23 November 22
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Both court decisions were triumphs for conservatives and the religious right. Both majority opinions were written by Justice Samuel A. Alito Jr. But the leak of the draft opinion overturning the constitutional right to abortion was disclosed in the news media by Politico, setting off a national uproar. With Hobby Lobby, according to Mr. Schenck, the outcome was shared with only a handful of advocates. Mr. Schenck’s allegation creates an unusual, contentious situation: a minister who spent years at the center of the anti-abortion movement, now turned whistle-blower; a denial by a sitting justice; and an institution that shows little outward sign of getting to the bottom of the recent leak of the abortion ruling or of following up on Mr. Schenck’s allegation.
Denials have sprouted all around, from Alito himself to the couple whose casual dinner conversation Schenk maintains was one of the sources of his information about the Hobby Lobby leak. But it's clear from this starched and bleached NYT story that Schenck told his story to more than a few people, that Schenk was at the time a big swinging Schenk in the anti-choice movement, and that his particular project was infiltrating the federal judiciary.
In interviews and thousands of emails and other records he shared with The Times, Mr. Schenck provided details of the effort he called the "Ministry of Emboldenment." Mr. Schenck recruited wealthy donors like Mrs. Wright and her husband, Donald, encouraging them to invite some of the justices to meals, to their vacation homes or to private clubs. He advised allies to contribute money to the Supreme Court Historical Society and then mingle with justices at its functions. He ingratiated himself with court officials who could help give him access, records show. All the while, he leveraged his connections to raise money for his nonprofit, Faith and Action. Mr. Schenck said he pursued the Hobby Lobby information to cultivate the business’s president, Steve Green, as a donor.
I want a job in the Ministry of Emboldenment. Does it come with a plumed hat and a sword?
It is unclear if Mr. Schenck’s efforts had any impact on legal decisions, given that only Justices Alito, Antonin Scalia and Clarence Thomas proved amenable to the outreach, records show, and they were already inclined to overturn Roe v. Wade. That decision was only reversed this year after the addition of new conservative justices altered the court’s ideological makeup. But Mr. Schenck said his aim was not to change minds, but rather to stiffen the resolve of the court’s conservatives in taking uncompromising stances that could eventually lead to a reversal of Roe.
Nothing stiffens ol' Sam Alito's "resolve" like knuckling down on the already powerless. Nobody's resolve is ever stiffer than his.
Evidently, Schenk is in full sackcloth and ashes now, if you were looking for another nominee to the Day Late And A Dollar Short Club, Beltway Division. The Times goes deeply into his long history of anti-choice activism, including his attempt to ambush then-President Bill Clinton with an aborted fetus. (Safe, legal, and rare, right, Mr. President?) But he moved quite quickly away from street theater to top-rung Washington networking.
Mr. Schenck’s overtures met with a mixed response. Chief Justice Roberts and the court’s longtime swing voter, Justice Anthony M. Kennedy, were “polite but standoffish,” Mr. Schenck said. (Once, after he included a photo of himself with the chief justice in fund-raising material, he received a letter of rebuke.) But Mr. Schenck said he visited Justices Scalia and Thomas in chambers, where he shaped his prayers as political messaging, using phrases like “the sanctity of human life” to plea for an end to abortion. (Peggy Nienaber, who worked with Mr. Schenck, was recently recorded saying that the group had prayed with justices at the court.) Mr. Schenck also asked Justice Scalia to meet privately with the Rev. Frank Pavone, an incendiary anti-abortion activist who ran Priests for Life, a nonprofit that has been involved in issues before the court, as have Mr. Schenck and Faith and Action. “As I am sure you will appreciate, my position does not permit me to assist in the work of Fr. Pavone’s organization,” Justice Scalia wrote in a letter, adding, “I will be happy to meet him, however, at a time he can arrange with my secretary.”
Holy Jesus (if you'll pardon the expression), but Pavone is a real nut. He should have been on a watchlist, not in a justice's chambers. Then came the Hobby Lobby business.
In June 2014, when Mrs. Wright told Mr. Schenck that she and her husband would be dining privately with the Alitos, she and the minister agreed she would try to learn the outcome of the Hobby Lobby case, he said. “She knew I had an interest in knowing,” Mr. Schenck wrote in his letter to the chief justice. On June 4, the day after the meal, Mrs. Wright sent Mr. Schenck her cryptic email saying she had news. In the interview, Mrs. Wright said that while she did not have her calendars from those days, she believed the night in question involved a dinner at the Alitos’ home during which she fell ill. She said that the justice drove her and her husband back to her hotel, and that this might have been the news she wanted to share with Mr. Schenck.
'Hey, pal. Big news! I got sick at dinner! Yeah, at the Alitos. Didn't throw up on Sam, though.' Old dog declines to participate.
It is plain that the current, carefully engineered conservative majority on the court is made up of deeply corrupted individuals. Not financial corruption, mind you (at least as far as we know), but corrupted by Washington's true currency: access and ideology, combining to produce unaccountable power. Roberts has to know that the institution he leads is bleeding credibility by the bucketful. The Democrats in Congress are already talking about hearings; this is exactly the kind of thing that Sen. Sheldon Whitehouse has been banging on about for over a year now. The only way for Roberts to repair his institution's reputation is to cooperate with whatever hearings Congress opens and to accept a Code of Ethics for the justices—something they do not have at present—even if it comes from Congress.
In other news about the theocrats in the woodpile, Justice Amy Coney Barrett is being asked to recuse herself from ruling on 303 Creative LLC v Elenis, a gay rights case by former members of a secretive faith-based network to which she still belongs. From the Guardian:
The former members are part of a network of “survivors” of the controversial charismatic group who say Barrett’s “lifelong and continued” membership in the People of Praise make her too biased to fairly adjudicate an upcoming case that will decide whether private business owners have a right to decline services to potential clients based on their sexual orientation. They point to Barrett’s former role on the board of Trinity Schools Inc, a private group of Christian schools that is affiliated with the People of Praise and, in effect, barred children of same-sex parents from attending the school. A faculty guide published in 2015, the year Barrett joined the board, said “blatant sexual immorality” – which the guide said included “homosexual acts” – had “no place in the culture of Trinity Schools”. The discriminatory policies were in place before and after Barrett joined. The schools’ attitude, the former People of Praise members said, reflect the Christian group’s staunchly anti-gay beliefs and adherence to traditional family values, including – they say – expelling or ostracizing members of the People of Praise “community” who came out as gay later in life or their gay children.
