05 November 22
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Merrick Garland’s latest policy includes plenty of vague language that could still make it relatively easy for prosecutors to go after reporters’ sources.
But it turns out that there are loopholes in the so-called Pirate’s Code.
“The code is more what you’d call guidelines than actual rules,” pirate Hector Barbossa explains, as he violates it.
I was thinking about Barbossa’s great line when I read Attorney General Merrick Garland’s new media guidelines, laying out when the Justice Department can go after journalists to identify their sources during criminal investigations into leaks of classified information.
Since the new policy was announced last month, Garland has been praised by media experts and journalists for imposing tight new restrictions on the government’s ability to target reporters in leak investigations.
“This is a watershed moment,” said Bruce Brown, executive director of the Reporters Committee for Freedom of the Press. “The new policy marks a historic shift in protecting the rights of news organizations reporting on stories of critical public importance.”
Fred Ryan, the publisher of the Washington Post, added that “the new protections for the news media … deserve recognition and gratitude.”
But Garland’s new policy includes plenty of vague language that could still make it relatively easy for eager prosecutors to go after reporters’ sources. In fact, Garland issued the policy even as the Justice Department is seeking to prosecute Julian Assange, the WikiLeaks founder; the Assange case suggests that there are already loopholes built into Garland’s new guidelines.
Worse, the policy lacks the force of law, and can be changed or ignored by the next attorney general.
Skepticism is warranted when it comes to the Justice Department and its media guidelines. After all, Garland felt compelled to issue the latest set of guidelines because the earlier ones, issued in 2015 by Eric Holder, the Obama administration’s attorney general, offered only paper-thin protections for journalists.
Holder’s guidelines were also met with effusive praise from journalists when they were issued. But they didn’t impose any real limits on prosecutors’ ability to go after journalists. (I had firsthand experience with Eric Holder’s Justice Department; the Obama administration threatened to put me in prison for refusing to reveal my sources.)
After Trump attacked journalists and vowed to go after leakers during the 2016 campaign, his first attorney general, Jeff Sessions, said he would review Holder’s guidelines to see if adjustments were needed. But the Holder guidelines were so weak that they allowed the Trump administration to target whistleblowers and journalists at a blistering pace. They were still in place when the Trump Justice Department secretly obtained the phone records of reporters for the Washington Post, the New York Times, and CNN.
It wasn’t until several months after coming into office in 2021 that the Biden administration publicly disclosed that the reporters’ records had been seized by Trump’s DOJ, raising questions about why the Biden administration had kept the matter secret. Garland then came under pressure to develop new media guidelines. A draft of those guidelines was issued in July 2021, and the final version was released on October 26.
On paper, Garland’s guidelines look much better than Holder’s. They are worded more strongly and seem to include fewer exceptions to limits on subpoenaing reporters or seeking their records. “The [Justice] Department recognizes the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government,” the Garland guidelines state. “For this reason, with the exception of certain circumstances set out below, the Department of Justice will not use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering.”
One new and important provision in the Garland guidelines appears to ban prosecutors from targeting reporters over the processes they use to gather classified information. The guidelines state that the Justice Department now defines “newsgathering” as including “the mere receipt, possession, or publication by a member of the news media of government information, including classified information, as well as establishing a means of receiving such information, including from an anonymous or confidential source.” While that language will certainly be open to interpretation in specific cases, it seems designed to protect investigative reporters from being targeted by the government for talking with and helping their sources figure out how to provide classified information. The Justice Department has previously threatened to either subpoena or prosecute reporters based on whether the government believed that the reporters had coached or aided their sources in handing over classified information.
Still, the Garland guidelines come with potential loopholes — what the guidelines call exceptions in “certain circumstances.” The Justice Department can still go after reporters “when necessary to prevent an imminent or concrete risk of death or serious bodily harm, including terrorist acts, kidnappings, specified offenses against a minor, or incapacitation or destruction of critical infrastructure, in which case the authorization of the Attorney General is required.”
Those exceptions could be defined strictly or loosely, depending on the attorney general and the national climate. For example, after the September 11 attacks on New York and Washington, there were many false alarms about possible follow-up attacks on bridges, airports, and other targets that were considered “critical infrastructure”; another period of that kind of fearmongering could easily see a new crackdown on the press.
The guidelines also state that the protected “newsgathering” process does not include “criminal acts committed in the course of obtaining information or using information, such as: breaking and entering; theft; unlawfully accessing a computer or computer system; unlawful surveillance or wiretapping; bribery; extortion; fraud; insider trading; or aiding or abetting or conspiring to engage in such criminal activities, with the requisite criminal intent.”
Garland’s definition of acceptable newsgathering activities is likely to be tested when Assange is prosecuted. Assange was originally charged during the Trump administration for conspiring to leak classified documents; prosecutors focused on the process by which Chelsea Manning, a former Army intelligence analyst, obtained U.S. military reports and State Department cables and conveyed them to WikiLeaks. Many of those documents were also shared with major news organizations, which published stories about them. That prompted a debate, which has never been fully resolved, about whether Assange is a journalist.
Assange is now in prison in Britain and is facing extradition to the United States, where the Biden administration plans to prosecute him under the Espionage Act. He has not been charged in connection with the role that WikiLeaks played in Russia’s efforts to interfere in the 2016 U.S. presidential election.
The indictment says that Assange and WikiLeaks “repeatedly sought, obtained, and disseminated information that the United States classified due to the serious risk that unauthorized disclosure could harm the national security of the United States.” That is a charge that could be leveled against any reporter covering national security. The Assange prosecution thus conflicts with the new Garland guidelines, which clearly state that the Justice Department will not target journalists for the processes they use in obtaining and publishing classified information. To make an exception of Assange, the Biden administration will have to explicitly make the case that Assange is not a journalist.
Of course, the Garland media guidelines will not provide much protection for reporters if Donald Trump ever returns to power. Trump has made it clear that he will try to crush press freedom in America if he is elected president again; at a recent rally in Texas, he insinuated that reporters should be raped in prison to force them to reveal their sources.
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Bernie Sanders and Michelle Vallejo, a Democratic candidate for Congress, at a rally in McAllen, Texas, on October 30. (photo: Joel Martinez/AP)
Vermont senator holding nine rallies across five battleground states, hoping to deliver winning argument to young and working-class voters
With just days left before polls close and Republicans’ midterm fortunes seemingly on the rise, Sanders is hitting the campaign trail, holding nine rallies across five battleground states in the week and a half leading up to election day.
Sanders and his progressive allies hope to deliver a closing argument to young and working-class voters that Democrats are the better stewards of the US economy, in the hopes of avoiding a Republican landslide on 8 November.
Sanders’ rallies come as Democratic candidates appear to be on the defensive in key races that could determine control of the House and the Senate. Republicans have regained their lead on the generic congressional ballot, according to FiveThirtyEight, and voters’ mounting concerns over the state of the economy appear to be hurting Democrats’ prospects in the crucial final stretch of campaigning.
In an interview with the Guardian, Sanders warned that Democrats have not done enough to mobilize many of the voters who were so instrumental in the party’s victories in 2020.
