22 July 23
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But, with 2024 looming, is it already too late?
Trump received the target letter on Sunday, and revealed it in one of his trademark hysterical social-media posts on Tuesday: “HORRIFYING NEWS!” Over the next couple of days, there were still more legal setbacks. In Florida, a Trump-appointed federal judge overseeing Smith’s other criminal case against the former President—for illegally holding on to top-secret documents—appeared deeply skeptical of Trump’s argument that she should delay a trial indefinitely since he is running for President. In Georgia, the state’s Supreme Court ruled against Trump’s motion to block the Fulton County district attorney, Fani T. Willis, from prosecuting him for his efforts to pressure officials to overturn his 2020 defeat in the state; criminal charges could result in the coming weeks. In New York, meanwhile, a judge said that Trump could not switch the venue of his Manhattan criminal trial for allegedly paying hush money to silence a former porn star with whom he had an affair. Trump is also facing two more civil lawsuits in New York, both of which could go to trial next year. America’s new political reality, in short, is: Donald Trump, Full-Time Defendant.
And yet Republicans remain in such thrall to their Orange Jesus—the honorific that Party apostate Liz Cheney so memorably quoted one of his acolytes calling him during last summer’s January 6th hearings—that, with each new legal woe, his prospects of winning the 2024 G.O.P. nomination keep going up. Few if any of these cases are likely to be fully resolved before the start of next year’s Republican primaries. Trump’s campaign is now explicitly a race not just to retake the Oval Office but to save himself from criminal conviction. This convergence of campaign and courtroom is, as the former Republican National Committee counsel Benjamin Ginsberg said this week, “a toxic mix unprecedented in the American experiment.” Something’s gotta give.
The apparently impending Smith indictment is not like all the other cases. In theory, it will force the question that has cursed the country since the evening of November 3, 2020, when Trump chose to claim victory in an election he had lost: What to do about a President who will do anything to stay in power, even unleash a violent mob of his supporters on the U.S. Capitol? Isn’t that illegal? How can it not be?
For two and a half years, the failure to answer Trump’s brazen acts with a decisive rebuke has only empowered the former President, enabling him to regain political strength within his party and force its nominal leaders to once again acknowledge his hold over their voters. Consider Mitch McConnell, who is the closest thing the current G.O.P. leadership has to an avowed enemy of the ex-President. Minutes after Trump was acquitted by the Senate in his second impeachment trial, he gave a blistering speech about the ex-President’s culpability in the events of January 6th. McConnell had not voted for conviction but, he insisted, only because of his objection to the process of impeaching a President who was no longer in office. “There is no question that President Trump is practically and morally responsible for provoking the events of that day,” McConnell said. “The people who stormed this building believed they were acting on the wishes and instructions of their President. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated President kept shouting into the largest megaphone on planet Earth.” The Senate Republican leader all but called for the Justice Department to do what his Senate would not. “President Trump is still liable for everything he did while he was in office,” McConnell said. “Didn’t get away with anything. Yet.”
But this week, when liability at last seemed imminent, McConnell said nothing at all. “I’m not going to comment on the various candidates for the Presidency,” he lamely told reporters. In the House, Speaker Kevin McCarthy was even worse. In 2021, he had directly blamed Trump for the attack on the Capitol. “Nobody can defend that, and nobody should defend it,” he said. This week, though, he attacked the Justice Department for indicting Trump in a case that has not been filed yet. It was, he said, an effort to “weaponize government to go after their No. 1 opponent.” According to Politico, the Speaker promised Trump that he would hold a House vote to “expunge” the two House impeachments against him—never mind that no one even knows whether such a thing is constitutionally possible. “I don’t see how he could be found criminally responsible,” McCarthy said. “What criminal activity did he do? He told people to be peaceful.”
Republicans used to revel every four years in their self-proclaimed status as the party of “law and order.” Now they follow Trump into attacks on federal prosecutors, on the Justice Department, on the F.B.I. It’s anyone’s guess how far down this road McCarthy may be willing to go, as the former President combines his legal defense with a political campaign of vengeance, retribution, and personal survival. It was surreal to see pictures of the Speaker as Joe Biden’s guest at the annual White House congressional picnic this week, grinning and chomping on an ice-cream bar, even as he seemed all too willing to light the place on fire if that’s what his restive pro-Trump majority were to demand.
The prospect of Trump returning to the White House is an existential one for American democracy, a political test from which there is no escaping. If this wasn’t clear before, it must be now. A reëlected Trump would be a President subject to no constraints at all—having twice dodged congressional impeachment, and either beaten back the Justice Department and the courts or delayed so long that he could seek to use his regained executive powers to nullify the cases against him. Trump, in his ever-more-apocalyptic rhetoric surrounding his effort to retake the White House, has taken to calling his 2024 race “the final battle.” I have increasingly come to believe that he is correct.
Given the stakes, there’s much to anticipate about what Smith’s latest case against Trump might look like. According to the Times, his target letter indicated that Trump could be prosecuted under three criminal statutes: conspiracy to defraud the government, obstruction of an official proceeding, and even a law enacted after the Civil War to give federal agents a means of prosecuting Southern white supremacists, including Ku Klux Klan members who resorted to terrorism to prevent newly freed Blacks from voting.
But knowing what he will be charged with does not mean there is nothing left to learn about this unprecedented plot against America. For that, we must wait for the indictment: Will there be new details showing that it was the President himself who orchestrated the conspiracy to overturn election results in battleground states? New examples of Trump pressuring officials or government agencies? Damning evidence in his own words that he knew he had lost the election and proceeded anyway? Will there be a turncoat—Mark Meadows, perhaps?—to provide revelations from inside Trump’s fevered quest to stay in office after the voters had spoken? I hope and expect so after more than two and a half years of waiting. And yet somehow those questions still seem subordinate to the one that the indictment will not and cannot answer: Did it come too late?
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Fulton County prosecutor Fani Willis. (photo: AP)
Exclusive: racketeering charges based on influencing witnesses and computer trespass, sources say
The racketeering statute in Georgia requires prosecutors to show the existence of an “enterprise” – and a pattern of racketeering activity that is predicated on at least two “qualifying” crimes.