Incidentally...
Barrett has never publicly acknowledged her membership in the community since becoming a judge and did not disclose it during her 2020 confirmation. It was reported at the time that the People of Praise erased all mentions and photos of her from its website ahead of her meetings with lawmakers.
Today's reading is from the Book of Omerta, Chapter V, Verses 12–18.
This is an easy one. Roberts should simply demand that Barrett take a walk on this case. He should also demand a public yes-or-no as to whether she belongs to the People of Praise. He can't make her do any of that, but simply by making the demand he can demonstrate to the public that he wants to get his own house in order before some Congress does it for him.
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Three stories of defenders of Ukraine who participated in the Revolution of Dignity. (photo:NV)
ALSO SEE: ‘How the Maidan Negotiated’ Tells the Story of Civil Society
Defeating Authoritarianism
The Revolution of Dignity began in Kyiv overnight on Nov. 22, 2013, starting a cascade of events that have changed the country and the people living in it forever.
The protest continued day and night and spread from the capital city to the entire country.
Overnight on Nov. 30, when there were about 400 people on the Maidan, mostly students, they were surrounded by armed fighters of the Berkut special riot police unit. The latter violently dispersed the demonstrators – they were chased and beaten even hundreds of meters from the Maidan. About 80 protesters were injured.
The Ukrainian public were shocked and outraged, and more than a million Ukrainians came out to protest in Kyiv. Some rally participants joined the protests in the capital from different regions.
The most tragic stage of the Revolution of Dignity took place on Feb. 18-20, 2014. Then, using firearms, the security forces killed more than 100 people in the capital’s centre, several dozen went missing, and more than 1,000 protesters were injured.
After the brutal executions of the revolution’s participants, Yanukovych and his entourage fled the country.
On the ninth anniversary of the Revolution of Dignity events, NV spoke with three of its active participants – Vitaliy Kuzmenko, Yevhenia Zakrevska, and Bohdan Masliak, who are currently defending Ukraine in the war against Russia.
They talked about what the revolution had become for them, about their most important memory from the Maidan, the decision to go to war, their impressions of serving at the front, and shared their thoughts on how the battle with the aggressor country would end.
Their answers are given in the form of a first-person narrative.
Nine years of challenges
Vitaliy Kuzmenko
The events of the Revolution of Dignity determined the vector of our movement, the development of our state and how we will live in the future. From today’s height, we can see what changes are taking place (in the country): they are going slower than we would like, but we still can choose our future and develop rather than returning to the quagmire from which we got out in 1991.
Now (the Russians) are trying to drag us back into this swamp. (The revolution) is one of the elements of the formation of our modern nation, political and democratic, with the values with which we live, and with which our children will live.
For me personally, the revolution has been a constant period of challenges from that time until today. Because first there was a revolution, then the war began, and later I was in the ATO (Anti-Terrorist Operation) until 2016, and I have had to fight again since Feb. 24. This is a certain responsibility that you take upon yourself: if you have already become involved in defending certain values, a certain direction, accordingly, you have to constantly make efforts for this throughout the years.
The most important memory from the Maidan is the people and the sense of community that existed during the revolution (especially at the protests), mutual support, mutual help and purposefulness of people who understood why they were there and that everyone had to work together to achieve a result. For Ukraine, this was a rare case of such unity. Later on, it became clear that this is not rare for us, but it happens most often when there are certain external challenges.
Ukrainians are quite strong individualists, everyone has their own opinion, and that’s normal. We can quarrel quite often inside the country, but we always unite when someone from outside comes telling us what to do, how to live, etc. Actually, this is such a certain national character trait.
If to talk about the events of the revolution, I had to go through almost all of them. But I remember the most the night of Nov. 30 (Vitaliy was severely injured as a result of being beaten by the Berkut forces). I was still a young student, and that night I felt for myself how they were trying to turn us (as I perceived at that time) into Belarus, a totalitarian state, where expressing one’s own thoughts is already a crime.
And the feeling that came on Dec. 1: being in hospital, I saw the reaction of society, which opposed such prospects for itself. This is something that sticks in your memory and stays with you. Unfortunately, I had to go through tougher events in the future that took place during the unfolding of the revolution, because the events escalated and even in February, they were not much different from what happened later at the front.
I have had an open wound since the revolution: a final legal verdict on these events. Even though so much time has passed and even in the current conditions, this (issue) is still not closed. This is a negative factor that remains with us, we cannot calmly move on, without looking back at every anniversary of the revolution, that, after all, judgments and responsibility for these events have not been legally passed. And the problem is that even in the conditions of war, this issue is not closed. Although, when, if not now?
I went to the front in 2014 and stayed there until 2016
I had a natural motivation (both then and on Feb. 24) to protect my home, to protect my relatives from the attack that was taking place from Russia. Although before the start of the war, I never thought that I would end up in the army, I never planned it, I had completely different plans for life. But when the time demands to protect your country, there is no such a question “to go or not to go,” but another one – in which unit and what skills you need to be effective in battle.
I started my service in a volunteer unit on the basis of the UNA-UNSO organization, then I served in the already formed 54th intelligence unit and ended my service in the 121st separate intelligence battalion. I’m currently serving in the south. Since Feb. 24, I initially took part in the defense of Kyiv – we fought north of the capital city on the right bank of the Dnipro River, then I ended up in the south in Kherson Oblast. Now I’m no longer in the operative unit but have a slightly different line of work. But in fact, since Feb. 24, I have already changed several units, moving with the way our front is moving. I remain in the structure of military intelligence.
The more you fight, the more your perception of what is happening directly on the front atrophies.
How this war will end is a rather multifaceted question. In any case, it will end with our victory. We can already say that we have won. But for this to become a fact, will have to make great efforts and sacrifices. Because what is unfolding now since Feb. 24 is a continuation of those events that preceded it (since 1991, when Ukraine regained its independence).