“Obviously everybody should be turning out for what is the most consequential midterm election in the modern history of this country,” Sanders said before his rally in Austin, Texas. “But in the real world, I worry very much that Democrats have not done a good enough job of reaching out to young people and working-class people and motivating them to come out and vote in this election.”
Texas State University student and first-time voter Gabrielle Diedrick, 18, can easily be spotted in the crowd in San Marcos by her black 10-gallon hat, cowboy boots and blue Bernie T-shirt. For Diedrick, raising the minimum wage is her top priority as a constituent and Sanders’ position resonates with her.
Diedrick said: “It’s hard to pay off tuition here at San Marcos. Every job here is like $10 an hour and tuition is about $10,000 every like five months or semester.”
Sanders has repeatedly hammered his economy-based message in the closing days of the 2022 election season, expressing concern that Democrats have focused too heavily on abortion rights in their campaign messaging. In a Guardian op-ed written earlier this month, Sanders urged progressive candidates to outline a pro-worker vision for the country, saying it would be “political malpractice for Democrats to ignore the state of the economy and allow Republican lies and distortions to go unanswered”.
More Democrats have acknowledged the wisdom of Sanders’ argument in recent weeks, as surveys show a large share of the electorate identifies the economy as their top priority. An ABC News/Ipsos poll taken last week found that 49% of Americans named the economy or inflation as the most important issue determining their vote for Congress, while just 14% said the same of abortion.
That trend could sink many Democratic congressional candidates, as voters consistently say Republicans are better equipped to manage the US economy. Sanders considers that widely held belief to be a misapprehension, insisting Republicans are not prepared to address the near record-high inflation currently affecting millions of American families, and he said Democrats must press their opponents on economic policy.
“We should take the fight to the Republicans,” Sanders told the Guardian. “What are they doing about inflation? What are their ideas? Their ideas, among other things, is to give massive tax breaks for the rich and then cut social security, Medicare and Medicaid.”
In an attempt to turn the inflation conversation on its head, Sanders has framed the problem as a result of corporate greed, and there is some evidence to support his theory. One analysis released in April by the Economic Policy Institute, a left-leaning thinktank, concluded that about 54% of inflation could be attributed to increased corporate profits.
“People are hurting. You got 60% of our people living paycheck to paycheck. And for many workers, they are falling further behind as a result of inflation,” Sanders said. “Corporate profits are at an all-time high. The rich are getting much richer, and Democrats have got to make that message.”
Joe Biden appears to have taken the hint, lambasting corporate greed in the closing days of the campaign season. On Monday, the president delivered remarks criticizing oil companies for posting record profits as gas prices have climbed. “It’s time for these companies to stop war profiteering, meet their responsibilities to this country, and give the American people a break and still do very well,” Biden said in a speech at the White House.
Sanders credited Biden with directly addressing the concerns of working Americans, but he lamented that Democratic leaders have not done enough to change voters’ minds about the party’s economic agenda, as they have instead focused more of their attention on abortion rights.
“We have not had the same unity and the same energy around the economic crisis facing working families and what Republicans would do,” Sanders said. “It’s not a question of what the president alone is doing. It’s a question of what the party is doing, where it’s putting its money, its resources, its energy.”
Joseph Geevarghese, executive director of the progressive group Our Revolution, echoed Sanders’ concerns that Democrats have fallen short when it comes to presenting a unified vision around improving Americans’ standard of living. But he acknowledged the inherent challenges of that task, when many of Democrats’ proposals aimed at helping families struggling under the weight of rising prices failed to pass Congress.
Democrats had originally hoped to establish a federal paid family leave program and extend monthly child tax credit payments through their Build Back Better Act, which stalled in the Senate late last year. Democrats instead passed the Inflation Reduction Act this summer, but many of progressives’ economic proposals were stripped out of that bill to ensure the support of centrists like Senators Joe Manchin and Kyrsten Sinema.
“I agree Democrats have not delivered enough,” Geevarghese said. “I don’t want to belittle [Biden’s] accomplishments, but what he has delivered is much less than what was originally promised, so that’s the fundamental problem.”
That being said, Geevarghese suggested Biden and fellow Democrats could use the hurdles they have encountered to their advantage. After all, if more progressives are elected to Congress, Democrats could revive portions of Build Back Better that were left on the cutting room floor.
“Biden should level with the American people,” Geevarghese said. “He tried to pass transformative legislation that would improve the standard of living of working-class voters, and he was stymied by people in his own party like [Sinema and Manchin], and you know what? That’s why he needs Democrats who will vote with the Democratic caucus.”
Sanders could serve as a pivotal messenger on that front in the final days of the campaign. In his two presidential runs, Sanders demonstrated how a platform of economic populism could invigorate young and working-class voters.
“We know that he is the most popular youth vote candidate. He’s one of our oldest, but he’s one of the most popular hands down,” said Cristina Tzintzún Ramirez, president of the youth voting group NextGen America, which is co-hosting Sanders’ rallies. “No one can mobilize young people and working-class people like Bernie Sanders can.”
When Sanders traveled to the border town of McAllen to rally for congressional candidate Michelle Vallejo’s campaign, Vallejo described “a packed house”.
Vallejo told the Guardian: “To have Senator Bernie Sanders come join us was really exciting. It meant a lot to me. And it meant a lot to the people of [district] 15, because we want to be heard, and we want to be seen for who we are and be respected for the solutions, opportunities and resources that we know that we need in order to live the best quality life possible.”
Although House Democrats’ campaign arm, the Democratic Congressional Campaign Committee (DCCC), has chosen not to invest heavily in Vallejo’s race in the face of a potential Republican wave election, she expressed optimism about her chances on 8 November.
“While we did not see any large TV buys on our behalf of the DCCC, we are focusing on connecting with our voters and running this campaign the way that we’ve run it since day one: which is just centered on our community members and on the efforts that really are rooted from our home and on the ground,” Vallejo said.
Early voting data has raised alarm among some Democrats that younger Americans will not cast ballots at the record-breaking levels seen in 2020, which could prove disastrous for the party’s hopes of maintaining control of Congress. But Ramirez expressed confidence that young voters will once again turn out in large numbers because they understand exactly what is at stake on November 8.
“What we’re going to be telling young people is that, in 2020, we beat back fascism. We beat it back for an election cycle. We didn’t kill it or destroy it,” Ramirez said. “We have to beat it out of the political body for our democracy to be truly healthy, and we’re not there yet at all.”
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Brittney Griner. (photo: CNN)
It's a world familiar to Maria Alyokhina, a member of feminist art ensemble Pussy Riot who spent nearly two years as an inmate for her part in a 2012 punk protest in a Moscow cathedral against President Vladimir Putin.
The first thing to understand, Alyokhina said in an interview, is that a penal colony is no ordinary prison.
"This is not a building with cells. This looks like a strange village, like a Gulag labour camp," she said, referring to the vast penal network established by Soviet dictator Josef Stalin to isolate and crush inmates.
"It actually is a labour camp because by law all the prisoners should work. The quite cynical thing about this work is that prisoners usually sew police uniforms and uniforms for the Russian army, almost without salary."
The colony was divided between a factory area where the prisoners made garments and gloves and a "living zone" where Alyokhina said 80 women lived in one room with just three toilets and no hot water.