In the Trump investigation, the Fulton county district attorney, Fani Willis, has evidence to pursue a racketeering indictment predicated on statutes related to influencing witnesses and computer trespass, the people said.
Willis had previously said she was weighing racketeering charges in her criminal investigation, but the new details about the direction and scope of the case come as prosecutors are expected to seek indictments starting in the first two weeks of August.
The racketeering statute in Georgia is more expansive than its federal counterpart, notably because any attempts to solicit or coerce the qualifying crimes can be included as predicate acts of racketeering activity, even when those crimes cannot be indicted separately.
The specific evidence was not clear, though the charge regarding influencing witnesses could include Trump’s conversations with Georgia’s secretary of state, Brad Raffensperger, in which he asked Raffensperger to “find” 11,780 votes, the people said – and thereby implicate Trump.
For the computer trespass charge, where prosecutors would have to show that defendants used a computer or network without authority to interfere with a program or data, that would include the breach of voting machines in Coffee county, the two people said.
The breach of voting machines involved a group of Trump operatives – paid by the then Trump lawyer Sidney Powell – accessing the voting machines at the county’s election office and copying sensitive voting system data.
The copied data from the Dominion Voting Systems machines, which are used statewide in Georgia, was then uploaded to a password-protected site from where election deniers could download the materials as part of a misguided effort to prove the 2020 election had been rigged.
Though Coffee county is outside the usual jurisdiction of the Fulton county district attorney’s office, the racketeering statute would allow prosecutors to also charge what the Trump operatives did there by showing it was all aimed towards the goal of corruptly keeping Trump in office.
A spokesperson for Willis did not respond to requests for comment.
The district attorney’s office has spent more than two years investigating whether Trump and his allies interfered in the 2020 election in Georgia, while prosecutors at the federal level are scrutinizing Trump’s efforts to reverse his defeat that culminated in the January 6 Capitol attack.
A special grand jury in Atlanta that heard evidence for roughly seven months recommended charges for more than a dozen people, including the former president himself, its forewoman strongly suggested in interviews, though Willis will have to seek indictments from a regular grand jury.
The grand jury that could decide whether to return an indictment against Trump was seated on 11 July. The selection process was attended by Willis and two prosecutors known to be on the Trump investigation: her deputy district attorney, Will Wooten, and special prosecutor Nathan Wade.
Charges stemming from the Trump investigation are expected to come between the final week of July and the first two weeks of August, the Guardian has previously reported, after Willis told her team to shift to remote work during that period because of security concerns.
The district attorney originally suggested charging decisions were “imminent” in January, but the timetable has been repeatedly delayed after a number of Republicans who acted as fake electors accepted immunity deals as the investigation neared its end.
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Mines and unexploded rockets next to a destroyed bridge on the way to Kherson, Ukraine, in November. (photo: Wojciech Grzedzinski/WP)
The transformation of Ukraine’s heartland into patches of wasteland riddled with danger is a long-term calamity on a scale that ordnance experts say has rarely been seen, and that could take hundreds of years and billions of dollars to undo.
Efforts to clear the hazards, known as unexploded ordnance, along with those to measure the full extent of the problem, can only proceed so far given that the conflict is still underway. But data collected by Ukraine’s government and independent humanitarian mine clearance groups tells a stark story.
“The sheer quantity of ordnance in Ukraine is just unprecedented in the last 30 years. There’s nothing like it,” said Greg Crowther, the director of programs for the Mines Advisory Group, a British charity that works to clear mines and unexploded ordnance internationally.
Staggering scale
About 30 percent of Ukraine, more than 67,000 square miles, has been exposed to severe conflict and will require time-consuming, expensive and dangerous clearance operations, according to a recent report by GLOBSEC, a think tank based in Slovakia.
Though the ongoing combat renders precise surveys impossible, the scale and concentration of ordnance makes Ukraine’s contamination greater than that of other heavily mined countries such as Afghanistan and Syria.
HALO Trust, an international nonprofit that clears land mines, has tracked, using open-source information, more than 2,300 incidents in Ukraine in which ordnance requiring clearance was discovered. Though events are greatly underreported and the data does not include the results of on-the-ground surveys by HALO Trust or other organizations, it gives a harrowing outline of the problem.
This week’s deployment by Ukrainian forces of U.S.-made cluster munitions, which are known to scatter duds that fail to explode, can only add to the danger.
Human cost
The explosives have already taken a heavy toll. Between the start of Russia’s full-scale invasion in February 2022 and July 2023, the United Nations has recorded 298 civilian deaths from explosive remnants of war, 22 of them children, and 632 civilian injuries.
Civilian deminers, who clear unexploded ordnance and mines from liberated territories, are highly trained and use safety gear. But they are not immune from catastrophic accidents.
Vladislav Sokolov, a deminer for Ukraine’s emergency service, told The Washington Post that one of his friends, a fellow deminer, lost a leg while working in a Kramatorsk minefield in 2022. Sokolov and his friend reunited at a meeting of ordnance disposal professionals after he received a prosthetic.
He was “trying to learn to walk” again, Sokolov said.
Dmytro Mialkovskyi, a Ukrainian military surgeon, has been operating on mine injuries since the beginning of the war. On Friday, at a hospital in Ukraine’s Zaporizhzhia region, he had to make a gut-wrenching call to save the life of a mine blast patient who was dying of his injuries.
“I realized that this leg is killing him and there is another leg with a tourniquet, too,” Mialkovskyi said. “So I had to do a quick amputation of both legs. In 10 minutes.”
“I still don’t know if he’ll survive,” he said.
Hidden killers
Both sides use mines. Russia heavily mined its front lines in anticipation of Ukraine’s ongoing counteroffensive, and has made far more extensive use of widely banned antipersonnel mines.
Small, deadly antipersonnel mines, triggered by the weight of the human body, cannot discriminate between combatants and noncombatants.
Russian forces have used at least 13 types of antipersonnel mines, as well as victim-activated booby traps, Human Rights Watch investigations found. Evidence suggests Ukraine has also used at least one type of antipersonnel mine, a rocket-delivered PFM blast mine, around the Ukrainian city of Izyum in summer 2022.