Many people blame (Russian dictator Vladimir) Putin for this war and that it is his decision to wage war, but it is a reflection of the expectations of Russian society in general. Because, if we consider other rulers of Russia, who among them was different from Putin? They didn’t really have any differences: it’s just that someone had more opportunities and tried to capture their neighbors, and someone just tried to keep the territories they conquered.
Therefore, this is not a fight against Putin and his entourage, but against Russia and its senseless in the 21st century imperialism in the perception of society.
But they have now mobilized 300,000 people, and I think they will mobilize the same number and send them to slaughter. They are also trying to transfer their economy to military lines. Only after all this does not help them, after they understand the fatality of defeat, our victory will come.
Maidan was saying ‘no’ to dictatorship
Yevhenia Zakrevska
The Maidan was a test of the strength of the legal concepts and theories that I learned at the university, which I believe are correct and without which it is difficult for me to imagine myself as a lawyer. Human Rights. Social contract. Rule of law. Theory of the state and law. Freedom of speech. The right to peaceful assembly. The right to self-defense. The right to revolt. In fact, I won for myself the right to continue to call myself a lawyer in this country and proved (first of all to myself) that my activity is not devoid of meaning.
After all, I cannot imagine that I would continue to work as a lawyer in a country where, after the night of Nov. 30, 2013, blood was simply washed off the Maidan, the knocked-out teeth were fixed, a couple of dozen protesters were arrested in addition to hundreds of beaten and broken ones, and they would formally deny in the official statements the detention of “some lawbreakers.” And everyone else would just accept it. And that was the most likely scenario. It was practically inevitable. I have already seen this in neighboring countries. But I physically could not allow this to happen to us, to me.
The evening of Feb. 18 (became the most important memory for me). The storming of the Maidan (was taking place). The barricade (laid) across Khreshchatyk Street. I was standing 10 meters from it. There were 15-20 people at the barricade. Four of them were my friends. Two of them were minors. And I’m standing, following their heads – helmets, I see how an armored personnel carrier is crashing into a barricade, how people are falling from the barricade, I freeze, I looked closely – not my friends. And I realize that now these 20 people, a quarter of whom are my friends, and half of whom are minors, are all those who protect the Maidan from this side, who protect me in particular. These are just these ordinary guys. And I understand how much everything depends on each of them. From each of us.
I found myself at the front 10 months ago – on Feb. 24, when the full-scale invasion began. When the Russian army was a few dozen kilometers from Kyiv. When one day I lost the opportunity to work as a lawyer because the courts stopped working. And when there was a real threat of the encirclement and capture of my city. When I imagined what we later saw in reality in Bucha and Irpin. My personal motivation was very simple – to get a gun and be able to shoot back in case of anything. And I went to the territorial defense’s collection point. I signed a contract and received a machine gun.
They say there are three typical natural responses to danger: freeze, run or fight. I did not consider the option of running away, it contradicts my entire worldview. This is my favorite city, my country. Why should I run away and leave everything to the barbarians? Dying was very scary, it was the threat of being helpless.
I’ve been afraid to hide under the blanket since childhood: when someone knocks on the window at night, I definitely have to get out and check. All I had to do was fight. Or at least to be ready to fight: to have a weapon, to have my own place and role in the ranks of those who will fight. Know what to do.
Perhaps this is my innate reaction to danger. Or maybe it is not innate but acquired.
[Strongest impression from serving on the front?] The process of adjusting, searching, and observing the targets is really a gamble.
How do I see victory? Ukraine returns to the borders of early 2014. And both the Crimea, and the Donbas, and all other captured regions are freed from the Russians. A demilitarized zone (should be) several dozens or hundreds of kilometers deep from our border into the former Russian Federation. Russia ceases to exist as a country. Forever. Russia’s successor countries pay adequate compensation for the damage caused, and our country is being rebuilt at their expense. They are forbidden to have weapons, not only nuclear weapons, but any strategic weapons in general. Other countries agree not to sell weapons to these territories. And adhere to these agreements. And, you know, that’s really what it comes down to. After all, calls to the Armed Forces of Ukraine to go to the Kremlin and free them from Putin are increasingly heard from the liberal Russian public. And even claims, what are we still delaying and shifting the responsibility for it to them.
I wanted a future for my children
Bohdan Masliak
The Revolution of Dignity was a defense of our rights, our path. It was spontaneous. It was not planned. I was abroad on vacation when it all started. I saw the beating of the students (on Nov. 30) and made a decision. It’s like, you know: children are beaten, our people are beaten – we must protect them. Also, we know very well what kind of regime it was, where it could lead us, and we are actually now sorting out the consequences of this. This once again emphasizes that we were right and were following the right path. So, it was for me… I wanted a future for my children.
What is most etched in my memory from the Maidan is how we pulled out the wounded, who actually died in our arms. The last three days of the revolution, starting on Feb. 17, 2014, merged into one day for me. The most vivid memory is when I tried to stop two people who were moving up Instytutska Street (place of mass massacre). They were closer behind the barricade, I saw that they (security forces) were already shooting, and I did not manage to stop them, they just did not react to me. And they were already being carried back (dead). It’s one of those vivid memories because it shook me that I could have somehow stopped them, but it didn’t work, unfortunately.
Since 2014, I volunteered and was at the front probably more often than some people served. But once I signed a contract with the 503rd marine battalion as a reservist.
I have been at war as a marine since Feb. 24, 2022. Since I’m a contract soldier, we were notified around Feb. 20 when we must be in the unit. So, when it all started, we were ready to leave the same day.
The fact that we are having success in some areas of the front is very wonderful. But in reality, we depend on many factors, not only what is happening at the front. The feats of the people who are at the front and doing this war are superimposed on the country’s foreign and economic policy. That is, the aid we receive is also based on the successes of the Ukrainian army. If we were not successful, no one would help us much.
If you remember the entire chronology of events, no one believed in us at the beginning of the invasion. At that time, many believed that we would not last even a week. But it turned out as it turned out. And here we are fully dependent on the help of NATO countries. Whether we want it or not. Because we did not prepare for war during all the years of independence. Since 2014, when the war began, we have not been preparing for a full-scale war. Neither the previous nor the current president believed in it.