Griner, a two-time Olympic gold medallist, could soon be transferred to a colony in the absence of a further appeal or an agreement between Washington and Moscow to swap her for a Russian arms dealer jailed in the United States - a possibility that was floated months ago but has yet to materialise.
HARSH RULES
In a Pussy Riot show that has toured the world and is now playing in Britain, Alyokhina relives the memories of her time as an inmate - snowy prison yards, plank-like beds, long spells in solitary confinement and punishment for minor infringements such as an unbuttoned coat or poorly attached nametag.
She was constantly being videoed by prison guards "because I am a 'famous provocateur'," she added.
Russia's prison service did not reply to a request for comment for this article.
A more recent penal colony detainee, Yelena, described a similar regime to that experienced by Alyokhina a decade ago.
Yelena, 34, served eight years in a Siberian colony after being convicted for possession of drugs. She said she was paid about 1,000 roubles ($16) a month for toiling 10-12 hours a day in a sewing workshop.
"Girls with a strong, athletic build are often given much heavier jobs. For example, they load sacks of flour for a prison bakery or unload mountains of coal," she said.
Prisoners could face punishment for inexplicable "offences" such as placing a wristwatch on a bedside table. The ultimate sanction was solitary confinement, known as "the Vatican".
"Just as the Vatican is a state within a state, solitary confinement is a prison within a prison," Yelena said.
A gynaecologist paid a monthly visit to her colony, where more than 800 women were imprisoned.
"You do the math, what are the chances of being the one to get through to a doctor? Practically zero," she said.
LANGUAGE BARRIER
For a foreigner with little or no Russian, it's harder to navigate the system and deal with the isolation.
The brother of Paul Whelan, a former U.S. Marine serving 16 years in a Russian penal colony on espionage charges that he denies, said he is granted a 15-minute phone call each day to his parents, cannot call other family members or friends, and has no access to email or the internet.
David Whelan said his brother must work at least eight hours a day, six days a week, on menial tasks like making buttonholes, which has caused him repetitive strain injury.
Inmates sleep in barrack-like buildings and access to many necessities, including medicine, depends on paying bribes to prison guards, he said. Conditions can depend heavily on the whims of guards, the warden or elder inmates.
Paul seems to use his military training "to get through just day to day, to figure out what battles to fight and which battles not to fight", David Whelan said.
"His phone calls even to our parents are recorded. His letters were all translated before they went out. So you know that everything you do is being watched and you really have no sense of individuality."
Alyokhina said receiving cards and letters from the outside world offered a rare ray of hope, and she urged people to support Griner that way.
She said they should use a machine translation and send the text in both English and Russian to get it more easily past the prison censor.
"Do not leave someone alone with this system," she said. "It's totally inhuman, it's a Gulag, and when you feel yourself alone there, it's much easier to give up."
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Governor Ron DeSantis of Florida. (photo: Joe Raedle/Getty Images)
“The guys that I’m speaking to, simply put, are gun-shy [about registering and voting] right now,” one voting rights activist told VICE News.
“You don’t realize how important your right to vote is until it’s taken away from you. In my case, for 18 years,” Whitaker, who was in prison from 1998 to 2016 and founded the nonprofit Adversity Overcomers Outreach Ministries after his release, told VICE News. “For a lot of us, we would love nothing more than to have all our rights returned back to us, to get back into the flow of life and make a change. Part of that is voting.”
But Florida has continued to make it difficult for thousands of former felons like Whitaker to vote, and new barriers have created more confusion and post-release hurdles for reintegrating back into society. In many cases, advocates say, these barriers are enough to dissuade these Floridians from taking part in the election process altogether—particularly after state lawmakers created a specific unit within the state police to investigate election crimes and 20 people were arrested in August for alleged voter fraud, a third-degree felony.
Last month, the Tampa Bay Times obtained body camera footage from these arrests, showing confused and frustrated returning citizens being handcuffed. When 55-year-old Ramona Oliver was approached by police as she was leaving for work before 7 a.m., she responded: “Voter fraud? I voted, but I didn’t commit no fraud.” More than half of those arrested were Black, according to the Times.
In 2018, Florida voters voted by a nearly 2-to-1 margin for Amendment 4, which restored voting rights to people convicted of non-murder or sexual assault felonies who’d completed their sentences. Gov. Ron DeSantis, who was elected governor the same year, had opposed what he called the “automatic restoration of voting rights.” Though those who were arrested would not have been re-enfranchised under Amendment 4, they say they were told they were eligible, allowed to register, and even sent voter registration cards, as Politico reported in August.
In 2019, the legislature significantly curtailed the law by passing legislation requiring those who wished to have their voting rights restored to pay “all fines and fees,” including restitution and legal fees,” before they could vote. Amendment 4 supporters have likened it to a poll tax.
“I think [Amendment 4] was a mistake and would not want to compound that mistake by bestowing blanket benefits on violent offenders,” DeSantis, who signed the new law, said just six months after the amendment passed. (Neither the governor’s office nor Secretary of State Cord Byrd responded to a list of questions from VICE News.)
A total of 4.6 million people in the U.S. are disenfranchised due to a prior felony conviction, according to data released by the Sentencing Project last month, and four years after Floridians voted to restore voting rights to former felons, the state still has the largest number of disenfranchised returning citizens in the country. More than 934,000 people who’ve completed their sentences are still ineligible to vote, according to the Sentencing Project, a group that advocates for the rights of the incarcerated, including their right to post-prison suffrage.
“It feels like a Dickens novel sometimes—it’s the best of times and worst of times. On one hand, we ended the lifetime ban for 1.4 million people, 216,000 returning citizens registered to vote in Florida,” Neil Volz, deputy director of the Florida Rights Restoration Coalition, told VICE News. “At the same time, there are hundreds of thousands of returning citizens who still face barriers to the full implementation and promise of Amendment 4.”
Voting rights advocates say the state is shirking its responsibility to returning citizens by allowing them to register and then arresting them for voting. The high-profile arrests, they say, amount to a crackdown that has caused a chilling effect among people who otherwise might be eligible to vote.
“The guys that I’m speaking to, simply put, are gun-shy right now,” Whitaker said. “This is all startling to them.”
In 2020, Miami-Dade County resident Robert Lee Wood was approached outside of a Walmart to register to vote, and did so; he then received a voter registration card in the mail from the state, and voted in the 2020 general election. In August 2022, however, Wood’s house was raided by the police and he was taken into custody—for the crime of voting illegally.
“Dozens of cops surrounded his house with automatic weapons at 6 o’clock in the morning,” Wood’s lawyer, Larry Davis, told VICE News. “They wouldn’t even let him get dressed.”
But by October, the case against Wood had begun to unravel. Davis and fellow attorney (and Democratic state representative) Michael Gottlieb filed a motion that persuaded a judge to dismiss the charges against Wood by arguing that the case was not multi-jurisdictional, and thus not eligible for statewide prosecution. In his order, Miami-Dade Circuit Judge Milton Hirsch borrowed from Shakespeare’s Henry V, specifically, a line about how the titular character’s “arms spread wider than a dragon’s wings.”