Antitank mines, which usually require immense weight to detonate, are not internationally banned, though any explosive device that could be detonated unintentionally by a civilian can be considered an antipersonnel mine under the 1997 Mine Ban Treaty, to which Ukraine, but not Russia or the United States, is a party.
Both Russian and Ukrainian forces have used anti-vehicle mines.
The United States included two types of mines in its aid packages to Ukraine: the Remote Anti-Armor Mine System, which uses 155-milimeter artillery rounds to create temporary minefields programmed to self-destruct, and M21 antitank mines, which require hundreds of pounds of force to detonate but do not self-destruct, leading to concerns about later removal.
Mines are not the only type of explosive that pose a threat. Mortars, bombs, artillery shells, cluster munitions and others also become hazards if they do not explode when deployed.
Undoing the damage
Russia’s heavily mined defenses, built up over months of stalemate along the front lines, are slowing down the Ukrainian counteroffensive that began last month, damaging Western-supplied battle tanks and infantry fighting vehicles.
Though specialized mine-clearing vehicles are in use, front-line mines are so concentrated that specialized soldiers, called sappers, have had to resort to clearing paths by hand.
Humanitarian clearance operations, which return denied land to local populations after conflict, are extremely slow, tedious and expensive. They are underway across parts of Ukraine, including around Kyiv, the capital, and other areas West of the front lines, where the battle has receded.
Ukraine’s contaminated territory is so massive that some experts estimate humanitarian clearance would take the approximately 500 demining teams in current operation 757 years to complete.
Demining teams crawl inch by inch across the terrain, using metal detectors and sometimes explosive-sniffing dogs, excavating every signal, not knowing whether they will uncover a harmless nail or deadly mine.
GLOBSEC estimates that one deminer can only clear 49 to 82 square feet per day, depending on the terrain and concentration of explosives.
The short window for clearance in the spring, after the ground thaws and before farmers plant, leaves little room for disasters like the Kakhovka dam breach in early June, which drastically disrupted clearance efforts.
Farmers in heavily contaminated regions such as Kherson have resorted to visual inspections and rigging tractors with armored plates while planting this year’s harvest.
There is a steady market for “dark deminers,” who offer hasty and often unreliable clearance without official certification, to clear some of the more than 19,000 square miles of unusable agricultural land.
Demining is not just slow, it’s also expensive. The World Bank estimates that demining Ukraine, which costs between $2 and $8 per square meter, will cost $37.4 billion over the next 10 years.
The United States has committed more than $95 million to Ukraine’s demining, according to a 2023 State Department report.
How Ukraine compares
Mines as a dark legacy of conflict all over the world, from Cambodia to Kosovo, hint at the challenges Ukraine could face as it rebuilds.
Cambodia, riddled with millions of land mines after decades of conflict, has been subject to ongoing clearance operations for 30 years. Crowther estimates there at least five years of work remains. Tens of thousands of people have been maimed by Cambodia’s mines.
Kosovo saw armed conflict in 1998 and 1999. “Kosovo was a six-month war that was a fraction of the scale of this conflict,” Crowther said of the war in Ukraine. “It’s taken decades.”
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Plaintiffs in a landmark abortion lawsuit against the state of Texas stand outside Travis County District Court in Austin on July 19, 2023. (photo: Splash Cinema)
One plaintiff vomited while recounting her ordeal. The case marks the first time patients denied abortions have sued a state since Roe was overturned.
“My first thought was, maybe surgery can fix this, but I was told, ‘Sorry, your daughter is incompatible with life, she will be born without a skull,’” Casiano said in a Texas district court hearing on Wednesday. “She was going to die inside or outside of my womb.”
Her doctors bluntly told her she had “no options” in Texas as a result of the state’s abortion laws, handing her only a prescription for antidepressants. Casiano considered traveling to New Mexico for pregnancy termination, but the barriers were too steep. She could not take time off work and lacked reliable transportation, funds to pay for the procedure, and child care. Casiano came to the realization that she would have to carry the high-risk pregnancy to term. She felt like a “prisoner” in her own body.
Her due date was in May, but Casiano went into labor in March. She delivered her baby, then watched her slowly die: She was “gasping for air” and turning from pink to red to purple. Her eyeballs started bleeding. “I watched my baby suffer for four hours,” Casiano sobbed. “I told her, I am so sorry I couldn’t release you to heaven sooner. … There was no mercy for her.”
In the middle of recounting her harrowing ordeal, Casiano began vomiting on the witness stand, attorneys rushing to provide her a wastebasket.
Casiano is one of 13 women who have joined a landmark lawsuit against the state of Texas after being denied abortion care despite life-threatening pregnancy complications. She and others offered a stream of emotional testimony during a two-day hearing in Austin.
Since March, when the Center for Reproductive Rights filed Zurawski v. Texas, the lawsuit has grown from eight plaintiffs to 15, including two OB-GYNs. The patients suing are still just a fraction of the “countless” people in Texas denied life-saving care, attorneys say. Requesting a temporary injunction, the plaintiffs are not necessarily looking to halt the Texas abortion laws. But they hope to at least force the state to clarify the scope of the laws’ ambiguous carveout for medical emergencies and affirm that physicians can provide abortion care when emergency conditions arise — a “bare minimum” request that could save lives. Meanwhile, Texas is asking state District Judge Jessica Mangrum to dismiss the case.
“Texans have been living under strict abortion bans for nearly two years, longer than residents of any other state in the country,” Molly Duane, an attorney with the Center for Reproductive Rights, said in an opening statement. “While Texas’s abortion bans ostensibly have a medical exception, that exception simply does not function in practice. [These women] all wanted children and all suffered unimaginable tragedy. The harms these women suffered were all directly caused by the state’s ban on abortion.”
Duane and her colleagues say “inconsistencies” in the language of Texas abortion laws, the use of “non-medical terminology,” and “sloppy” legislative drafting have resulted in confusion throughout the medical community, leading physicians to over-comply with the laws or risk harsh criminal and civil punishment, placing patient lives in jeopardy.
