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In the face of mass protests, the Prime Minister has backed down from his plan to overhaul the judiciary—for now.
The response from the street was anything but feeble. Overnight, mass demonstrations—of tens of thousands of mostly young people—erupted across the country, building on what have become regular Saturday-night events in the major cities. (During the rest of the week, some show up for improvised, digital teach-ins and spontaneous strategy sessions in towns and neighborhoods.) Protesters were especially focussed on Tel Aviv, where police used water cannons to clear the vital Ayalon expressway. People lit bonfires and chanted, “Democracy or revolt!” and, “You’ve taken on the wrong generation”—and, increasingly, “Bibi, go home.”
On Monday morning, all universities suspended classes to protest the legislation, which they described “as undermining Israel’s democratic foundations”; key hospitals curtailed medical services; and the Histadrut labor federation, which represents most public-sector employees and in which Netanyahu’s Likud is assumed to be very influential, joined with business leaders to call for a general strike. Ben Gurion Airport partially shut down. Banks closed after 1 P.M. One of Netanyahu’s criminal lawyers reportedly said that, if the judicial package went ahead, he would cease representing him. Ehud Barak, the former Prime Minister and chief of staff of the Israel Defense Forces, who had been both Netanyahu’s commander and a champion of Gallant’s rise, told a TV interviewer, “Pausing the [judicial] overhaul won’t stop the protests. We’ve passed the point of no return.”
By midday, Netanyahu, who had previously dismissed the demonstrators as “anarchists,” was reportedly planning to capitulate. And key members of his cabinet—including his justice minister, Yariv Levin, who has spearheaded the assault—were walking back their threat to resign if he did capitulate; they were considering, instead, how to hold on to power and buy time, with the religious zealots Itamar Ben-Gvir and Bezalel Smotrich insisting on eventual passage. Then, during the evening, without mentioning Gallant, or restoring him to his post, Netanyahu finally did precisely what his defense minister had asked for: he “suspended” the effort to bring more elements of the judicial package to a vote in this session of the Knesset and agreed to a period of dialogue with members of the opposition, though he stressed that he reserved the right to reintroduce the package in subsequent sessions. “One way or another, we will enact a reform that will restore the balance between the authorities,” he said.
Even before Netanyahu acted, the Israeli President, Isaac Herzog, and the opposition leaders Benny Gantz and Yair Lapid had welcomed an opportunity for a real dialogue; in fact, Herzog had presented his own formula for judicial reform earlier in the month. Yet both Herzog and Lapid committed to enshrine protections for equality and individual liberty in law—which, arguably, some of Netanyahu’s theocratic allies could never accept. Dialogue, in that case, only delays the inevitable collision. Indeed, it is no longer clear that reappointing Gallant, or even merely suspending the judicial assault, will calm down the streets. (Dialogue with a threat of the package’s reintroduction hanging over the talks would be, Barak had said, “between the wolf and the lamb, about what to eat for dinner.”)
Shikma Bressler, a forty-two-year-old physicist at the Weizmann Institute, has emerged as a leader of the protests. On Monday, she addressed a crowd of some hundred thousand protesters that surrounded the Knesset. She said that the government “must abandon the package altogether” and agree only to changes that are arrived at by “broad agreement.” Meanwhile, the far-right La Familia group, which is centered in Jerusalem and has a history of violence, announced that it was also planning to go to the area around the Knesset on Monday night, to protest in favor of the judicial overhaul. The hard right’s demonstrations proved small by comparison, but nobody who has witnessed its yearly marches on Jerusalem Day would doubt that they could grow. Israelis, like Californians, live on a geological fault line and try not to think about “the big one.” But they have also lived on a political fault line, and many now fear that this may, indeed, be the big one.
The eruption began last Thursday morning. Netanyahu’s coalition passed an amendment to what is known as the Basic Law: Government—basic laws are pieces of Israel’s jigsaw constitution—restricting the terms by which a Prime Minister can be required to take a leave of absence owing to medical incapacity, and so, in effect, prohibiting the High Court of Justice from ruling, as it might have before the new law, on whether Netanyahu could be forced to take a leave if the exercise of executive authority entailed a manifest conflict of interest.
This, all knew, was a preëmptive strike: Netanyahu is on trial for fraud, bribery, and breach of trust—all of which he has denied—and yet he heads a government that is famously aiming to “reform,” as he puts it, the very judiciary that is trying him. (A complementary bill, not yet enacted, would allow politicians to pocket money donated for their own medical and legal expenses; it might let Netanyahu keep more than quarter of a million dollars that he had received from a relative to use to cover his legal expenses, while potentially inviting all politicians to engage in, well, fraud, bribery, and breach of trust.)