“How much wider even than that does [the Office of Statewide Prosecution] seek to extend its reach?” he asked. “In the case at bar, the answer is simple: wider than the enabling statute contemplates, and therefore too wide.”
But even with the charges dropped, Gottlieb says the state’s case against the voters is “entrapment” and “outrageous government conduct.”
“They should instantly take that person’s application and say, ‘Look, you're not entitled to vote,’” Gottlieb said. “But instead, they’re allowing them to vote, they’re giving them a voter registration card, they’re giving them a polling place… and then when they vote, they’re saying, ‘What you did was a crime.’”
In April, when DeSantis signed a bill creating the Office of Election Crimes and Security within the Florida Department of Law Enforcement to investigate alleged election crimes, he claimed in a statement that while Florida ran “the most secure elections in the country” in 2020, the state would “need to do more to ensure our elections remain secure.”
Those offenses, he said, would be reviewed by the Office of Statewide Prosecution, which prosecutes charges concerning two or more of Florida’s 20 trial circuits.
Gottlieb, who is also representing Broward County resident Terry Hubbard, said he believes the people arrested in August were targeted for political reasons.
“I’ve heard from people out there [doing voter registration] that people have said, ‘I’m not going to vote because I’m afraid I’ll get prosecuted,’” Gottlieb told VICE News. “I think many share the opinion that the announcement of the 20 arrests was done in Broward County specifically to disenfranchise people from voting in the largest Democratic stronghold in the state of Florida.”
“Why hold a press conference in Broward [County] if it’s random throughout the state?” Gottlieb said. “There was no press conference held in [the heavily Republican retirement community] The Villages for the four individuals who voted there and in other states.”
Volz said that the Florida Rights Restoration Coalition has heard similar things from people who’ve called the group’s hotline for help with fines and fees. “We definitely have talked with people who are unsure, and are deciding that they are not going to be a part of the voting process,” Volz told VICE News, adding that some people who’ve expressed this fear don’t even have a felony conviction. “There’s a lot of confusion in the process.”
Even further adding to the confusion: In August, the state rolled out a new form for people on probation that places the burden on them to determine if they can vote or not, the Tampa Bay Times reported Monday.
“By signing this letter, you agree that you alone are solely responsible for determining if you are legally able to register to vote, and that you must solely determine if you are lawfully qualified to vote,” the form states. “If someone tells you that you are eligible to vote, you must rely upon your own independent knowledge (as informed by your own attorney if applicable) of your individual circumstances, and not upon the advice of any third parties who may be incorrect or unqualified to interpret your eligibility."
Gottlieb called this a “complete setup.”
“The whole purpose behind government is to vet and ensure that when giving somebody a driver’s license or vote or carry a gun, that they’re qualified to do so,” Gottlieb said. “They’re abdicating that responsibility. Number two, they’re firming up their future prosecution by potentially adding a whole new crime of perjury.”
Whitaker told VICE News that after body camera footage of Floridians being arrested for voting made the rounds among his old prison friends, many of them expressed a reluctance to vote. Whitaker said even he was initially hesitant about casting a vote this month, even though he voted just last year without any problems.
The only reason he’s still going to the polls next week is because of his close working relationship with the state’s attorney general.
“I’m banking on the fact that if I do run into any kind of issues and problems, [the attorney general is] someone I could call upon,” Whitaker said.
Julie Ebenstein, a senior staff attorney for the ACLU’s Voting Rights Project who sued the state over its 2019 law, said regaining access to the right to vote helps returning citizens fully become members of society again. “ It’s all around a positive thing for the individual and everybody else for people to be able to re-engage,” Ebenstein said. “It’s a point of pride for a lot of our clients and others."
“When it comes to rights restoration, in a lot of cases, we’re talking about people who are no longer serving their sentence,” Ebenstein told VICE News. “They’re waiting for a period of time after the completion of their sentences, or they’re unable to pay financial obligations.”
But advocates say that Florida’s lack of a cohesive, statewide system makes it difficult for returning citizens to even know what their fines are and how much they owe.
“You really need to work with an attorney to find out exactly what the sentence you're given costs, because interest and other costs are not included,” said Volz, who is a returning citizen himself. “So you have to work with your local clerk of courts to access the information. Sometimes you have to pay to get the information on your own situation.”
“It’s a tedious process,” he added.
Compliance with the state law has at times stumped even elections officials. In 2020, a representative from the Alachua County Supervisor of Elections’ office helped incarcerated people in the county jail register to vote, according to a ProPublica investigation. This year, Alachua County charged 10 of those people who registered with voter fraud. Four out of the 10 pleaded guilty, and one received an additional 10 months in jail. (The top elections official in the county defended her office afterwards, saying it’s “incumbent on the individual” to determine if they’re allowed to register.)
For some former felons, these barriers further reinforce the idea that there is no point in practicing one of the few rights afforded to them after serving time, and that the right to vote alone isn’t enough to make them full members of society again.
During a weekly call-in show last month on South Florida public radio station WUSF, a man identified as “Spencer in Jacksonville” called in during a discussion of the arrests and said that though he’d had his rights restored, he had no intention of voting.
“I kinda think it’s all just really crap. You get your rights restored but all you’re allowed to do is vote. You’re not allowed to carry a handgun and protect yourself, you’re not allowed to live in Section 8 housing. This is a mess created by our politicians,” Spencer said. “I still don’t vote. And I won’t. Why should I?”
Despite the uncertainty, though, many returning citizens aren’t giving up on voting entirely. For some, like Whitaker, having a voice after all these years is well worth the risk of accumulating new charges on their record.
“I’m not gonna back down from it, I’m just going to go vote. [...] Whatever occurs after that, I’m just going to have to deal with it at that point in time,” Whitaker said. “Man, I did 18 years. I’m looking forward to pushing forward and doing what I know God has called me to do. All these little hindrances that keep coming up that’s trying to distract from what I’m doing, I just can’t allow for that to happen.”
For others, the uncertainty around their vote has given them new purpose: advocating to those closest to them to practice their American right in their stead.
“We also know some of those same people are using this energy to reach out to their neighbors, to their friends, to their loved ones, and encouraging them to be their voices at the ballot box, which is not unusual for this movement,” Volz said. “That’s how we got all our petitions by and that’s how we got people to vote for Amendment 4, before any of us could even vote, those of us with past convictions, is to go to your loved ones and be like, ‘Hey, be my voice.’”
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Twitter headquarters. (photo: Built In SF)
ALSO SEE: NAACP, ADL,
Other Orgs Call for Advertisers to Boycott Twitter
The cuts appeared to affect many people whose jobs were to keep Twitter from being overwhelmed by prohibited content such as hateful conduct and targeted harassment, according to one current and six former Twitter employees familiar with the cuts.
Two former Twitter employees and one current employee warned the layoffs could bring chaos around the elections, as they hit especially hard on teams responsible for the curation of trending topics and for the engineering side of “user health,” which works on content moderation and site integrity. The seven people asked to withhold their names out of worry over professional retribution and because they weren’t authorized to speak for the company.
CEO Elon Musk, who’s facing sizable future debt payments and declining revenue at Twitter, said the cuts were needed to ensure the health of the company’s long-term finances a week after he bought it for $44 billion.