Attorneys with the Center for Reproductive Rights say the lawsuit not only marks the first time women denied abortions have sued a state since Roe v. Wade was overturned last year, but it’s also likely the first time abortion patients denied care have testified against a state since the historic reproductive rights case was filed in Texas in the early 1970s.
“We’re All Paralyzed”
As the first — and largest — state in the country to outlaw abortion, Texas has felt the disastrous impact of a post-Roe world longer than other red states. Nearly 10 months before the U.S. Supreme Court eviscerated the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, Texas lawmakers enacted Senate Bill 8, a near-total ban with a novel private enforcement provision that empowered anti-abortion vigilantes to file civil suit against a provider or anyone who “aids or abets” care. Following Roe’s demise, politicians allowed a complete abortion “trigger ban” to take effect. Neither S.B. 8 nor the trigger law have exceptions for cases of rape, incest, or severe fetal abnormality. The trigger law carries harsh penalties for doctors, including revocation of their medical licenses, civil fines of at least $100,000 per violation, and up to 99 years in prison.
While the Texas abortion laws make an exception for medical emergencies, they are vaguely defined as “risk of death or a substantial impairment of a major bodily function.” The nonscientific nature of the language — coupled with the severe consequences of violating the law — has instilled confusion and fear in Texas doctors, who are erring on the side of extreme caution to avoid liability. Physicians are either waiting until a patient is on “death’s door” before offering abortion care — or failing to intervene at all. The result has been a stream of horrific stories of pregnant patients experiencing life-threatening medical complications, including organ failure, sepsis, and hemorrhaging.
Dr. Damla Karsan, an OB-GYN in Houston, routinely provided abortions to patients, including those with a wide array of high-risk complications, including ectopic pregnancy and preeclampsia. But since S.B. 8, the threat of being “targeted” with punitive charges has forced her to halt the provision of potentially life-saving care. In court, she described a pregnant patient who visited her in the ER at 15 weeks, bleeding profusely and carrying a nonviable fetus. While her risk of hemorrhage was high, Karsan could not offer her pregnancy termination. The patient was forced to make a 14-hour drive out of state for care and ended up developing kidney complications.
“I feel like my hands are tied. I have the skill, training, and experience to provide care but I’m unable to do so — it’s gut-wrenching,” Karsan said. “I am looking for clarity, for a promise that I’m not going to be prosecuted for providing care.” The law has also made it difficult to recruit doctors to Texas. They don’t want to practice in the state because “we’re all paralyzed at providing standard obstetric care,” she added.
Texas officials have not only offered little direction for uncertain doctors but have also gone out of their way to prevent assistance. Last year, a Trump-appointed federal judge blocked the Biden administration’s effort to provide emergency abortion guidance for doctors under protections in federal law after a suit filed by ardently anti-abortion Texas Attorney General Ken Paxton, who is named as a defendant in the Zurawski case. (In May, the Texas House impeached Paxton, alleging a series of offenses including bribery, abuse of office, and obstruction. Currently suspended, he faces a Senate impeachment trial this fall.)
Despite pleas from Democrats, Republican lawmakers remained largely unwilling to engage on the issue of medical exceptions during the five-month legislative session that began in Texas in January. At the eleventh hour, however, the Legislature quietly passed a bill that ostensibly seeks to offer more legal protection for doctors performing emergency abortion. Intentionally kept under the radar to ensure its passage, House Bill 3058, slated to take effect on September 1, covers treatment of ectopic pregnancies, where a fertilized egg implants outside the uterus, and pre-viable premature rupture of membranes, in which water breaks before the stage of viability. Doctors who can prove they “exercised reasonable medical judgment” in these cases could potentially be protected from liability.
The law — authored by Democratic Rep. Ann Johnson and sponsored by Republican Sen. Bryan Hughes, the author of S.B. 8 — was seen as a “compromise” with Republicans who didn’t have the “appetite” to fully resolve the glaring problem. Defendants invoked the law during the two-day hearing, asking the plaintiffs if they were aware of its provisions.
But even under H.B. 3058, doctors must be indicted or sued to assert the “reasonable medical judgment” defense, and they would still face the same draconian penalties. Duane said the law was “wholly insufficient” to address the widespread suffering of patients across Texas.
“Under this bill, doctors who provide an abortion will still have to defend themselves in court to prove the abortion was necessary,” Duane said. “Imagine doing that in a state whose government has been zealously hostile towards abortion providers. Doctors can still be hauled into court where they face cripplingly high fines, life in prison, and loss of their medical license.”
H.B. 3085 also leaves out a litany of other pregnancy complications. On the stand, Dallas resident Ashley Brandt described how she and her husband were overjoyed to welcome twins last May. However, like Casiano, Brandt learned that one of her twins had developed anencephaly and would not survive birth. Despite the condition placing Brandt’s life and the life of the healthy twin at risk, doctors refused to terminate her pregnancy under Texas law. Spending thousands in savings, Brandt was forced to travel to Colorado for life-saving care. “If I could not go out of state, I would have had to give birth to a daughter with no skull or brain, I would have held her until she died,” Brandt said.
Deflecting Blame
Confronted with the horror stories the women shared on the stand, state officials made clear that they believe they are absolved of any responsibility. The patients’ “alleged injuries” were not traceable to the actions of the defendants, they argued, but rather the result of the “independent actions” of individual medical providers. To reinforce this circular logic, state attorneys repeatedly asked each plaintiff if Paxton “directly” told them they could not get an abortion.
All of the women reiterated on the stand that they did not place blame on the physicians who denied them care, but on the politicians who crafted the dangerous laws that their doctors were compelled to abide by. “Given the nature of plaintiffs’ past experiences, it is understandable that they are seeking to place blame, but the blame directed at defendants is misplaced,” Assistant Attorney General Amy Pletscher responded.
The state’s sole witness, Dr. Ingrid Skop, initially repeated the idea that the onus rested with individual doctors and that the Texas abortion laws were clear. However, when reading Skop’s deposition out loud, plaintiffs’ attorneys revealed that she had been “begging” medical organizations like the Texas Medical Board to give “confused” doctors “guidance” on the law.