The full-scale destruction of Russia as an enemy would be a victory. I understand this is not very realistic if we take the current situation. At least, I would like to throw them (Russians) out of our country. Then we will feel that we have won. And the maximum program is to destroy Russia as a nation. Because years will pass, and it’ll all start again. If we look back in history, we can see that they lick their wounds, recover, and start the same thing again. As soon as they feel that they are stronger than someone, they come and take what they need.
Unfortunately, the war won't be quick.
Therefore, I wish that they would hear the air raid alerts very often in Moscow, that they would feel all this horror and pain that our people are currently suffering.
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Former President Donald J. Trump spoke at Mar-a-Lago last week. (photo: Saul Martinez/NYT)
ALSO SEE: Supreme Court Denies Trump Bid to Withhold Tax Returns From Congress
Two of the three judges had already expressed skepticism about a court’s intervention after the F.B.I. seized records from the ex-president’s home.
At a 40-minute hearing in Atlanta, the three-member panel of the U.S. Court of Appeals for the 11th Circuit seemed to embrace the Justice Department’s position that a federal judge had acted improperly two months ago when she ordered an independent arbiter to review the documents taken from Mr. Trump’s Florida compound, Mar-a- Lago.
Through their questions, the panel expressed concern that Judge Aileen M. Cannon, who appointed the so-called special master, had acted without precedent by ordering a review of the seized material. The panel also suggested that Judge Cannon, who was appointed by Mr. Trump, had overstepped by inserting herself into the case and trying to bar the government from using the records in its investigation into whether Mr. Trump had illegally kept national security records at Mar-a-Lago and obstructed the government’s repeated efforts to retrieve them.
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Law enforcement, including the FBI, work the scene of a mass shooting at a Walmart on Wednesday in Chesapeake, Va. (photo: Alex Brandon/AP)
In a press conference early Wednesday, Chesapeake Police Chief Mark Solesky said the gunman's identity would be held until his next of kin had been notified, but that he was an employee of the store.
He was found dead at the scene.
Police declined to comment on whether the victims were shoppers, employees or both. Stressing that it could take days to investigate, police said they couldn't say whether the shooter had been targeting anyone.
It's also unclear how many people were inside the store at the time of the shooting, during what are normally popular pre-Thanksgiving shopping hours.
The shooting came three days after a person opened fire at a gay nightclub in Colorado, killing five people and wounding 17. Last week, a former college football player shot three of his teammates on the University of Virginia campus.
And since 2019, Americans have witnessed at least five deadly shootings inside supermarkets, including one that killed 10 shoppers, most of them Black, at a Buffalo supermarket this May.
Tuesday's shooting also brought back memories of a 2019 shooting in neighboring Virginia Beach that left 12 dead. Then-Gov. Ralph Northam, a Democrat, responded by proposing a range of gun reform measures for Virginia, the state that's home to the NRA.
After a backlash from pro-rights groups, including a high-profile 2020 rally of thousands of armed protestors, the measures saw mixed success. New rules for background checks and limits on the number of firearms a person can purchase went into effect last year.
Tuesday's gunman was believed to have been carrying a single pistol and acted alone, Solenksy said.
Police say they arrived on the scene at 10:14 p.m. ET on Monday, two minutes after the first 911 call, and had officially cleared the store by 11:20 p.m.
"Chesapeake Police SWAT Team executed a search warrant at the suspect's residence," Solenksy added. "With the help of Virginia State Police, we cleared the house. We have reason to believe that there's no risk to the public at this time."
Four patients from Walmart are being treated at Norfolk General Hospital, but their conditions weren't immediately available, authorities said. (A spokesperson for the hospital earlier said they were treating five patients; it's unclear if one had been released.)
Walmart tweeted early Wednesday that it was "shocked at this tragic event."
Virginia Gov. Glenn Youngkin echoed that sentiment, saying in a tweet that "heinous acts of violence have no place in our communities" and that he was in touch with law enforcement officers.
Chesapeake Mayor Rick West said in a statement he was "devastated by the senseless act of violence" and described his city as a "tightknit community."
Chesapeake is a city of about a quarter million people along the southern Virginia coast.
In what was most likely his last appearance in the White House briefing room before he retires, Dr. Anthony Fauci urged Americans to get an updated booster. (photo: Michael A. McCoy/NYT)
The latest booster shots provide better protection than original vaccines, CDC data shows ahead of health official’s retirement
Fauci appeared ahead of his retirement next month as America’s top public health official. The director of the National Institute of Allergy and Infectious Diseases since 1984, Fauci became a household name as the public face of the US government’s response to the pandemic.
“So my message and my final message, maybe the final message I give you from this podium, is that please for your own safety, for that of your family, get your updated Covid-19 shot as soon as you’re eligible to protect yourself, your family and your community,” Fauci said.
The latest real-world study of updated Covid boosters, published in the CDC’s Morbidity and Mortality Weekly Report, offered the first evidence that the new vaccines by Pfizer/BioNTech and Moderna provide better protection compared to the original shots.
The study of more than 360,000 people indicated that the boosters offer increased protection against new variants in people who have previously received up to four doses of the older vaccine.
Since their introduction in September, the vaccine boosters, which contain both original and Omicron BA.4/5 coronavirus strain, provided greater benefit to younger adults aged 18-49 years that those in the older age group.
When given eight months or more apart, relative vaccine effectiveness of the new boosters compared with the original vaccine shots was 56% among people aged 18-49 years, 48% among those 50-64 years and 43% among people aged 65 and older, the study showed.
The variation in effectiveness was lower, in the range of 28-31%, when the boosters were given two to three months apart.
The authors of the study, however, warned that participants may not have recalled their vaccination status, previous infection history and underlying medical conditions, and that low acceptance of bivalent boosters could have biased the results.
So far, around 35m updated boosters have been administered across the US, representing around 10% of the total population, as per government data.
The authors warned that the study may not be generalizable to future variants, as the dominant variants keep changing.
In just the last two months, the BQ.1 and BQ1.1 subvariants have become the dominant strains of coronavirus in the United States, taking over from the BA.5 subvariant of Omicron, based on which the vaccines were updated.