The cuts appeared to affect many people whose jobs were to keep Twitter from becoming overwhelmed by prohibited content, such as hateful conduct and targeted harassment, the seven sources said.
Twitter has not announced any moderation policy changes, and earlier this week, Yoel Roth, Twitter’s head of safety and integrity, said the company was remaining vigilant against attempts to manipulate conversations about the midterms. Musk has said the company won’t allow anyone back on Twitter who had been previously banned for at least a few more weeks.
But Gita Johar, a Columbia University business professor who has studied misinformation on Twitter, said the job cuts risk turning the site into a “free-for-all with rumors, conspiracy theories and falsehoods taking hold on the platform and in people’s imagination.”
Twitter had not released public figures about which teams had been cut the most, but the layoffs were widespread. In an exchange at an investor conference Friday, Musk appeared to confirm that his team had laid off half the company’s workforce, according to CNBC.
“Elon will own a company without employees,” a source inside Twitter told CNBC.
An email to Twitter’s public relations team was not immediately returned Friday. Some members of the team tweeted that they had been laid off.
Roth, Twitter’s head of safety and integrity, tweeted early Friday evening: "While we said goodbye to incredibly talented friends and colleagues yesterday, our core moderation capabilities remain in place."
He added that layoffs affected about 15% of the company's trust and safety teams with "front-line moderation staff experiencing the least impact."
"With early voting underway in the US, our efforts on election integrity — including harmful misinformation that can suppress the vote and combatting state-backed information operations — remain a top priority," he continued.
Musk retweeted Roth's thread and added: "Again, to be crystal clear, Twitter’s strong commitment to content moderation remains absolutely unchanged."
He also tweeted that "hateful speech at times this week decline *below* our prior norms, contrary to what you may read in the press."
Twitter’s curation team, which had a variety of roles across the platform, including coordinating the detection and publishing of moments meant to debunk misinformation, appears to be gone, one source said. The team had recently published an explainer about how it tried to keep information accurate and impartial.
Andrew Haigh, a London-based curation lead, said on Twitter that the team “is no more.”
“Unfortunately, the platform’s history of transparency and supporting research may be just that: history,” said Kate Starbird, a professor of design and engineering at the University of Washington who studies misinformation.
Starbird said it remained to be seen how potential misinformation around the midterms might be affected.
“We were already expecting a surge in rumors and disinformation around the election, even before Musk taking the reins,” she said.
“But the mass layoffs mean that we’ll get to see what an unmoderated major platform truly looks like in 2022, in an era of algorithmic manipulation and networked toxicity, during a massive online convergence event with huge political stakes.”
The roughly 100-person team tasked with Twitter Blue, the site’s subscription service, was also slashed, according to one former employee. Most of the team’s engineers and product managers were fired on Friday and replaced with a “rag tag team” from other parts of the company, that would build the service into a vehicle for verification, the employee said.
One current and two former employees were also concerned about a planned product that would allow Twitter users to buy verification badges. That could potentially, depending on the rules around the program, allow anyone to release disinformation from official-looking accounts or impersonate election officials or public figures as votes are being cast and counted in the midterms, those sources said.
Musk had promised to make the site’s verification feature, which was formerly used to confirm the identity of celebrities and public officials, open to purchase for $8. Bloomberg reported that sources inside the company said the plan is to ship it by as soon as Monday. NBC News has not verified that report.
One current and two former employees, some of whom were let go in the thousands of layoffs on Friday morning, said they were worried about the feature, noting they didn’t see significant enforcement mechanisms to make sure users with the verification checks are who they say they are.
“Twitter isn’t prepared for that scale,” said one Twitter employee who survived Friday’s layoffs and asked to remain anonymous because they were not authorized to speak publicly about internal company projects.
“I expect a ton of cybersecurity attacks on Monday,” the day the new verification system is proposed to go into place, the employee said.
The new feature could hypothetically allow users to impersonate public officials or politicians and disseminate false news as votes roll in.
“That’s exactly the problem,” said the Twitter employee who remained with the company, adding that currently “Elon literally has no plans to stop that.”
One Twitter employee who was laid off on Friday said the plan might not launch on time because only a “skeleton crew” of engineers is left at the company and so it might not be technically possible. The Twitter employee said that, as of the layoffs, the plan was that “there’s not going to be any verification of ID” to acquire a verification badge.
“He thinks the bots won’t pay money, so anyone without a blue mark will be a bot, in his logic,” said a Twitter employee who is still at the company.
The removal of teams core to Twitter’s moderation and trust and safety efforts combined with the new verification system have the potential to change one of the world’s central information hubs days before U.S. midterm elections end. Misinformation and violent threats remain an issue on social media platforms, and U.S. law enforcement is already on high alert for conspiracy-driven conflict.
Laura Edelson, a postdoctoral researcher at New York University who studies online political communication, said she has already observed an uptick of content on Twitter that violates the company’s rules.
“ What I think we saw is a little preview of what Twitter is like without the trust and safety team having access to the tools that they need to do their jobs,” she said. “I think that’s only a preview of what we’ll see if the trust and safety team either is gutted or just doesn’t exist.”
Edelson added that Twitter’s growth as a platform coincided with the growth of its moderation efforts, making it so the company could employ recommendation systems to algorithmically promote content while also making sure offensive posts or misinformation did not spread as widely. Without those checks and balances, she warned Twitter could become a far different platform.
“I think we’re used to the professionalization of platforms where they do have trust and safety features, and I also think we remember a time when these platforms were just smaller and they had fewer protections because they didn’t need quite so many,” she said. “But all of the major social media platforms, they became a lot more accelerative maybe 10 years ago.”
“It’s like when you know your car has brakes, you’re willing to go faster,” Edelson added. “Now they’ve taken the brakes off the car.”
One laid-off Twitter employee told NBC News that “the only saving grace is that he changes his mind on things all the time.”
“There were some incredibly talented people who didn’t deserve this,” said a current Twitter employee. “But Elon is looking for yes men, not people who actually know stuff.”
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Frank Young. (photo: Douglas Miles/The New Yorker)
Voters on Navajo, Apache, and Hopi reservations helped swing Arizona for the Democrats in 2020. In response, the Republican governor and state legislature have curtailed ballot access for an already marginalized constituency.
There are close to five million Native Americans of voting age in the United States, but only sixty-six per cent of them are registered to vote. Young said that he previously chose not to participate in American elections because the state and federal governments—he called them “colonizers”—had oppressed his people for centuries, extracting their timber, minerals, and ore, and leaving them to languish on land stripped of its value. “I just felt that our votes didn’t matter,” he told me.
It was an explanation that I heard a lot as I made my way across Arizona’s Navajo, Apache, and Hopi reservations, where human habitation is sparse, and flat-topped mountains preside over scrubby grass valleys. Native Americans have the highest rate of poverty in the nation—around twenty-seven per cent. As the pandemic took hold, the rate of unemployment soared to nearly twenty-nine per cent, reaching rates not seen in this country since the Great Depression. What this looks like on the ground is stunning: whole communities that live in substandard housing and, in 2022, lack electricity and running water. A former state legislator from the region said, “If you were told that there’s a Third World country in the middle of Arizona, you would not believe it. Yet people here still have to haul water, they have to use kerosene lanterns, and they have to use outhouses.”