Either way, Skop is hardly an impartial expert. Part of the anti-abortion “research” organization Charlotte Lozier Institute as well as the American Association of Pro-Life Obstetricians and Gynecologists, the Texas doctor is also one of the plaintiffs behind the shadowy lawsuit seeking to revoke the Food and Drug Administration’s approval of the abortion-inducing drug mifepristone. The lawsuit’s claims are based in pseudoscience. Skop, who has been criticized for “spreading medical misinformation,” has also argued in favor of forcing rape and incest victims as young as 9 or 10 to carry pregnancies to term. “If she is developed enough to be menstruating and become pregnant and reach sexual maturity, she can safely give birth to a baby,” Skop told the House Oversight Committee in 2021.
Attorneys for the state, who aggressively questioned the plaintiffs’ experiences and often interrupted tearful testimony with objections, claimed the women and “abortionists” who filed suit had embarked on an “ideological crusade” and “media tour.” They even alluded to supposed financial incentives, pointing to Casiano, who started a GoFundMe page when she was unable to pay for her fetus’s funeral. “Plaintiffs simply do not like Texas’s restrictions on abortion,” an attorney for Texas said.
Perhaps even more dismissive, the state sought to invalidate the women’s standing to sue by claiming that some plaintiffs were unlikely to become pregnant again and therefore wouldn’t face life-threatening complications in the future. Their experiences are “tragic, but in the past,” an attorney for the state said. Lead plaintiff Amanda Zurawski stressed the irony of the state’s argument, pointing out that the scarring and damage to her reproductive organs that led to potential infertility was caused by the infection she incurred due to the abortion restrictions.
“What they are arguing is infuriating and disgusting,” Zurawski said. “Do they not realize the reason why I may not be able to get pregnant again is because of what happened to me as a result of the laws that they support?”
Zurawski nearly died after she was refused abortion care in May 2022. The Austin woman’s water broke at just 18 weeks. Carrying a nonviable fetus, she desperately needed a pregnancy termination, but her doctors refused because she “wasn’t sick enough.” They also warned her that it would be too dangerous to make the 11-hour drive to New Mexico for care because she could develop an infection en route. Zurawski’s health quickly deteriorated, and she was rushed to the ICU with septic shock. She lost control of her bowels and her ability to sit up unassisted. Doctors battled to keep her alive.
“I went from feeling physically OK to shaking uncontrollably. I was freezing cold even though it was 110 degrees out,” she said. “I couldn’t get a sentence out. My husband, Josh, asked me how I was feeling on a scale from one to 10. I didn’t even know the difference between the numbers one and 10. It was terrifying.”
Zurawski miscarried three days later. As a result of the sepsis, one of her fallopian tubes is permanently closed, and she has undergone several procedures to reconstruct her uterus after it collapsed.
Others have made the painful choice to avert future pregnancies while living under the Texas abortion bans, even if that means altering their long-term life plans. While Brandt had wanted to keep expanding her family, after her traumatic ordeal, her husband underwent a vasectomy to prevent the same outcome. “I don’t feel safe to have children in Texas anymore,” Brandt said through tears. “I knew it was very clear my health didn’t matter, but my daughter’s health didn’t really matter either.”
Casiano is terrified of becoming pregnant again, likening her experience to “torture.” She made the choice to receive a tubal ligation. “I decided the only way I can save myself from that harm and pain — and going through that torture again — would be to get my tubes removed,” Casiano said.
Mangrum, the judge, elected as a Democrat in 2020, is expected to rule on the case in the coming weeks. The party interested in appealing the ruling will likely do so at the Third Court of Appeals, which sees a full Democratic bench. Then, the case could make its way to the Texas Supreme Court, whose judges are all Republicans.
Following the first day of trial, Duane lauded the bravery of the women who publicly shared their stories and stressed that they were far from the only ones suffering in Texas.
“No one should be subjected to this punishment just for needing health care,” Duane said to reporters outside the courthouse. “But Texas politicians continue to evade responsibility for the agony they have caused and continue to cause. Since this case was filed, even more women have reached out to us to say, ‘The same thing happened to me.’”
“I can guarantee you more messages are waiting in my inbox now.”
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Buoys float on the U.S. side of the Rio Grande in Eagle Pass, Texas, on July 20, 2023. The buoys were installed on orders by Texas Governor Greg Abbot to prevent migrants from reaching the north embankment of the Rio Grande on the international boundary between Mexico and the U.S.
The DOJ sent a letter to Abbott on Thursday demanding that Texas remove the buoys and razor wire along the Rio Grande by Monday, July 24, or legal action will be taken.
"The State of Texas’ actions violate federal law, raise humanitarian concerns, present serious risks to public safety and the environment, and may interfere with the federal government’s ability to carry out its official duties," the letter read.
"The floating barrier at issue here is a structure that obstructs the navigable capacity of the Rio Grande ... which is a navigable water of the United States within the meaning of the Rivers and Harbors Act. Texas does not have authorization from the Corps [of Engineers] to install the floating barrier and did not seek such authorization before doing so."
The Biden administration has been facing pressure to intervene in Abbott's escalating border security activities.
Eighty-six House Democrats, led by San Antonio Congressman Joaquin Castro, sent a letter to the Biden administration on Friday.
"We write to express our profound alarm over border policies instituted by Texas Governor Greg Abbott that are putting asylum-seekers at serious risk of injury and death, interfering with federal immigration enforcement, infringing on private property rights, and violating U.S. treaty commitments with Mexico," said the letter. "We urge you to assert your authority over federal immigration policy and foreign relations and investigate and pursue legal action, as appropriate, related to stop Governor Abbott’s dangerous and cruel actions."
Abbott's floating wall is a part of his larger $4 billion border security initiative called Operation Lone Star, which has been testing the legal limits of a state's ability to enforce immigration policy.
The Republican governor claims the Biden administration is not doing enough to stop illegal migration through Texas.
“Texas has the sovereign authority to defend our border, under the U.S. Constitution and the Texas Constitution,” Abbott said in a tweet Friday in response to the DOJ letter. "We will continue to deploy every strategy to protect Texans and Americans — and the migrants risking their lives."