Fauci appeared alongside the White House’s coronavirus response coordinator Ashish Jha to address the Covid situation ahead of the holiday season.
With some news outlets breathlessly warning of a potential “tridemic” – a possible simultaneous surge of Covid, influenza and RSV – the Biden administration has announced a new six-week campaign to encourage Americans to get boosters in anticipation of the holidays.
At the traditional annual pardoning of a Thanksgiving turkey on Monday – which the president delivered complete with “God love yas” and grandad jokes, as is also traditional – Biden concluded on a serious note, encouraging Americans to get both coronavirus and flu vaccines.
On Tuesday, White House press secretary Karine Jean-Pierre said of Fauci: “For so many Americans throughout our fight with Covid, Dr Fauci has been a source of information and facts. But Dr Fauci’s leadership and legacy stretch far beyond the past couple of years … whether it be HIV/Aids, Ebola or Covid-19, for close to four decades and under seven Republican and Democratic presidents, Dr Fauci has always led with the science. And our country is stronger and healthier because of his leadership.”
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Some Bolsonaro supporters have called on the far-right president to reject the election results. (photo: Mariana Greif/Reuters)
The far-right president has a long history of casting doubt on election results and pushing anti-democratic rhetoric.
Bolsonaro’s allies have filed a complaint with the country’s Superior Electoral Court (TSE) seeking “extraordinary verification” of the election results, according to a CNN Brasil report on Tuesday.
They cited the results of their own audit into the October 30 run-off election, in which Lula eked a narrow victory over the incumbent president. Bolsonaro’s allies claim the audit shows evidence of “malfunction” in older electronic voting machines.
“There were signs of serious failures that generate uncertainties and make it impossible to validate the results generated,” the complaint alleged, calling for ballots processed in those machines to be “invalidated”.
With Lula’s victory verified by TSE and acknowledged by political figures in Brazil and around the world, the complaint is unlikely to change the final results.
However, the move could galvanise supporters of the president whose anti-democratic rhetoric has sparked fears he could disrupt the peaceful transition of power.
In the months leading up to the election, Bolsonaro spread unsubstantiated claims that the country’s election system was riddled with fraud. Critics worried that the former army captain — who has praised Brazil’s former military dictatorship in the past — would seek to invalidate the results.
Those concerns eased as the election proceeded without notable issues. After nearly two days of silence following his loss, Bolsonaro reportedly told a Brazilian Supreme Court judge: “It is over“.
However, while Bolsonaro authorised his government to begin the transition process, he never conceded defeat. Bolsonaro’s supporters took to the streets, calling on the military to intervene to stop Lula’s victory.
Brazilian police said truckers, a key Bolsonaro constituency, had either partially or fully blocked highways at 271 points as part of the protests.
The Supreme Court ordered for the roadblocks to be removed but some Bolsonaro supporters have continued to call on the president to reject the will of the voters. The complaint filed on Tuesday is likely to drive further protests.
Alexandre de Moraes, the Supreme Court justice who leads the TSE, said in a ruling that Bolsonaro’s right-wing electoral coalition must present its full audit for both rounds of last month’s presidential election within 24 hours, or he would reject the complaint.
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Lottie Sam, front right, and other women prepare salmon in Toppenish, Wash., before a ceremony held by the Confederated Tribes and Bands of the Yakama Nation. (Photo: Tony Schick/OPB)
For decades, the U.S. government has failed to test for chemicals and metals in fish. So, we did. What we found was alarming for tribes.
The sacred ceremony, held each year on the Yakama reservation in south-central Washington, honors the first returning salmon and the first gathered roots and berries of the new year.
“The only thing we don’t eat is the bones and the teeth, but everything else is sucked clean,” Sam said, laughing.
Her mother and grandmother taught her that salmon is a gift from the creator, a source of strength and medicine that is first among all foods on the table. They don’t waste it.
“The skin, the brain, the head, the jaw, everything of the salmon,” she said. “Everybody’s gonna have the opportunity to consume that, even if it’s the eyeball.”
Sam is a member of the Confederated Tribes and Bands of the Yakama Nation. They are among several tribes with a deep connection to salmon in the Columbia River Basin, a region that drains parts of the Rocky Mountains of British Columbia, Canada, southward through seven U.S. states into the West’s largest river.
It’s also a region contaminated by more than a century of industrial and agricultural pollution, leaving Sam and others to weigh unknown health risks against sacred practices.
“We just know that if we overconsume a certain amount of it that it might have possible risks,” Sam said as she gutted salmon in the bustling kitchen. “It’s our food. We don’t see it any other way.”
But while tribes have pushed the government to pay closer attention to contamination, that hasn’t happened. Regulators have done so little testing for toxic chemicals in fish that even public health and environmental agencies admit they don’t have enough information to prioritize cleanup efforts or to fully inform the public about human health risks.
So Oregon Public Broadcasting and ProPublica did our own testing, and we found what public health agencies have not: Native tribes in the Columbia River Basin face a disproportionate risk of toxic exposure through their most important food.
OPB and ProPublica purchased 50 salmon from Native fishermen along the Columbia River and paid to have them tested at a certified lab for 13 metals and two classes of chemicals known to be present in the Columbia. We then showed the results to two state health departments, U.S. Environmental Protection Agency officials and tribal fisheries scientists.
The testing showed concentrations of two chemicals in the salmon that the EPA and both Oregon and Washington’s health agencies deem unsafe at the levels consumed by many of the 68,000-plus Native people who are members of tribes living in the Columbia River Basin today. Those chemicals are mercury and polychlorinated biphenyls, or PCBs, which after prolonged exposure can damage the immune and reproductive systems and lead to neurodevelopmental disorders.
The general population eats so little fish that agencies do not consider it at risk, which means that government protocols are mostly failing to protect tribal health. In fact, the contaminants pose an unacceptable health risk if salmon is consumed even at just over half the rate commonly reported by tribal members today, according to guidelines from the EPA and Washington Department of Health.
The potential for exposure extends along the West Coast, where hundreds of thousands of people face increased risks of cancer and other health problems just by adhering to the salmon-rich diet their cultures were built upon.