The amendment was also Netanyahu’s opening gambit, the first law in a legislative package that menaces the judiciary more seriously—a package that Yariv Levin and the chairman of the Knesset Justice Committee, Simcha Rothman, were rushing through serial Knesset votes. The package would, among other things, empower a simple Knesset majority to pass or reverse Basic Laws, forbid the High Court to rule on them, and override the High Court’s abrogation of any subsequent law. It would also turn ministerial legal advisers—now legal watchdogs of the (still) independent attorney general—into the political appointees of ministers.
Most immediately menacing, as it was scheduled for a vote this week, was an amendment to the Basic Law: Judiciary, which would give the coalition control over the method for appointing High Court justices and other judges. (Currently, the nine-person appointments committee includes two ministers, two Knesset members—one or more of whom is from the coalition—three High Court justices, and two representatives of the Israel Bar Association; seven votes are needed, which accords the government’s members a veto.) “Pass the law on appointments and you don’t need the rest of the package,” Suzie Navot, the vice-president for research of the Israel Democracy Institute, told me, because the High Court is the “only institution that can limit the power of the majority.”
Netanyahu, for his part, claims that it is the High Court that has been roiling the country, promiscuously overturning Knesset legislation that expresses the right of the majority to have its way. On Thursday night, he called for unity but then proceeded to advance six common smears of the Court. (The next night, Danny Kushmaro, a news anchor on Channel 12, Israel’s main television station, took the unprecedented step of debunking those smears, one by one.) Over the weekend, in London, where he met Prime Minister Rishi Sunak, Netanyahu described himself to Piers Morgan as a “classical liberal” aiming to achieve “balance.”
The problem, however, has never been an activist Court that doesn’t know its limits but, rather, a quasi-theocratic state apparatus that, from the start, has only partially observed liberal-democratic boundaries—allowing rabbinic control over marriage and divorce, or separate state-supported school systems, for example—and left other civil rights unprotected. Netanyahu’s theocratic allies, to whom he’s made himself hostage, see themselves as custodians of the general will, which is, they believe, divine. “Democracy is the decision of the majority, the decision of the people,” Simcha Rothman said, in 2021, noting that, for himself, the term means “doing what the Holy One, blessed be He, says.”
The High Court has cautiously used the 1992 Basic Law: Human Dignity and Liberty to push back against some theocratic features, such as military exemptions for ultra-Orthodox youth—threatening something like Quebec’s Quiet Revolution of the nineteen-sixties, which slowly loosened the stranglehold of the Catholic Church over education and social services. It has abrogated a mere twenty-two laws, or subsections of laws, all having to do with the protection of basic human rights. It has ruled that Jewish communities living on public land cannot deny the purchase of a home there by an Arab Israeli citizen, and mandated the release of asylum seekers from incarceration. But the Knesset legal adviser Gur Bligh believes that even such fundamental rights as voting and freedom of expression would be left unprotected if the High Court were compromised.
Hanan Melcer, a former High Court justice who is now the head of the Israel Press Council, told a Haaretz conference in late February that Israel has no constitutional guarantee for freedom of the press, either, since that right is “only the fruit of interpretive verdicts” of the Basic Law: Human Dignity and Liberty, and can be rendered moot if the Court is hamstrung. He could have added that various coalition leaders have threatened to close down the public broadcaster, Kan; to ban strikes in critical services or in opposition to the government’s judicial proposals; and, especially chilling, to ban most Arab political parties—which could make Netanyahu’s majority unassailable.
It was in this context that Gallant acted: Netanyahu’s government, claiming a democratic mandate, was poised to subordinate the High Court, which, claiming democratic norms, was rejecting subordination—a perfect constitutional crisis. Gallant has previously tangled with the attorney general, over a minor legal breach that precluded his appointment as chief of staff, in 2011. But, whatever Gallant’s own feelings about the judiciary, he could not ignore how the schisms are undermining military readiness. The current chief of staff, Herzl Halevi, has made no secret of how the government’s actions are severely demoralizing the technologically advanced military, which depends increasingly on young men and women coming from the same educated and cosmopolitan families that the judicial coup is alienating.
Just last week, more than a hundred Air Force reservists announced that they will not report for routine and nonemergency service, joining hundreds more in the Military Intelligence Directorate, in special-operations units, and in offensive cyber units. “In one battalion of the elite 551st Paratroopers Brigade,” Haaretz’s Amos Harel reported, “only 57 percent of the reservists who were called up this week reported for duty on the first day—a steep drop from the typical turnout of 90 percent.”