He added: “We will see you in court, Mr. President.”
Abbott launched Operation Lone Star in March 2021 with the deployment of thousands of Department of Public Safety troopers and Texas National Guard members to arrest migrants on state trespassing charges.
Over the last two years, the program has expanded to include high speed pursuits and the installation of miles of razor wire and other obstacles such as train cars along the Rio Grande. Most recently, Abbott installed the floating buoy barrier in the middle of the river in Eagle Pass, a crossing hot spot and the epicenter of Operation Lone Star.
Abbott and the state are also facing a separate DOJ investigation into an email from a Texas DPS trooper and medic in Eagle Pass that claimed troopers were ordered to push migrants they encounter into the Rio Grande and deny them water in the middle of a heat wave. Abbott denied the allegations.
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This is the road that Barakat Ahmad Barakat and his Syrian friends took the night that U.S. airstrikes hit their van during the 2019 raid on ISIS leader Abu Bakr al-Baghdadi. The Pentagon said the men ignored warning shots, but an NPR investigation found that the shots were fired mere seconds before the airstrikes. (photo: Omar Has Kadouri/NPR)
In 2019, U.S. special operations forces raided the Syrian hideout of ISIS founder Abu Bakr al-Baghdadi, leading him to blow himself up. Then-President Donald Trump called the raid "impeccable," and military officials said troops protected noncombatants.
The U.S. Defense Department dismissed the accounts reported by NPR of U.S. helicopter fire killing and maiming Syrian civilians during the raid. The Pentagon said those men were enemy combatants who ignored warning shots.
NPR sued the Pentagon under the Freedom of Information Act to release documentation of the airstrikes, and it obtained a redacted copy of the Defense Department's confidential 2020 report on the incident. The report was originally classified as secret with no foreign distribution. NPR's review of the documents, including aerial imagery from the operation, finds:
- U.S. troops fired warning shots mere seconds before launching airstrikes on the Syrian men's van. This undermines the military's assertion that the men demonstrated hostility by failing to stop or change course.
- The Pentagon provided no evidence that the victims were enemy combatants beyond the split-second assessment by U.S. troops on the dark night of the raid.
- U.S. officials did not compile an intelligence dossier, as recommended in the report, to support the claim that the victims were "unlawful enemy belligerents."
- The Pentagon questioned the veracity of accounts given to NPR by the airstrike survivor and families of the victims, but it did not contact the survivor or conduct a full formal investigation.
"Over the past 20 years, the U.S. military has struggled with escalation of force and many civilians were killed when they were falsely viewed as a threat. This incident appears to be one of many such cases," says Larry Lewis of the Center for Naval Analyses, who has advised the U.S. on how to reduce civilian casualties.
When NPR presented its findings to the Pentagon, U.S. Central Command issued a written statement from a spokesperson, Maj. John Moore, saying it did not order a formal investigation because it "deemed the civilian casualty allegations not credible." It said it had no plans to reassess the allegations. "We have nothing additional to offer," the statement said.
But last month, after NPR's query to the Pentagon, an advocacy group said it had been notified by the Pentagon that the department would look into the group's request to reopen the case.
Here is a summary of NPR's investigation.
Wrong place, wrong time: A Syrian says he was on his way home
Days after the Oct. 26, 2019, raid, the commander of the operation, Gen. Kenneth McKenzie, said that militants unaffiliated with ISIS, the group known as the Islamic State, had headed to the scene and that the van "displayed hostile intent, came toward us, and it was destroyed."
But the lone survivor of the airstrikes, Barakat Ahmad Barakat, now 39, told NPR that he and two friends were working as agricultural laborers at an olive press and that the friends were driving him home in their van. The shortest route to his village, Hatan, took them through the village of Barisha.
Barakat says they were not aware that Baghdadi was hiding in a home a few hundred yards up the road or that U.S. troops were present. He says they were startled to come under U.S. airstrikes, fled the van and were targeted again.
"There was nothing suspicious at all. We kept moving normally. There was nothing ahead of us on the road," Barakat said. "Suddenly I felt something hit us."
Barakat's two friends, Khaled Mustafa Qurmo, 27, and Khaled Abdel Majid Qurmo, 30, were killed in the airstrikes. Barakat's right hand was blown off and his left hand was badly injured.
The report redacts what kind of aircraft targeted the van, but military officials have said attack helicopters were used in the operation.
The military says it fired warning shots. But the shots provided little warning
The U.S. civilian casualty credibility assessment report, dated June 9, 2020, concludes that the men posed a threat because they did not heed warning fire. But the warning fire provided little warning, according to NPR's analysis.
The report says at the beginning of the nighttime operation, troops provided two volleys of "terrain denial fires" near the village the van would pass through, as a preliminary warning to keep civilians indoors. But Barakat told NPR that he and his two friends saw no such warning.
At 11:26 p.m. local time, the report says, the troops saw the men's van approach an intersection where U.S. forces had engaged combatants moments before. The van turned onto a road in the direction of Baghdadi's compound — with ground troops stationed about 344 meters (376 yards) ahead of the van. Troops observed the van drive down that road for 165 meters (180 yards) — without U.S. forces doing anything to ward off the van.
Then, at 11:27 p.m., an aircraft fired warning shots across the road "approximately 15 meters [49 feet] in front of the van which was struck as it continued to travel [west]," the Pentagon report says. Aerial photographs in the report indicate the warning shots were 15 to 20 meters (49 to 66 feet) ahead of the van. Even if the van had been going just 15 miles per hour, that would have given the driver only about two or three seconds to react on the unlit road.
"They want the van to stop. But what do they use? They use lethal force ... so you get this escalation based on misunderstandings," says Lewis, a former Pentagon and State Department advisor who led several studies for the Defense Department on civilian casualties in military operations.
The U.S. says troops targeted the fleeing men after it appeared the van had weapons — but says it has no evidence
After hitting the van, the report says, a U.S. pilot "assessed secondary explosions emitted from the vehicle, indicating weapons and explosive devices were on board the panel van." After the strike, the men fled the van and forces fired at them again.