Chinook salmon, like the ones OPB and ProPublica sampled, migrate to sea over the course of their lives, where they pick up contaminants that Northwest waters like the Columbia and other rivers deposit in the ocean. EPA documents obtained under the Freedom of Information Act show that even with minimal data available, agency staff members have flagged the potential for exposure to chemicals in salmon caught not just in the Columbia but also Washington’s Puget Sound, British Columbia’s Skeena and Fraser rivers, and California’s Sacramento and San Joaquin rivers.
Tribes entered into treaties with the U.S. government in the mid-1850s, ceding millions of acres but preserving their perpetual right to their “usual and accustomed” fishing areas; the Supreme Court later likened this right to being as important to Native people as the air they breathe.
But time and again, the U.S. has not upheld those treaties. Damming the Columbia River destroyed tribal fishing grounds and, along with habitat loss and overfishing, drove many salmon populations to near extinction, wiping some out entirely. Previous reporting has shown how the federal government failed in its promises to compensate tribes for those losses and in some cases worked against tribes’ efforts to restore salmon populations. In addition, the EPA has allowed cleanups to languish, and state regulators have been slow to rein in industrial pollution. That toxic pollution impairs the ability of salmon to swim, feed and reproduce.
Continually poor and declining salmon numbers have prompted the White House to acknowledge an environmental justice crisis in the Columbia River Basin.
The results of our testing for toxic chemicals point to yet another failure.
A Toxic Mystery
Questions over fish safety go back generations in some tribal families, predating government concerns by decades.
Karlen Yallup remembers tribal elders telling her the water had been clean enough to drink at Celilo Falls, their primary fishing site on the Columbia River. Yallup’s great-great-grandparents, members of the Warm Springs tribe, lived near the falls and would fish there every day.
As the industrial revolution boomed, farming, industry and urban sprawl grew throughout the basin. In 1957, the falls were submerged by water that pooled behind The Dalles Dam — one of 18 built on the Columbia and its main tributary, the Snake River, to turn the river into a shipping channel, irrigate farmland and generate hydroelectricity. By then, pollution from those new industries had dirtied the water.
Tribal elders told Yallup they knew the water was no longer clean enough to drink when they could see changes and hear differences in the way it ran. They also worried about the health impacts of Hanford, a sprawling nuclear weapons production complex dozens of miles upstream. Hanford became one of dozens of heavily polluted sites across the Columbia basin, considered one of the largest and most expensive toxic cleanups in the world.
Yallup said her elders began to suspect that whatever was getting into the water was getting into the fish. They became “very worried about the salmon getting the family sick,” she said.
It wasn’t until the 1990s, however, that the government and the broader public drew attention to the risk to people eating those fish.
In 1992, despite two decades of improving water quality under the Clean Water Act, an EPA study found chemicals embedded in carp from the Columbia River. The results alarmed the region’s tribes, which responded by working with the agency to test more fish and survey members about their fish consumption rates.
Those efforts revealed that tribal people, on average, eat six to 11 times more fish than non-tribal members. They also detected more than 92 different contaminants in the fish, some at levels high enough to harm human health.
In the years that followed, EPA staff expressed concerns over toxic contamination in report after report, but little happened in response. The issue officially became an agency priority during the administration of President George W. Bush, but the EPA repeatedly fell short of its goals to clean up toxic sites as responsible parties fought over how much it would cost, who would pay and how quickly it needed to be done.
The agency also never had the money to fulfill its plans for continuous monitoring, said Mary Lou Soscia, the Columbia River coordinator for the EPA, leaving the agency unable to determine whether the river was getting cleaner.
“Nobody wanted to pay attention to toxics,” said Soscia, who has been working on river cleanup since the late 1990s. “But there are small amounts of studies that give us like those yellow blinking lights. And when tribal people eat so much fish, it’s something we have to be really, really concerned about.”
Finally, Oregon delivered in 2011 what was hailed as a breakthrough moment: It adopted new water-quality standards to protect tribal people’s health. The state vowed to restrict the amount of chemicals released by industrial facilities and wastewater plants so that people could eat over a third of a pound of fish per day without increasing their risk of health problems. That amount of fish was based on a survey of tribal members done in the 1990s.
Other states that share the Columbia River or its tributaries were slow to follow suit. Washington waited a decade to adopt equally protective standards; Idaho and Montana still have not.
But while Oregon was ahead of its neighbors, state regulators took few steps to ensure polluters actually met the state’s new limits. For as many as half the contaminants at issue, the state said it didn’t have the technology to measure whether polluters met the new stricter criteria.
The Oregon Department of Environmental Quality also said it didn’t have the staff to keep pollution permits updated. It let more than 80% of polluters operate with expired permits, meaning they weren’t even being held to new standards.
When asked in September for evidence of how the state’s highly touted standard has actually improved water quality, the DEQ said it “does not have significant amounts of data on the concentration of bioaccumulative pollutants in the Columbia River, and therefore does not have any trend information.”
Jennifer Wigal, DEQ’s water quality administrator, said the standards were implemented not because of pollution but to ensure that tribal diets were represented.
Wigal also said that when companies release harmful contaminants into the river, most are at such low concentrations that they are below the agency’s ability to detect them. Additionally, most of the contamination affecting fish, the DEQ said, comes not from those polluters but from runoff and erosion from industries like agriculture and logging.
But the DEQ also has yet to curtail that source of pollution. Along the Willamette River, which flows through Oregon’s most populated areas and feeds into the Columbia, the EPA determined last year that the state needed to cut mercury pollution from these sources by at least 88% if it was going to meet its standards for protecting human health.
Congress tried to take matters into its own hands, but it fell into the same pattern of bold plans and delayed action. In 2016 it amended the Clean Water Act, the seminal law governing water pollution nationwide, to require the EPA to establish a program dedicated to restoring the Columbia. It took four years and a nudge from the Government Accountability Office for the program to actually begin. That same year, in 2020, an EPA regional staffer found that broad swaths of the river were polluted with toxic chemicals and were below the standards of the Clean Water Act.
In an emailed response to questions, the EPA repeatedly said Congress gave the agency orders to clean up the Columbia but failed to provide the agency with funding to carry out the work. Even after the agency designated the Columbia an EPA priority, finally elevating the river to the same status as other major ecosystems like the Great Lakes and the Gulf of Mexico, it received no additional funding and staff for cleanup or long-term monitoring.