Vida Begay, a Navajo woman from Indian Wells, Arizona, explained that people there had to strap two-hundred-gallon plastic water tanks—each of which can cost upward of two hundred dollars—to the back of their vehicles, filling them every few days, even in the depths of winter, when they have the tendency to freeze and crack open. On an Apache reservation, in Whiteriver, Lydia Dosela told me that there are members of her community who, because they can’t afford transportation, hitchhike to the town of Pinetop-Lakeside, twenty-five miles away, to work. “If it’s a choice between paying for gas and feeding their family, they are going to feed their family,” she said. As we toured her village, where stray dogs roam in packs, we passed the remains of a community center that had burned down after its copper wires were stripped by vandals. Dosela pointed to a small, windowless, unheated shed, the prefabricated kind that is meant to store tools and other equipment, and said that five people had been living in it.
Lydia Dosela.
Both Begay and Dosela are organizers with Northeast Arizona Native Democrats, hired to educate their communities about elections, garner support for Democratic candidates, and encourage voting. It is challenging work. Poverty and geography have combined to create structural barriers that thwart voting on sovereign Native lands. Poor people in the United States vote less than those with higher incomes, generally, but the remoteness of many communities and a general lack of reliable transportation make voting even more difficult for many Native Americans. In Navajo County, for example, which covers ten thousand square miles, there are only seventeen ballot drop boxes and twelve early-voting sites. Because local election offices are underfunded, the hours that those sites are open are often limited. The million-and-a-half acre Hopi Reservation has just three places where people can vote in person on Election Day. Early voting by mail helps Native voters, but post-office boxes can cost money that people may not have, and, in communities where there are not enough boxes to go around, residents sometimes have no choice but to get their mail delivered to towns that are hours away. There are only eleven post offices and sixteen additional sites that provide postal services across the entire Navajo reservation in Arizona. By contrast, West Virginia has seven hundred and twenty-five.
“Most of the time, when you have a post-office box, it makes voting a lot easier,” Allison Neswood, an attorney at the Native American Rights Fund, told me. “But, for Native communities, that’s not necessarily the case. The ones that are more rural, more remote, are farther from post offices, and the same obstacles to picking up the mail—Are the roads passable? Does my family have a vehicle that I can use?—also create barriers to voting.” (The majority of roads in Navajo Nation are unpaved and, in some parts of the reservation, only one in ten people owns a car. ) For tribal members who do not speak or read English and need language assistance, voting in person is the only option. But, for those who live in, for example, Teec Nos Pos, which is ninety-five miles from the nearest polling location, or for members of the Kaibab Paiute tribe, who have to travel two hundred and eighty-five miles to an early-voting site, voting in person may not be an option.
This year, Frank Young will once again ride his horse to the polls. His daughter, Allie, meanwhile, who is a program manager at the social-justice nonprofit, Harness, is sponsoring rides to register and to vote in other parts of Arizona, as well as in rural Black and Latino neighborhoods in Texas and Georgia. In her own community, Allie Young said, the show of civic engagement is meant to highlight a long history of voter suppression that continues to stymie Native Americans’ access to the ballot box. “The spirit of the horse represents strength and healing,” she said. “When we put our trust in the horse, it takes us where we need to go.”
Frank Young.
Neither the Fifteenth Amendment, which prohibits both the state and federal governments from denying (male) citizens the right to vote based on race, nor the Snyder Act of 1924, which explicitly granted citizenship to Native Americans, enfranchised them in Arizona, because the Constitution left it up to the states to decide who could vote. That right wasn’t fully extended to Indigenous people residing in Arizona until 1948. Even then, state-sanctioned literacy tests continued to block many Native Americans from registering, until the practice was struck down by a Supreme Court decision in 1970, five years after the Voting Rights Act abolished such tests nationwide. At a campaign rally I attended in Cameron, a place known for its abandoned uranium mines and high rates of cancer, Theresa Hatathlie, a Navajo woman running for State Senate, told the crowd, “For a long time, my mother and my father were not allowed to vote. So when they were finally given that right, whether it was the primary, or the general, or a special election, no matter the distance, whether it was raining, snowing, hailing, they went to vote. They reminded us that our people, our ancestors, encountered all this hardship and all these challenges just to vote.”
In 2020, Native Americans, who comprise six per cent of the Arizona population, voted in numbers never before seen and are largely credited with turning the state blue. According to the Associated Press, voters on the Navajo and Hopi reservations cast seventeen thousand more votes in 2020 than they had four years earlier, a majority of them for Biden, who won the state by about ten and a half thousand votes. With Trump promising to reopen the uranium mines, seizing sacred lands, and threatening to renege on the 1868 treaty that allowed Navajos to return to their ancestral homeland, the prospect of a Republican victory was existential. Jordan Harvill, the national program director for Advance Native Political Leadership, an Indigenous-led nonprofit that works to increase Native American political representation, told me, “After years of chronic underinvestment and voter suppression in Native communities, Native voters proved to be a decisive voting bloc in 2020.”
Rather than trying to appeal to Native voters, the Republican legislature and governor are, instead, actively working against them. The 2021 Supreme Court decision in Brnovich v. Democratic National Committee, a case that originated in Arizona, essentially neutered the section of the Voting Rights Act which prohibits states from passing laws that result “in a denial or abridgement” of the right to vote “on account of race or color.” In an opinion written by Samuel Alito, the Court’s conservative majority ruled that a law passed by the Arizona legislature, which made it illegal for a person to return the ballot of a friend or neighbor to a drop box or polling location, and disqualified voters who cast ballots in the wrong location, did not violate the Voting Rights Act. In an amicus brief, lawyers for the Navajo Nation pointed out, “Arizona’s ballot collection law criminalizes ways in which Navajos historically participated in early voting by mail. Due to the remoteness of the Nation and lack of transportation, it is not uncommon for Navajos to ask their neighbors or clan members to deliver their mail.” The 2022 election will be the first time ballot collection will be outlawed. There is little doubt that it will suppress the Native vote.
The law’s prohibition against out-of-precinct voting is also likely to undercut Native representation. Indian reservations tend to lack street addresses—by one count, fifty thousand properties do not have a fixed address—so when people there register to vote they have to draw a map of where they live in order to be assigned to the correct precinct. But, in practice, this often leads to voters being placed in the wrong precinct or not getting a precinct assignment at all. Although they may be able to cast a provisional ballot, Arizona rejects provisional ballots more frequently than any other state, and a substantial number of those rejected ballots are from Indigenous communities. And though the state now allows voters to identify their domicile with a code from Google that uses latitude and longitude to create a shareable digital address, numerous challenges, starting with Internet access and poor cell service, make this difficult to implement on reservations. Casey Lee, a thirty-three-year-old Navajo chef, started registering voters in and around Kayenta after the pandemic forced him to shutter his food truck; he told me that he now spends much of his time finding Google codes for his neighbors.
