly the reverse of that. Of their top model preferences, 14 were trucks or full-size SUVs while only three were sedans or crossovers. None were hybrids or electric vehicles. Those with the strongest Republican/conservative associations were the Ford F-250 and Ram 2500 pickups, both weighing in at more than 6,000 pounds.
“Pollution Porn”
A couple of weeks before the 2020 election, Priti and I were cruising south along Santa Fe Avenue, the main street in downtown Salina. As we approached Crawford, we saw that a long, noisy Trump train was passing through the intersection, headed west. Decked out with flags, balloons, and other regalia, the parade of trucks stretched out of sight in both directions. When a temporary gap opened in the queue, we took a right turn toward home. In this way, our 2006 Civic hybrid (I know — too trite) involuntarily joined the procession. With a huge, flag-bedecked tailgate towering over our windshield, a five-foot-high bull bar looming in the rearview mirror, and a cacophony of horns drowning out our laughter, we crept home, where we bailed out of the parade. Though we faced no hostility ourselves, that was probably because the drivers on either side of us could barely see us.
Compared with many of the 2020 Trump trains, Salina’s version proved remarkably mild-mannered. But all such white-right parades, including the farcical “Boaters for Trump” regattas, also manage to do a remarkable job of making a relatively small number of Americans seem like a big crowd. There were far more people in Salina’s 2020 Black Lives Matter march than in that truck parade. But when you surround a modest number of people with tons of steel and aluminum propelled by loud internal-combustion engines, you’ve got an impressive spectacle in an ominous sort of way. The forests of flags only add to the fascist aura that surrounds the political use of such hulking vehicles.
Until James Alex Fields, Jr., drove his Dodge Challenger into a non-violent group of protesters in Charlottesville, Virginia, in 2017, killing Heather Heyer, the tactic of crashing into crowds was best known as a terror tool used by Islamic State sympathizers, primarily in Europe. At the time, the means of aggression preferred by American pick-up drivers was something called “rollin’ coal.” It involved modifying a truck’s fuel system so that the driver could blast large clouds of thick, black diesel smoke from its tailpipes or smokestacks.
Often, coal-rollin’ was pure performance, a display of rebellion against anything in the culture that smacked of concern for climate change. It was, as Vocativ labeled it in 2014, “pollution porn.” But even then, under the surface was the potential for so much worse. In recent years, more aggressive drivers have taken that stunt to its logical conclusion by engulfing pedestrians, cyclists, electric vehicle or hybrid drivers, and other perceived enemies in toxic black clouds.
As Cara Daggett put it:
“A lot of things are attached to fossil fuel culture because they are symbolically a part of a certain way of life or an identity. It’s no longer possible to operate in the world and not understand that fossil fuels are violent. [Rollin’ coal is] a kind of spectacular performance of power.”
Psychology professor Joshua Nelson suggests that such an extravagant, showy combustion of fuel represents an attempt by white male drivers in particular to compensate for two new realities – that men like them can no longer feel they’re part of an all-powerful American clan and that what awaits us all, however hard it may be to express, however much they may want to repress the very idea, is impending doom from fossil fuels destroying this planet. As Nelson puts it: “There is nothing more possibly traumatizing (and requiring psychologically defensive operations) than potential global destruction and annihilation, especially when one is forced to consider [his] own role in this impending apocalyptic disaster.” Whether such “psychologically defensive operations” grow out of a sense of guilt, inadequacy, or something else entirely, they play out the same way — as aggression against the rest of us.
Standing Up to the Men in Trucks
One characteristic news photo from the violent conflicts of recent times — whether in Afghanistan, Libya, Nigeria, Syria, or elsewhere — has been of pickup trucks loaded with armed men. The U.S. hasn’t made it there — not yet anyway. But it’s hard to doubt that (thank you, Donald Trump!) ever since January 6, 2021, when so many right-wing militia members broke into the Capitol, some of them armed, we’ve been living through an attempted takeover of our country by members of one of the two major parties. And in 2022, it will hardly surprise you to know that its supporters own more guns and trucks than the rest of us.
This fits with trends pointed out by Rachel Kleinfeld, a senior fellow at the Carnegie Endowment for International Peace. She’s studied the use of violence by a growing number of political parties in a wide range of countries and is now tracking America’s upsurge in militia activity, too. She recently wrote, “Even if Trump passes from the scene, the embrace of violence and intimidation as a political tactic by a faction of the GOP will cause violence of all types to rise — against all Americans.”