“That needs to happen,” Soscia, the agency’s Columbia River coordinator, said. “It hasn’t happened.”
A Disproportionate Risk
Had the government followed through on its plans for monitoring, it might have found what OPB and ProPublica’s testing revealed: that contamination was high enough that it would warrant at least one of the state health agencies to recommend eating no more than eight 8-ounce servings of salmon in a month.
For non-tribal people, who on average eat less than those eight monthly servings, the risk is minute. But surveys show members of some tribes in the Columbia River Basin on average eat twice as much fish as the agency’s recommended eight monthly servings.
The testing also revealed the potential for increased cancer risks from PCBs and another class of chemicals known as dioxins. Given an average Columbia River tribal diet, according to recent surveys commissioned by the EPA, the risk is as much as five times higher than what the EPA considers sufficiently protective of public health. This means that, based on the news organizations’ samples, roughly 1 of every 20,000 people would be diagnosed with cancer as a result of eating the average tribal diet — about 16 servings of fish each month — over the course of a lifetime.
The harm goes beyond the raw numbers. That’s because the risk is compounded by exposure from other fish and other toxic chemicals, such as pesticides and flame retardants in those same waters, that weren’t included in OPB and ProPublica’s testing because of cost constraints. Those chemicals are known to accumulate in fish. Beyond fish contamination, tribal populations already experience disproportionately high rates of certain cancers.
Public health officials caution that any cancer risks must be weighed against the many health benefits of eating fish, including the potential to lower the risk of heart disease. The Oregon and Washington health departments, like those of many states, do not assess cancer risk when setting public health advisories.
We showed the result of our testing to public health officials in both Washington and Oregon. Both groups said they would be taking further steps to assess salmon and the exposure risk to tribes.
Emerson Christie, a toxicologist with the Washington Department of Health who analyzed the results, said the department will consider whether to issue an official public health advisory based on the news organizations’ findings. “These results do indicate that there’s a potential for a fish advisory,” Christie said.
David Farrer, an Oregon Health Authority toxicologist who also reviewed the results, said the agency would coordinate with state environmental regulators and the Columbia River Inter-Tribal Fish Commission about additional testing or potential advisories.
Public health advisories and cooking guidance are a last-resort attempt to protect people when larger cleanup efforts fall short or don’t happen at all.
These advisories can also be plagued with delays. When tribes collected and tested tissue from the Pacific lamprey back in 2009, they found that the culturally important eel-like fish contained dangerous levels of mercury and PCBs. The Oregon Health Authority responded by issuing a consumption warning in October — but the process took 13 years.
And while advisories put constraints on tribes’ traditional diets, they don’t help with the larger issue: that the waters from which they are eating fish are still contaminated — with no plan to clean them up.
“The long-term solution to this problem isn’t keeping people from eating contaminated fish — it’s keeping fish from being contaminated in the first place,” Aja DeCoteau, executive director of the Columbia River Inter-Tribal Fish Commission, said when the lamprey advisory was issued.
Wilbur Slockish Jr. is a longtime fisherman who serves on the inter-tribal fish commission.
It is wrong, Slockish said, for the government to allow pollution and then, instead of cleaning it up, decide it can tell people not to eat the fish they always have.
“That’s on the back of our people’s health, the health of the land, the health of the water,” he said. “We’re not disposable.”
A Fight Too Big to Ignore
Slockish eats a lot of fish.
He relies on stockpiles of jarred, dried or smoked salmon to get him through the winter. He said it’s not uncommon for him to eat more than a pound of salmon or lamprey in one sitting, sometimes multiple times per day.
He’s a direct descendant of the Klickitat tribe’s Chief Sla-kish, who signed the Yakama Treaty of 1855, guaranteeing his people’s right to the fish. At that time, studies estimate that, on average, Native people in the region ate five to 10 times more fish than they do today. Slockish is not going to stop eating fish because of warnings about chemical contamination.
He doesn’t see the alternatives as any better. Many in his family have struggled with heart disease, diabetes and cancer. He connects it to their being forced away from the river and made to eat government-issued commodity foods full of preservatives.
“All of our foods were medicine,” he said. “Because there were no chemicals.”
Research across the globe has connected the loss of traditional diets with spikes in health problems for Indigenous populations. In one West Coast tribe, the Karuk of Northern California, researchers found a direct link between families’ loss of access to salmon and increased prevalence of diabetes and heart disease.
Public health experts agree that wild salmon, wherever it’s caught, remains one of the healthiest sources of protein available, and that chemicals can also contaminate other foods beyond just fish.
Tribal leaders also worry more about their members getting too little fish than too much of it. And because salmon are a primary income source for many tribal fishers, they worry that fears over fish safety will drive away customers.
But for Columbia River tribes, fish are also a cultural fixture, present at every ceremony. They are shared as customary gifts. Babies teethe on lamprey tails. Salmon heads and backbones are boiled into medicinal broths for the sick and elderly.
Tribes up and down the river continue to fight for their right to a traditional diet and to clean fish.
Yallup, from the Warm Springs tribe, decided to become an advocate for salmon after hearing from her grandmothers how much more limited their traditions had become.
She’s on track to graduate in December from Portland’s Lewis … Clark Law School. Yallup chose the law profession to fight for salmon, she said, and to change laws to protect the river from pollution.
“If I had a choice, I would just be a fisherman. I felt the responsibility to have to leave the reservation and have to go to law school,” Yallup said. “It’s such a big fight now. It’s kind of impossible to ignore.”
Earlier this year, tribes successfully lobbied for one of their Columbia River fishing sites just east of Portland, known as Bradford Island, to be added to the list of polluted places eligible for cleanup money from the federal Superfund program.
In August, the EPA received $79 million to reduce toxic pollution in the Columbia River as part of President Joe Biden’s Bipartisan Infrastructure Law. It is the most money ever dedicated to reducing Columbia River contamination. It’s also a fraction of what tribes and advocates say is needed.
The Yakama Nation is using some of that EPA money to lead a pilot study into the kind of long-term monitoring that has been a recognized need for decades.