Since the Brnovich decision, the legislature has continued to pass more laws that target Native Americans and other people of color, who tend to vote for Democrats. Voters now must “cure” ballots when there is a mismatch between the signature on file and the signature on the ballot by 7 P.M. on Election Day—previously, they had seven days to do so—a hurdle that is likely to be too high for most people living on reservations. Another law bans local election offices from receiving funding from outside organizations, despite chronic underfunding of those offices, especially on reservations. Two additional laws make it easier for registered voters to be removed from the voter-registration database. “The colonization of our people is not over,” the former state legislator told me. “And one of the most glaring forms is attacking our voting rights. It is the easiest way to take the power away from Indigenous communities. And so it continues to happen.”
Redistricting has also hit Native communities hard. Districts that were created to empower Native Americans have now been sliced and diced to mute Native voices. District 2, for instance, now encompasses sixty per cent of Arizona’s landmass, including fourteen of the state’s twenty-two tribes. It is the most Native voting district in the state. But the newly drawn map adds a large Republican county, diluting the Native vote and giving the advantage to white Republicans. This new map is a direct legacy of the Supreme Court’s 2013 decision in Shelby v. Holder, which effectively eliminated the provision of the Voting Rights Act that required the Justice Department to review changes to voting rules in states with a history of racial and ethnic discrimination before they could be adopted—what is known as “preclearance”—in order to insure that those changes would not harm minority voters. Without preclearance, states are now free to discriminate at will.
It was the twelfth day of early voting when I arrived in Dilkon, a town of fewer than two thousand people in the southwestern corner of the Navajo reservation. I followed a “Vote Here Today” sign to the town’s chapter house, an unassuming, dun-colored building on a dusty side road. The radio station KTNN, “the Voice of the Navajo Nation,” had set up in a parking lot a few hundred feet away, and was broadcasting a mix of country songs, tribal music, and exhortations to vote. Women crowded into a makeshift kitchen inside a horse trailer, preparing pozole, a pork-and-hominy stew. People arrived in fits and starts, most dropping off ballots before sitting down at folding tables to eat. Cindy Honani, an organizer from Mission for Arizona, a group funded by the Democratic Party, told me that it was the first time they had served hot food at a campaign event. The organizers hoped that both the stew and the presence of the radio station would draw a hundred people by day’s end. It was unseasonably cold—it snowed that morning—and people ate in a hurry and left. The mood was serious, not festive.
Cindy Honani.
On the other side of the road was a neat row of compact houses. Begay told me that each one might have fifteen people living in it. That was the reason that COVID tore through the Navajo Nation, she said. (In May, 2020, there were more COVID cases per capita on the reservation than anywhere in the country.) “If one person got COVID, there was no place for them to isolate, so it went through the houses here like wildfire.” Masks are still required on the reservation, and, as I drove along Indian Route 15, it was not unusual to see hand-painted signs reminding people to wear them.
Missa Foy, the chair of the Navajo County Democrats, told me that, during the 2020 election, the pandemic had curtailed door-knocking and other traditional get-out-the-vote activities. “We had been on the ground since 2019, doing year-round deep canvassing, and when the pandemic hit we were not going to go out there and tell anyone to vote because it was just not the right thing to do,” she said. “So we came together as a team and said, ‘Let’s see who needs help. Let’s see what we can do.’ ” The group began connecting people with needed services, including meal boxes and P.P.E. “This wasn’t a branded effort,” Foy said. “We weren’t saying, ‘The Democratic Party is calling to save you.’ We just did it as community service.”
This effort was being run almost entirely by women. Later on, Foy and her colleagues decided to try to replicate it for voting, training community matriarchs on the ins and outs of voter registration and early voting, introducing them to candidates, and familiarizing them with the ten propositions that are on the midterm ballots. There are now a hundred and sixty-four matriarchs who have pledged to get their extended families to the polls. One of them, Lorraine Coin, a sixty-five-year-old Hopi woman I visited in Second Mesa, told me, “Women are the fire keepers of the house. When the kids come home from school, who is the first person they want to see? The mom, of course. And when the mom or grandmother or auntie talks, they are going to listen.”
Not long before I left Arizona, I drove around the town of Pinon with Suzy Etsitty, a medical-transportation driver who has worked to elect Democrats since 2014. Before that, she said, she “didn’t know crap about politics.” Now she regularly debates her Republican relatives, most of whom live off the reservation, about abortion, immigration, and inflation. And she can persuade her neighbors to register and vote because their lives depend on it. “I tell them that their social security is at stake,” she said. “That their rights are at stake. That we get funding from the government for our schools and our hospitals and for things like food stamps.”
Suzy Etsitty.
Pinon is a dusty outpost of just over a thousand residents. As we drove, Etsitty, who lives out of town in a house built by her grandfather decades earlier, with her infirm mother and teen-age nieces, pointed out the public-school dormitory where she boarded until third grade. A housing development for the school’s teachers, many of whom have come to this isolated high desert from the Philippines, stood between the high school and a horse paddock. A sign welcoming visitors warned against social gatherings and listed other COVID prohibitions. Not far from the sole grocery store for nearly fifty miles, she showed me the post office where her midterm ballot was waiting for her, and the drop box where she would deposit it. “If Republicans get their way, they are going to do away with our voting rights,” she said. “That’s what really scares me.”
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A Grizzly bear with her four cubs near Signal Mountain in Jackson, Wyo., on June 15, 2020. (photo: George Frey/Getty Images)
Two new lawsuits want to hold federal and state leaders accountable for failing to protect the iconic predators.
Though filed separately, the two claims share a common concern: that wolf and grizzly bear populations in the Northern Rocky Mountains will be decimated.
In the past year, leading wildlife biologists have spoken out with rising alarm about the fate of the predators in Idaho, Wyoming, and Montana, where Republican lawmakers have advanced some of the most aggressive laws and proposals targeting the two species in recent history.
“I feel that our public officials at the federal and state levels do not care anywhere near enough about fish and wildlife,” Robert Aland, a retired attorney and longtime environmental activist who brought the federal case, told The Intercept. “There’s urgency to this,” he added. “You really can’t reverse the consequences of a dead animal.”
By law, the U.S. Fish and Wildlife Service should protect against threats to endangered species at the federal level. State wildlife agencies, meanwhile, should promote science-driven, nonpartisan management of species that are not endangered. For wolves and grizzlies, environmental advocates say systems are failing at both levels.
In the first of the lawsuits, filed late last month in the federal court, Aland petitioned a judge to declare that the director of U.S. Fish and Wildlife Service, Martha Williams, is illegally occupying her position and order her removed.
Under the law, the director of U.S. Fish and Wildlife Service is to have both scientific experience and education. As an attorney, Williams has an extensive history in the legal arenas of wildlife management but does not have a scientific degree. According to Aland, “This is in violation of the clear and unequivocal terms of the statute.”
Anything less than Williams’s removal, he argued, would lead to the “legal contamination” of several Endangered Species Act petitions concerning grizzly bears and wolves in the Northern Rockies.
U.S. Fish and Wildlife Service declined to comment on Aland’s lawsuit. On October 26, five days after the complaint was filed, an external affairs office at the Department of the Interior, Fish and Wildlife’s parent agency, sent Aland an unsigned email saying: “The Department is fully confident that Director Williams is well qualified and has all the necessary authority to lead FWS.”