Ultra-MAGA elements in legislatures and the courts are already gutting our right to preserve a livable climate, ensure reproductive rights, and vote, even as they create new rights to own weapons of war and put them to deadly use. Usually, those weapons are AR-15s or other firearms, but they can also be tank-scale personal vehicles wrapped in military-grade alloy, with an armored front end.
Big trucks, aggressively driven, straddle the borderline between a democracy in crisis and a country (and world) facing a climate emergency of the first order. They guzzle fuel, spew pollution, and degrade our quality of life. With the paramilitary wing of the anti-democracy, anti-Earth GOP at the wheel, such vehicles portend even worse environmental harm to come. If the far right prevails, its politicos will choke off any state or federal efforts to phase out fossil fuels. If, using means legal or not, they consolidate their power over the Supreme Court, Congress in 2022, and the White House in 2024, they will be spewing the political version of rollin’ coal and are guaranteed to smother the possibility of climate action, probably long enough to make runaway global heating inevitable.
Keeping the anti-democracy party out of power will require massive get-out-the-vote efforts in 2022 and 2024, and record-breaking turnouts in the streets will undoubtedly be needed as well. In truth, there are many more of us than of the fascist wannabes in this country. Like the brave women in Cedar Rapids, we must neither surrender the public square to the extremists nor allow them to bestow rights on vehicles and fossil fuels while revoking rights that belong to us and to the rest of nature.
Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer’s new dystopian novel, Songlands (the final one in his Splinterlands series), Beverly Gologorsky’s novel Every Body Has a Story, and Tom Engelhardt’s A Nation Unmade by War, as well as Alfred McCoy’s In the Shadows of the American Century: The Rise and Decline of U.S. Global Power, John Dower’s The Violent American Century: War and Terror Since World War II, and Ann Jones’ They Were Soldiers: How the Wounded Return from America’s Wars: The Untold Story.
People gather outside the Tembisa Customer Care Centre after protesters set it on fire after a night of riots caused by angry community members demanding better service delivery in Tembisa, August 1, 2022. (photo: AFP)
Protests over poor services occur regularly in South Africa, which is battling some of the highest unemployment and crime rates in the world.
On Monday, residents angry at the high cost of basic services barricaded roads with burning tyres and set ablaze a municipal building in Thembisa township, northeast of the financial hub, Johannesburg.
Authorities said two people were killed in alleged police shootings after the protests broke out in the morning.
“It’s alleged they have been shot,” local municipal police spokeswoman Kelebogile Thepa told AFP.
Later in the evening, Thepa said two more bodies had been found near the entrance of the burned building – bringing the total death toll to four.
Police were yet to confirm what caused the deaths, she added. Investigations were under way.
Protests over poor services occur regularly in South Africa, which is battling some of the highest unemployment and crime rates in the world. Power cuts have also become frequent in recent months, as national utility company Eskom battles high debts and a labour strike.
The latest bout of protests came less than two weeks after former President Thabo Mbeki warned the country could see an uprising similar to the Arab Spring, triggered by mounting discontent.
Last month, Mbeki accused President Cyril Ramaphosa of failing to deliver on his promises to tackle widespread poverty, inequality and unemployment, which stands at more than 34.5 percent, with youth joblessness at nearly 64 percent.
The situation has been worsened by the rise of food prices occasioned by disruptions in wheat supply as the Russian invasion of Ukraine continues.
A year ago, South Africa saw an outbreak of the worst violence the country has experienced since the end of the apartheid era three decades ago. The large-scale rioting and looting then left more than 350 dead.
The 10 days of rioting followed the imprisonment of former president Jacob Zuma for snubbing corruption investigators. They happened mainly in KwaZulu-Natal province but also in Gauteng where Johannesburg is located.
Managers in the EPA's New Chemicals Division have refused to assess the risk of cancer and other harms of chemicals deemed to be 'corrosive.' (photo: The Intercept/Getty)
Managers in the EPA’s New Chemicals Division have refused to assess the risk of cancer and other harms of chemicals deemed to be “corrosive.”
The theory behind the EPA’s decision not to calculate the risk of repeated exposure to certain corrosive chemicals — or to remove information about those risks — is that after the unpleasantness of the first exposure, people will avoid contact with the chemical in the future. But according to the group of health assessors who have been providing The Intercept with insider accounts of corruption in the EPA’s chemical assessment process over the past year, this logic is flawed for many reasons. Perhaps the most significant problem is that people may not actually experience or notice any effect from an initial exposure — either because the chemical has been incorrectly deemed corrosive or because it is corrosive only at concentrations higher than the levels to which people are exposed. Neither circumstance has any bearing on whether the chemical presents other risks. Workers may also be forced to have repeated contact with chemicals to stay employed.