Tamir Pardo, the former head of the Mossad intelligence agency (who also served under Netanyahu’s brother, Yoni, in the Entebbe raid, in 1976), told Kan that “every Israeli citizen, with no exceptions,” should join the protest, that “Jews and non-Jews need to understand the danger,” and that Netanyahu should resign. Barak was even blunter, telling a conference in Tel Aviv organized by Haaretz, “We teach soldiers in officer-training programs that there can be orders given under a black flag”—meaning illegal orders. In such a case, he added, “It is not the officer’s privilege to refuse; it is his or her duty to refuse.”
This is a moral issue for officers, but it also entails personal jeopardy. Over the years, the occupation and the siege of Gaza have occasioned harsh military actions, some of which could be considered gross violations of international law. For the most part, Israeli officers have been shielded from international sanctions, because the Israeli judiciary has been generally recognized as independent and at least capable of investigating and prosecuting serious violations on its own, though it has generally refrained from doing so. But, if the judiciary were to be considered as nothing but an instrument of the cabinet, this could change. A pilot named Meidan Barr, the chairman of an association of a thousand commercial pilots, told DemocratTV on March 20th that, considering the myriad N.G.O.s monitoring the conflict, hundreds of Israeli officers, and not just pilots, could be detained and questioned after landing in other countries—and might possibly even be arrested. “Everything now happening here would require the International Criminal Court in the Hague or elsewhere to investigate,” Barr said.
Among the chief beneficiaries of democracy’s preservation would be Arab Israelis, who make up twenty-one per cent of the population, who do not have to serve in the military, and whose vote Likud has sought to suppress in various ways. But the protests have been a sea of Israeli flags, and—according to one of the leaders—the showing of the Palestinian flag has been discouraged, so as not to alienate some more centrist Israelis who support democratic reform but see that flag as a historic shield for terror. Settler forces on the West Bank, meanwhile, are acquiring firearms more easily and have announced new settlement plans. Tit-for-tat violence is escalating. Settlers living in Har Bracha avenged the deaths of two brothers, who were reportedly killed by a Palestinian gunman as they drove through the nearby town of Huwara, by rampaging through that town, killing one Palestinian, and setting fire to scores of cars and homes, in what Major General Yehuda Fuchs, who oversees forces in the West Bank, called a “pogrom.” “I look at the flags or hear speakers talk of ‘Zionism’ when they mean to say ‘patriotism,’ and I feel uncomfortable,” Reem Younis, a co-founder of Alpha Omega, a medical-engineering company in the predominantly Arab-Israeli city of Nazareth, told me. “There is tweaking to do.”
West Bank violence has always been Netanyahu’s ace in the hole, commanding a broad coalition of support, even among opposition parties. But now the social cleavages with which he is identified make him seem like anything but a wartime leader. Nor is the economy a winning card. The Israeli stock market jumped about two points and the shekel rallied at the news that Gallant was going to oppose him. Two days earlier, the Finance Ministry’s chief economist, Shira Greenberg, had warned that the undermining of the judiciary could lead to a credit-rating downgrade and to as much as a twenty-seven-billion-dollar loss in G.D.P. annually.
The coalition has almost two hundred billion dollars in foreign-exchange reserves to cover deficits if the economy deteriorates and revenues plunge. But that means spending the golden egg after killing the goose. “We are in a tragic moment,” the veteran investor Yossi Vardi told me. “We were somehow able to create a mind-boggling entrepreneurial ecosystem—the sum of culture, heritage, innovation, taxation, mutual trust—but, like every ecosystem, this one is delicate.” Indeed, leading members of the venture-capitalist community are consulting with one another on social media, conspicuously transferring funds from Israeli to foreign accounts, and holding up investments from abroad, and entrepreneurs are registering businesses in Delaware rather than Israel. Erel Margalit, the founder of Jerusalem Venture Partners and a prominent investor resisting the package, told me that Israel’s innovations depend on connection with foreign universities and corporations. “You can’t lose your status with the U.S. and with your European partners,” he said. “You can’t lose your allies.”
Which brings us back to Monday. It is hard now to see how demonstrators will trust Netanyahu’s government remaining in power, irrespective of the suspension of the package. The key question, perhaps, is whether senior Likud leaders will abandon Netanyahu and the coalition’s theocrats. At first, Gallant’s call to suspend the judicial package was reportedly seconded by three other Likud leaders and sometime Netanyahu rivals, including Avi Dichter, the former head of Israel’s internal security agency. That list of leaders has grown, though none have called for abandoning the package entirely, and Dichter is rumored to have been suborned with an appointment to Gallant’s post.
In any case, Likud has reason to worry about its future and the Bibi cult it has engendered. A poll released by Channel 12 on Monday night found that sixty-eight per cent of Israelis disapprove of Netanyahu’s performance; only nineteen per cent favor him. Sixty-three per cent (and fifty-nine per cent of Likud voters) opposed Gallant’s firing; sixty-three per cent (and fifty-eight per cent of Likud voters) believed that the legislation should be stopped. Finally, if new elections were held today, Netanyahu’s bloc would drop ten seats, to about fifty-four, and the center parties of Gantz and Lapid would, together, gain forty-five seats to Likud’s twenty-five.