But the Pentagon report says looking back later, it could not conclude what that explosion was, and there is no indication investigators visited the site. Barakat says the van was not carrying weapons.
The U.S. also backed away from claims that there was shooting from the van. In 2019, a U.S. defense official said "initial reports" were that the van had fired on U.S. helicopters, but in a declassified 2020 email obtained by NPR, an official said there was no shooting from the van.
"Military forces see a vehicle or an individual. They believe it is hostile, it's a threat, but they're mistaken — that it's actually civilian," says Lewis. "We call that misidentification. That's how I would characterize what is happening here."
In a drone strike that killed civilians during the U.S. pullout from Afghanistan in 2021, the military made a similar claim of a secondary explosion and later admitted it was wrong.
U.S. officials did not compile an intelligence dossier as recommended in the report
In the final lines of an analyst summary enclosed in the Pentagon's report, the author, whose identity is redacted, writes, "I do recommend" that U.S. officials provide a "short, TS annex" — a top-secret document — "that further addresses the characterization of the individuals killed and injured as unlawful enemy belligerents, if the existing intelligence so supports. Given the high-visibility of this strike and allegation, this information, if available, could be used to better inform key decision makers" in the Defense Department.
Lewis, the former Pentagon adviser, says this reflects uncertainty about the Pentagon's central claim.
"It does indicate, kind of, this question in the person that was writing this," Lewis says. "'Why are we so insistent that these people that we used force on, what is the real evidence that they were in fact combatants, that they weren't civilians that were caught in, in the wrong place at the wrong time?'"
In March 2023, following a query by NPR, Central Command said it found no record that this top-secret document was ever produced.
The Pentagon questioned the survivor's account but did not talk with him
The Pentagon report dismissed NPR's reporting, noting inconsistencies between the number of casualties NPR cited and numbers cited in other reports. Those reports could have been counting additional casualties in the overall raid. The Pentagon questioned the "veracity" of the sources NPR interviewed, but it apparently did not contact Barakat or any of them.
"They don't seem to have really assessed the status of these men and engaged in serious investigations as to whether or not they could have been civilians," says Priyanka Motaparthy, director of the Counterterrorism, Armed Conflict, and Human Rights Project at Columbia Law School. "Given the high-profile nature of the incident and the claims of civilian casualties, they could have done more to assess whether those claims were valid."
A former Defense Department legal adviser, Ryan Goodman, says the Pentagon analysis focuses on whether troops acted reasonably with the information they had "under the fog of war," and does not properly assess whether troops had made a mistake and ended up killing civilians misidentified as combatants.
The U.S. is taking a new approach to reducing civilian casualties
Barakat, whose right hand was blown off in the strike and whose right arm was later partially amputated, says he had surgery this year to remove shrapnel from his left arm.
But he can no longer afford physical therapy sessions, which cost about $8 each, says the Zomia Center, a New York-based nonprofit that advocates for civilian victims of military strikes. His injuries make him unable to work and provide enough food for his five young children.
"I was wounded. My future is destroyed. I have a family — I have kids. How is this their fault?" Barakat says. He hopes for compensation from the United States.
Last year, following New York Times investigations into U.S. military airstrikes killing civilians, the Defense Department released a new plan to reduce civilian casualties and create new ways to pay victims.
The Zomia Center has receipts showing Barakat was transporting olives to an olive press in the days before the airstrikes. The group says it asked the Defense Department last year to review the case again, but it got no response. After NPR inquired about the request last month, the Defense Department told the center it was looking into the matter, says Joanna Naples-Mitchell, director of the center's redress program.
"The military owes [Barakat] a lot more," she says. "They owe him a real explanation for what happened to him because the military has not even taken basic steps to check their own assumptions from that night."
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A hand-painted sign on a wall on the Hopi Indian Reservation in Arizona. (photo: Robert Alexander/iStock)
Arizona's unique method for awarding water to tribes was supposed to open up economic possibilities beyond farming for the Hopi Tribe. Instead, the tribe says it has dashed their dreams of building a thriving homeland.
The monthslong ordeal in Arizona’s Superior Court unfolded in video calls over shaky internet connections.
Chairman Timothy Nuvangyaoma called it “the fight of our lives.”
The U.S. Supreme Court ruled in 1908 that reservations have an inherent right to water. In the rest of the country, courts grant tribes water based on the amount of arable land on their reservations, relying on a 1963 U.S. Supreme Court precedent. But in 2001, Arizona developed its own method that was ostensibly more flexible to individual tribes’ visions for how they wanted to use their water by examining their culture, history, economy and projected population.
This new standard offered tribes an opportunity to shape their plans for economic development and growth beyond farming. But the Hopi case, the first adjudicated under this process, showed it also came at a high cost with uncertain outcomes.
Court records show that at the trial, experts brought in by the tribe, state and corporate water users argued over how many Hopi had lived in the area going back centuries and how much water they had used for crops and livestock. They debated the correct fertility rate of Hopi women and the viability of the tribe’s economic projects. And the court examined lists of sacred springs — sites the Hopi traditionally kept secret to preserve them — to decide how much water could be drawn from them for future religious ceremonies.
The legal battle, one of the tribe’s largest expenses in recent years, resulted in May 2022 with the court awarding less than a third of the water sought by the Hopi Tribe. That was the amount needed, the court said, “to provide a permanent homeland.”
“I would define it as modern-day genocide,” Nuvangyaoma said. “Withholding water, which is life for the Hopis, until an undetermined time is really a position to kill off a tribe that’s been here since time immemorial.”
The trial and decision carry profound implications for other Colorado River Basin tribes seeking water, especially in Arizona, where 10 out of 22 federally recognized tribes have outstanding claims. Water awarded to these tribes often comes out of the allocation states can use, leading to inherent conflict between tribes and states over the scarce resource. If the Hopi decree survives the tribe’s planned appeal, other tribes will be subjected to the same scrutiny of their way of life, said Rhett Larson, a professor of water law at Arizona State University.
“It’s a big deal for the history of water law in the United States of America and what it means to be a Native American tribe,” Larson said.