“They’re trying to say that if a chemical is corrosive, people will just avoid it, which is nonsense,” said William Irwin, an EPA toxicologist who is among the small group of scientists that has been calling attention to flaws in the agency’s assessment of new chemicals. “That’s not the way things work. People have to do their jobs.”
In some cases, according to the complaint, high-level EPA staff members have argued against the calculation or mention of chemicals’ systemic risks based on the idea that workers will be protected from their dangers because they will wear personal protective equipment. But according to Sarah Gallagher, one of the whistleblowers and a human health assessor in the EPA’s Office of Pollution Prevention and Toxics, that’s not a safe assumption.
“PPE gives some protection, but it is often not complete, and some chemicals can sneak through gloves. In order to get the best protection, you need to ensure that the chemical does not readily break down the gloves so that they lose protectiveness,” said Gallagher. “There are tests for that, but my understanding is that the New Chemicals Division is not ensuring the right gloves are used for new chemicals.”
In an emailed response to questions from The Intercept, Timothy Carroll, the EPA’s deputy press secretary, confirmed that, for some corrosive chemicals, assessments do not include health effects beyond the corrosivity. “When occupational exposures from a chemical EPA finds to be highly corrosive are expected to occur, meaning it would immediately burn the skin/lungs, chronic effects that could occur from prolonged exposure to that chemical would not be expected to occur and therefore the risk assessment would quantify the corrosivity risk alone.” But in other cases, the EPA does consider other health risks, according to Carroll. “In cases where a chemical is not expected to be sufficiently corrosive to support an assumption that prolonged exposures would not occur or there are non-occupational uses that are described in the [pre-manufacture notice] or reasonably foreseeable that could result in prolonged or repeated exposures, EPA would characterize risks beyond corrosivity.”
Carroll’s email also said that the agency had recently changed its approach to addressing personal protective equipment, such as respirators and gloves, in chemical assessments. “In order to ensure that neither prolonged nor repeated exposures to the chemical would occur when the chemical begins to be manufactured, EPA would require the use of PPE or other measures during the risk management phase for that substance,” said Carroll. “This is a shift away from the last Administration’s policy of assuming that workers always have access to and correctly use PPE. Under the Biden Administration, in conducting initial risk assessments for new chemicals, EPA does not assume workers are utilizing PPE when calculating risks.” When the EPA does require PPE, it issues a special order that limits that production and use of the chemical, according to Carroll.
A Single Exposure
Another hole in what the whistleblowers have called the “burned-finger hypothesis” is that, for some chemicals, a single exposure can cause irreversible effects. So even if someone’s eyes or skin are irritated or burned on a first encounter, other serious harms could already have occurred. Consider a new chemical whose assessment was finalized in March: The company that submitted the chemical for review did not provide the agency with studies of its reproductive health effects. So, as is often the case, the health assessors had to resort to studies of structurally similar chemicals, or analogues, which often have similar health effects, to glean any information about the risks it might pose.
Studies of one analogous chemical showed that a single exposure could cause mice to “resorb” — or essentially miscarry — their fetuses. In fact, just hours after a single exposure to the chemical, more than 63 percent of pregnant mice experienced fetal death. Yet the risk assessment of the new chemical, which was finalized on March 7, did not mention the study or the possibility that the new chemical might cause miscarriage in humans. Instead, it noted that “the corrosiveness of the new chemical substance” limited repeated exposures — and found the chemical “not likely” to present an unreasonable risk to health.
While the assessment did not calculate or note the miscarriage risk on the grounds that the chemical’s corrosivity would cause people to avoid coming into contact with it, the whistleblowers also determined that workers exposed to it would probably not experience any skin damage — and thus were unlikely to realize that it was corrosive.
Like the vast majority of the other chemicals being reviewed by the EPA’s new chemicals program and described in this series, the information regarding that chemical was submitted to the agency as confidential business information. Although the health assessors know the product’s exact structure and name, they could suffer severe penalties if they made that information public.
Cancer Risk
The health effects that are omitted from assessment on the grounds that chemicals are corrosive include cancer. This was the case for a compound that the New Chemicals Division was reviewing in March 2021. There were clear reasons to suspect that the chemical, which is to be used to produce other chemicals, was a carcinogen. And information submitted by the company made it clear that workers and people living near the factories where it is used could be exposed. But the assessment, which has not yet been finalized, does not include the calculations of any systemic health risks, in part because the chemical was known to irritate the eyes and skin. Instead, the assessment notes that the “corrosivity of the new chemical substance may be protective of any potential systemic effects.”