Laura Klasner Shira, an environmental engineer for Yakama Nation Fisheries, said the tribe put together four federal grants to pay for its pilot study, which is limited to the area around Bonneville Dam, east of Portland. They hope someday it could grow to span nearly the entire length of the Columbia, up to the Canadian border. But it took 10 years to get as far as they are now.
“It’s disappointing that the tribes have to take on this work,” she said, noting that government agencies not only have treaty and legal responsibilities but better funding. “The tribes have been the strongest advocates with the least resources.”
They will sample resident fish, young salmon on their way to the ocean, and adult salmon after they’ve returned.
They have two years to finish the work. After that, funding for their monitoring becomes a question mark.
Methodology
Oregon Public Broadcasting and ProPublica reporters conducted interviews and listening sessions with tribal leaders, toxicologists and public health experts, many of whom became informal advisers throughout the project. Tribal leaders expressed support and interest in additional fish testing. Based on these conversations, the reporters developed a preliminary methodology to test salmon for toxics in a stretch of the Columbia River. The reporters sent this methodology to the same informal advisers for review.
A reporter purchased 50 salmon from tribal fishers upriver of the Bonneville Dam, in the zone of the river reserved for tribal treaty fishing. The majority of the fish were fall Chinook salmon, with two coho salmon and one steelhead. The fish were caught in late September 2021. With the salmon in hand, a reporter gutted the fish, removed the heads and cut them into pieces so they would fit into five coolers. The fish were placed on ice in five different coolers, with 10 fish of roughly the same size placed in each cooler.
Testing of fish can be done on the whole body of the fish, on a fillet with the skin on or on a fillet with the skin removed. Although many people, particularly in tribal communities, consume the head of the fish, reporters asked the laboratory to test fillets with skin because it was determined to capture the best approximation of what’s most often consumed in tribal diets.
A reporter sent the fish samples to ALS, a certified laboratory, and followed ALS protocols for the collection and delivery of samples. The laboratory combined fish to create five new composite samples, each one with 10 fish. (Creating composite samples enables more fish to be tested without raising laboratory costs.) Then, ALS technicians conducted testing to assess levels of 13 metals and two classes of chemicals in each of the five fish samples. In March 2022, ALS sent OPB and ProPublica an analytical report that included the case narrative, chain of custody and testing results, which we again shared with experts and public health officials as we developed a plan to analyze the results.
As a first step, the reporters conducted quality assurance checks on the testing and processed the data. While doing so, the reporters encountered testing limitations that prompted them to make two choices that are standard in both national and international approaches to fish toxics testing:
- ALS tested for general mercury, yet methylmercury is the form that is most concerning to public health. The EPA and European Food Safety Authority assume 100% of mercury sampled in fish tissue is methylmercury. The reporters adopted the same approach.
- ALS tested for arsenic, yet inorganic arsenic is the form that is most concerning to public health. The reporters found that there isn’t as much of a cohesive approach toward identifying the proportion of arsenic that is inorganic without directly testing for it. The Idaho Department of Environmental Quality recently launched a sampling effort where researchers found that, on average, about 4% of the arsenic in fish is inorganic. The department’s study is one of the most robust examinations of inorganic arsenic concentrations near the Columbia River. The Oregon Health Authority takes a different approach. David Farrer, a toxicologist with the agency, said they would initially assume 10% of arsenic is inorganic and, if the results signaled the levels could harm human health, they would then reanalyze any leftover sample specifically for inorganic arsenic. If that were not possible, the health department would not use the data at all. Given these uncertainties, OPB and ProPublica chose not to move forward with assessing cancer risk of inorganic arsenic since the news organizations did not specifically test for it.
The reporters then calculated the average concentration of chemicals across each of the wet weight samples. They then assessed how these results compared to EPA, Oregon Health Authority and Washington Department of Health standards.
Of the 13 metals and two classes of chemicals tested, three contaminants surpassed federal and local standards at varying levels of fish consumption: mercury, or methylmercury; polychlorinated biphenyls, or PCBs; and dioxins/furans.
The reporters shared their methodology and findings with experts for review. Toxicologists with the Oregon Health Authority and the Washington Department of Health, as well as former and current EPA scientists, reviewed the results and, in some cases, conducted their own calculations to assess how the testing findings compared to their respective standards. The reporters then met with each of these individuals to talk through the findings, ask and answer questions, and ultimately update their own findings to incorporate feedback. The experts’ feedback was consistent with one another. This process led to the finding that concentrations of mercury (methylmercury) and PCBs would warrant the EPA and at least one state health agency to recommend eating no more than eight 8-ounce servings of salmon in a month. The equation used for these calculations can be found in this Oregon Health Authority report (Page 4) and this Washington Department of Health report (Page 35).
Simultaneously, OPB and ProPublica calculated the estimated cancer risk from consuming salmon with the contaminant levels found through our testing. For each contaminant, a reporter calculated the levels of exposure for multiple scenarios based on how different populations eat, including general population consumption and average and high rates for Columbia River tribes, which were based on consumption surveys. The amount of contamination assumed in this calculation was taken from the 95% upper confidence limit of the test results. Current and former EPA scientists reviewed the methodology and calculations.
To calculate lifetime cancer risk, the dose of a probable carcinogen must be multiplied by a cancer potency factor, which estimates toxicity. Cancer potency factors, also known as slope factors, were sourced from this EPA report. Former and current EPA officials, as well as an epidemiologist, reviewed the calculations and results.
We also factored in the following consideration: Under EPA guidance, when calculating safe levels of exposure to different chemicals, the agency calculates monthly limits to the exact number of meals a person should eat. But it then rounds that down to the nearest multiple of four in an effort to make risk communication easier to follow. For example, if one were to find that the levels of dioxins would warrant that someone only eat five fish per month to avoid excess cancer risks, that would be rounded down to the four fish per month.
Ultimately, this led to the finding that, based on the levels of dioxins in our samples, anything above four 8-ounce servings of these tested fish each month would create an excess cancer risk beyond the EPA’s benchmark of 1 in 100,000. That means of 100,000 people exposed to these levels of contaminants, one of them would develop cancer as a result of the exposure.
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