In the past year, many top wildlife researchers in the Rocky Mountains have warned of a return to the bad old days of the 1880s following political changes in the region.
Westward expansion in the 19th century featured a devastating war on wildlife that led to the extirpation of wolves and the near-total extermination of grizzly bears. In the generations since, conservationists and wildlife biologists, including many working for state and federal agencies, have gone to great lengths in their attempts to help the two species recover.
Wolves were among the first animals listed under the Endangered Species Act and the first to be removed, following their reintroduction in Yellowstone National Park and Central Idaho in 1995. A similar effort has been made to restore grizzlies to the region, an arguably even more difficult task given the animals’ slow rates of reproduction and sensitivity to human-caused mortality.
Grizzlies are still protected under the Endangered Species Act, though the trophy hunting lobby is agitating to have them removed. Wolves in the Northern Rockies, meanwhile, are not protected under the law, and environmental groups are fighting to see them relisted.
While politics have always shaped carnivore conservation, recent events have left many scientists horrified and outraged that decades of work could soon be lost.
In January, 35 of the region’s most prominent wildlife biologists wrote an open letter objecting to petitions from Wyoming, Montana, and Idaho to delist grizzly bears. The signatories included the longtime head of the U.S. Fish and Wildlife Service grizzly bear recovery effort, who declared that he no longer supported delisting grizzly bears due to politically driven changes to carnivore management. If grizzlies were delisted, the biologists argued, they would likely face the same treatment that wolves across the Northern Rockies were already experiencing.
Outside the protected confines of Yellowstone National Park, Wyoming has long permitted a shoot-on-sight approach to wolves across much of the state. Last year, Republican lawmakers in Idaho and Montana took major steps in the same direction, passing laws to drastically slash wolf populations — in Idaho by as much as 90 percent — by granting individual hunters and trappers the authority to wipe out entire packs, and legalizing wolf bounty programs, aerial hunting, the use of snares, night hunting with night-vision goggles and other measures long seen as far outside the ethical bounds of “fair chase” hunting, which requires that hunters not take unfair advantage over the animals they seek.
In Montana specifically, the biologists wrote, science-based wildlife management “was replaced by anti-predator hysteria.”
“It doesn’t take a lot of imagination to realize that if grizzly bears were delisted and turned over to state management,” the letter said, “that the Montana legislature and governor would do the same thing to grizzlies that they are currently doing to wolves.”
In addition to the states’ requests to delist the bears, Wyoming Republicans Rep. Liz Cheney and Sen. Cynthia Lummis have introduced bills to not only delist grizzlies, but also to bar public comment and prevent any judicial review of the decision.
“It tramples on our separation of powers,” Aland said. The 82-year-old is no newcomer to wildlife litigation. He has been a pro se plaintiff in several lawsuits against U.S. Fish and Wildlife Service to keep grizzly bears listed as an endangered species. In his experience, citizen participation, particularly litigation, has proven “absolutely essential” in upholding the Endangered Species Act. His lawsuit seeking Williams is no different, he argued.
“There are three petitions to remove the grizzly bears ESA protection for a third time. That’s a scientific decision,” Aland said. Williams’s legal career wildlife management may help her navigate the cases, Aland argued, “but she’s not even close to qualified to make that biological, scientific decision.”
Aland’s litigation follows the traditional route of raising concerns about conservation through federal court, but the veteran environmental litigator noted that some of the most consequential decisions in wildlife management happen at the state level. “The state agencies have gotten a complete pass on everything,” he said. “They don’t get sued for anything, so they feel like they can operate with impunity.”
The second Rocky Mountain predator lawsuit filed last month aims to break that trend.
On October 27, the environmental groups WildEarth Guardians and Project Coyote, filed suit in a county court against the state of Montana; its Fish, Wildlife and Parks department; and the panel of citizen commissioners who make policy for FWP.
Calling for an injunction halting the state’s wolf hunt, which began last month, the groups argue that Montana violated its own constitution in proceeding with last winter’s wolf hunt and that Republicans’ goals for reducing the wolf population were based on unreliable population modeling.
“We’re advocating for federal action, of course, to get wolves back on the endangered species list, to get those protections there, but we just don’t know when that’s going to happen,” Lizzy Pennock, a carnivore coexistence advocate for WildEarth Guardians, told The Intercept.
Over the past year, Pennock and her colleagues have grown increasingly concerned watching FWP, once considered one of the most respected state wildlife agencies in the country, become a conduit for an unscientific, partisan approach to wolf management that undermined years of hard-won compromise in the state. “We have been really frustrated with FWP and what’s going on and we wanted to take action at a state level,” she said.
WildEarth Guardians and Project Coyote worked with Jessica Blome, a California-based attorney with Greenfire Law. In 2021, Blome filed a similar state-level constitutional challenge in Wisconsin, after licensed hunters nearly doubled their 119-wolf quota, killing 218 wolves in less than 72 hours.
Pennock is hopeful that Montana’s constitution, which is uniquely strong in protecting the state’s natural resources, including its wild animals, can serve as a means to protect against the kind of undemocratic and unscientific policymaking of the past two years. As The Intercept reported in an investigation in July, the 2020 election of Montana Gov. Greg Gianforte ushered in a radical reordering of the state’s wildlife governance, stacking the commission overseeing FWP with representatives from the trapping and trophy hunting industry, as well as campaign donors.
Among the core claims in the WildEarth Guardians-Project Coyote lawsuit is an argument is that the justification for Montana’s ultra-aggressive wolf hunt is based on unreliable data.
Montana’s state legislature meets every two years for 90 days. During the 2021 session, Republican state legislators Bob Brown and Paul Fielder advanced a series of anti-wolf bills — all signed into law by Gianforte, endorsed by his handpicked FWP commissioners, and enforced by the department — based on the argument that Montana had too many wolves and at least 450 of the animals needed to be killed. “We’re not talking about necessarily ethical management of them,” Fielder said in the run-up to the 2021 hunt. “We want to reduce wolf numbers.”
Fielder pointed to a “new and improved model,” known as the “integrated patch occupancy model,” or iPOM, that FWP was using to estimate wolf population numbers in the state.
The WildEarth Guardians-Project Coyote lawsuit noted that iPOM — used only in Montana and only for wolves — has come under heavy criticism from some of the region’s leading wildlife management experts. The wolf legislation Gianforte signed in 2021 called for the killing of at least 450 wolves; the season ended well short of that mark, with 273 wolves killed. While anti-wolf Republicans have pointed to the total as evidence that a more intensive hunt is needed, wildlife biologists have argued that it may suggest that iPOM’s estimate of how many wolves live in the state — roughly 1,164 — was inflated.
“It’s hard to say what we know about the population because I don’t know how much we know, and I think that’s the point,” Pennock said.
The Montana legislature reconvenes in January. In a public meeting in September, Fielder signaled that the state would ratchet up its war on wolves in 2023. “It was stated on the floor last session that this is not about ethical or fair chase, it was about reducing the number of wolves. Management starts with M-A-N, man. We’ve got to take control of things,” he said. “As we go into this next Legislative session, we’ve got to look at how we can meet the intent of the Legislation that was passed in 2021.”
Conservationists are bracing for the worst. According to Pennock, “It’s gonna be a field day.”
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