This chemical was also submitted to the EPA without any heath data, so the health assessors had to resort to analogues to glean information about the risks it might pose. When they did, they found that the structure alone raised serious concerns. Similar chemicals cause cancer, liver effects, and neurotoxicity. The whistleblowers then used a close analogue — a chemical called benzyl chloride that the EPA had deemed a “probable human carcinogen” in 2008 — to gauge the likelihood that the new compound might cause cancer. The results were alarming: One out of every 118 people exposed would be expected to develop cancer. In comparison, the EPA usually considers one cancer in every 100,000 people exposed the upper limit of acceptability.
But rather than using benzyl chloride to predict the carcinogenicity of the new chemical, without explanation the assessment relied on another analogue to gauge the new chemical’s cancer risk, as the whistleblowers point out in their complaint. That chemical had not been subject to a repeated-dose carcinogenicity study, which the agency requires for assessing the likelihood that a chemical will cause cancer.
If the EPA did not want to base its assessment of the new chemical on benzyl chloride, the analogue that had already been found to be a probable carcinogen, it could have asked the company to perform its own cancer studies on the new chemical. Or it could have searched for another appropriate analogue that had been assessed for its cancer-causing potential. Or, if it didn’t obtain adequate evidence of its safety, the agency could have prohibited the company from using the chemical. Instead, the latest version of the assessment deemed this chemical, too, “not likely to present an unreasonable health risk.”
Fundamentally Inaccurate
In March 2020, Gallagher, the human health assessor, found that another chemical presented risks to workers. Experiments showed that one analogous chemical caused rats to have tremors and behave aggressively. Another analogue caused reproductive effects in male rats and mice. Information about both hazards were included in a version of the assessment that was finalized on April 8, 2020.
But a month later, a manager in the New Chemicals Division created a new assessment. In this version, the information about the hazards had been deleted. Instead, in a section of the document headed “workers,” the document explained: “Risks were not evaluated for workers via repeated dermal exposures because dermal exposures are not considered likely due to the corrosivity of the new chemical substance.”
According to the whistleblowers, this statement is false. “It is intentionally misleading for EPA to put into a report that we did not calculate risk when we did,” said Martin Phillips, a chemist and human health assessor who works in the EPA’s Office of Pollution Prevention and Toxics. “It’s lying about what we did. It’s not just that we did the calculations. We did the calculations and found risks, and then they got rid of them and said that we didn’t calculate them. It’s fundamentally inaccurate.”
According to Public Employees for Environmental Responsibility, the organization that’s representing the whistleblowers, the statements may be a violation of the law. “I hope that the inspector general evaluates whether these false statement are violations of the criminal statute,” said Kyla Bennett, director of science policy for PEER. “EPA is not allowed to make knowingly materially false statements.”
To further complicate the assessment, a quick check of the pH of the chemical done by Gallagher revealed that it was neither acidic nor basic enough to cause skin damage. In other words, the chemical wasn’t corrosive after all. Gallagher repeatedly raised the issue with her colleagues after she made the discovery, but the assessment was not corrected. It was finalized on May 29, 2020.
In the emailed response to questions from The Intercept, the EPA’s Carroll wrote, “EPA is committed to ensuring the highest level of scientific integrity across the agency and takes seriously all allegations of violations of scientific integrity. Additionally, EPA is committed to fostering a healthy work environment that promotes respect between all levels of staff, supports work-life balance, provides for an open exchange of differing scientific and policy views, and achieves our mission of protecting human health and the environment. Where scientists identify a difference in scientific opinion, EPA has a transparent process that allows for expression, elevation, and resolution.”
The email went on to say, “The agency will fully cooperate with any and all future investigation by the Office of Inspector General.” The EPA inspector general is currently investigating numerous complaints previously filed by the whistleblowers.
An Ongoing Problem
For at least two years, the whistleblowers have repeatedly argued against the use of corrosivity to dismiss other health hazards — a strategy they say is in keeping with other EPA efforts to make dangerous chemicals seems safer than they are. Since The Intercept began reporting on their complaints more than a year ago, the EPA has taken several important steps to improve the regulation of new chemicals.
But according to the whistleblowers, the dismissal of serious health concerns with the mention of corrosivity continues. Just two weeks ago, Kyoungju Choi, a toxicologist in the New Chemicals Division, was asked to assess a compound. She noted that an analogue had developmental and reproductive effects on rats. But per the instructions of a senior staff member in her division, she was offered the option of dismissing these hazards because the chemical is corrosive.
“Then there would have been no other hazards,” said Choi. Although she felt pressure to dismiss the health concerns, Choi opted instead to lay them out in the document. While the assessment is still in draft form, she is hopeful that her warning will survive the EPA’s fraught assessment process and go on to protect workers and their children from harm.
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