“To provide for our existence”
The Hopi Tribe has inhabited villages in northeastern Arizona for more than 1,100 years. In the time since white settlers arrived, the Hopi Tribe’s water supply has been decimated by drought and coal companies’ unchecked groundwater pumping.
The reservation, established by the U.S. government in 1882, is entirely surrounded by the Navajo Nation. Both tribes use the same aquifer, with wells reaching thousands of feet into the ground. Three-fourths of the Hopi citizens living on the reservation rely on well water tainted with high levels of arsenic, according to tribal leaders and studies conducted with the Environmental Protection Agency. A heavy metal that leads to increased risk of developing cancer, cognitive developmental disorders and diabetes, arsenic is naturally present throughout Arizona, but pumping can increase its concentration in groundwater.
According to Dale Sinquah, a member of the Hopi Tribal Council, concerns about the aquifer make it hard not only to find drinking water, but they also limit the construction of new homes and businesses allowing the community to grow.
The only other available water on the reservation is inconsistent, running in four major streambeds that are dry most of the year. Those four washes, which empty into the Little Colorado River, have likely been impacted by drought, with two showing a “significant decreasing trend” in recent years, according to the U.S. Geological Survey.
“We need another source of water off-reservation to provide for our existence in the future,” Sinquah said.
The case involving Hopi water rights began in 1978, when the Phelps Dodge mining company filed suit against the state and all other water users to protect its claims in the Little Colorado River watershed. Under Arizona law, the only way to quantify a single water claim was to litigate all regional claims at once. Soon, the Hopi Tribe and thousands of others with claims became parties to the case in the Superior Court of Arizona.
The tribe put the court case on hold twice as it attempted to get water through out-of-court settlements. Those talks though would have required compromising with other users making claims to that water, including the Peabody Western Coal Co., which until 2019 pumped groundwater from the aquifer for its mining operations. Between 1965 and 2005, Peabody accounted for 63 percent of the water pumped out of the aquifer, and 31 percent between 2006 and 2019, according to the United States Geological Survey. Peabody did not respond to requests for comment.
In 2012, the Hopi Tribe appeared on the brink of a settlement with the state that would have provided the tribal nation with $113 million for pipelines and other infrastructure to bring groundwater to communities on the reservation. But that effort fell through when Hopi leaders refused to sign off on a guarantee in the settlement allowing Peabody continued access to the aquifer until 2044.
“We don’t think that’s feasible for you”
Unable to reach a settlement, the Hopi Tribe’s pursuit of water for its homeland continued in court through Arizona’s untested legal process.
Due to the large number of parties and the underfunding of both the state courts and Arizona’s Department of Water Resources, the case moved at a snail’s pace. The department filed a key technical report on water availability in 2008. It took until 2015 for the department to finalize it for the court.
By then, the case had been overseen by four judges. They appointed three separate special water masters, who are key to producing a proposed decree for the court. Susan Ward Harris, the water master who delivered the 2022 decree, was appointed in 2015. Harris did not respond to requests for comment.
When its day in court finally came, the Hopi Tribe explained it wanted water for an economically vibrant future with farms, cattle operations, coal mines and power plants.
More than 90 witnesses testified. They included a long line of experts — for the tribe; the federal government; the state; the northern Arizona city of Flagstaff; and the Little Colorado River Coalition, which represented small cities, utilities, ranchers and commercial interests. They discussed the tribe’s projected population, argued over the accuracy of the census count of the Hopi and offered predictions of what the numbers would be in the future.
In the end, the court went with the lowest population projections put forward by Flagstaff and the state, and it decided to only include people living on the reservation full time.
The reservation’s population, currently about 7,000, would peak at 18,255 by 2110, Harris decided.
She also decreed the tribe would get water to only irrigate 38 percent of farmland it planned to. It was denied water for a cattle operation, saying it “would not be feasible, practical, or provide economic benefits,” based on the court’s assessment of the current market. Harris also declared the coal operations were not “economically feasible.” Some $10 billion in economic development projects, presented in detail to the court, were deemed unrealistic.
Water for ceremonial and subsistence gardens was also denied. The court publicly listed nearly 100 sacred springs with limits on how much water the tribe was entitled to use for religious ceremonies.
In total, the tribe had requested at least 96,074 acre-feet a year of water, and the Arizona water master recommended awarding just 28,988 acre-feet, all of it from the same depleted, contaminated aquifer and seasonal streams the Hopi already use. After four decades, they ended up in the same precarious position they’d started.
Nuvangyaoma said the decree suggested the state and non-Native parties believed the tribe was incapable of carrying out its ambitious economic plans. It closed the door on future growth and, overall, was “insulting.”
By refusing to count members who live part time on the reservation as part of the population, the court ignored the connection many Native Americans have with their land, even when they don’t live there permanently, he said. Many leave so they or their children can pursue an education; for work; or to live in homes with reliable electricity and water. In short, Nuvangyaoma said, they seek the very things Hopi leaders hoped that the settlement would help bring to the reservation, and that the tribe needed water to do. But the court said that because the reservation was not growing at the speed the tribe claimed it could, it couldn’t have the water — a circular logic that hobbles the Hopi.
“It’s very frustrating that you’re told that your population will peak at a certain amount when we don’t see it that way,” Nuvangyaoma said.
Even with Harris’ decree on the books, the Hopi Tribe still faces a long road to access its allotted 28,988 acre-feet of water. Funding for dams, pipes and other infrastructure will likely require congressional action and involve more negotiation with other water users, including the Navajo Nation, which draws from the same groundwater. “I suspect I will not be alive when it comes to fruition,” Sinquah, the tribal council member, said.
Nuvangyaoma said the tribe will still pursue its plans for economic development, but with the understanding it cannot look to the state or federal governments for support.
Cities across the Southwest have, with government support, pursued economic development and growth in the ways they want, he said, whether it’s coal mining, raising cattle or farming the desert using water brought from far away.
“So why are we putting limitations on Hopi and making a decision for us saying, ‘Oh, well, we don’t think that’s feasible for you all?’” Nuvangyaoma asked. “Who has that right to tell us what is and what is not feasible for us?”
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