But Likud’s leaders are also trapped by past demagogy. Its base of less-well-educated voters has been assured that the High Court’s “activism” reflects a kind of privileged ethnic despotism—that the package is a belated revolution of have-nots against haves. “This struggle isn’t about laws,” the Likud member David Amsalem, a self-styled spokesman for the base, told the Knesset. “It’s about whether an élite and the nobility continue to run the country, and we remain the vassals.” It seems in vain to point out that it is an odd feudal system in which the “nobility” is taxed to support the “vassals”: according to a government report, ninety per cent of all tax payments are made by non-Orthodox Israeli Jews and twenty-five per cent by the mainly secular high-tech sector concentrated in Tel Aviv.
And it is these forbearing citizens who are most inflamed. For decades, “traditionalists” such as Herzog, who account for perhaps a third of the country—people who may be vaguely secular but are accustomed to indulging rabbinic orthodoxy (out of political opportunism, or a desire for unity, or a bow to its claim of authenticity)—are being forced to choose: an Israeli democracy with a Hebrew national character or a religious Jewish state with democratic trappings. Netanyahu’s Knesset “gang” is “corrupt, violent, messianic, and dark,” the political satirist Lior Schleien told a mass rally in Tel Aviv in February. “Compromise, Mr. President?” he asked. “On democracy, it’s impossible to compromise.” Schleien was born into a comparatively serene and urbane world in Israel, unlike the state’s founders and others who had fought in various wars for its survival. He said, “This is our [generation’s] war, our guard, our responsibility.”
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President Biden's executive order covers only spyware developed and sold by commercial entities, not tools built by American intelligence agencies. (photo: Doug Mills/The New York Times)
The president signed an executive order seeking to limit deployment of a tool that has been abused by autocracies — and some democracies — to spy on dissidents, human rights activists and journalists.
The tools in question, known as commercial spyware, give governments the power to hack the mobile phones of private citizens, extracting data and tracking their movements. The global market for their use is booming, and some U.S. government agencies have studied or deployed the technology.
Commercial spyware, including Pegasus, made by the Israeli firm NSO Group, has also been used against American government officials overseas. On Monday, a senior administration official said that at least 50 U.S. government personnel in at least 10 countries had been hacked with spyware, a larger number than was previously known.
The executive order prohibits federal government departments and agencies from using commercial spyware that might be abused by foreign governments, could target Americans overseas or could pose security risks if installed on U.S. government networks. The order covers only spyware developed and sold by commercial entities, not tools built by American intelligence agencies.
The order is not a blanket prohibition, and it allows for American agencies to use commercial spyware in some cases.
For instance, the Drug Enforcement Administration has deployed an Israeli-made tool called Graphite, made by the firm Paragon, as part of its counternarcotics operations. American officials have indicated they have no plans to terminate the D.E.A.’s use of the tool, but would revisit the decision if evidence emerges that Paragon’s hacking tools have been abused by other governments.
In December, Representative Adam B. Schiff, Democrat of California and the chairman of the House Intelligence Committee at the time, wrote to the head of the D.E.A. requesting more information about the agency’s use of the tool.
That month, Congress passed a bill that gave the director of national intelligence the power to prohibit the intelligence community from purchasing foreign spyware, and required the director of national intelligence to submit to Congress a “watch list” identifying foreign spyware firms that pose risks to American intelligence agencies.
The executive order signed by Mr. Biden on Monday states that for an American government agency to use commercial spyware, officials must determine that the tools do not “pose significant counterintelligence or security risks to the United States government or significant risks of improper use by a foreign government or foreign person.”
Administration officials said that the executive order would be central to a message Mr. Biden plans to bring to a White House-sponsored gathering, the Summit for Democracy, later this week. A White House news release said the order “demonstrates the United States’ leadership in, and commitment to, advancing technology for democracy, including by countering the misuse of commercial spyware and other surveillance technology.”
Last week, the director of national intelligence issued new restrictions on former American intelligence operatives from taking lucrative jobs with foreign governments, including some that are developing advanced technologies to spy on their citizens.
In September 2021, three former American intelligence officers who had worked for DarkMatter, a hacking firm in the United Arab Emirates, admitted to hacking crimes and violating U.S. export laws. Prosecutors said that the men helped the Emirates gain unauthorized access to “acquire data from computers, electronic devices and servers around the world, including on computers and servers in the United States.”
The most prominent seller of spyware is NSO Group. Numerous governments, from Mexico to India to Saudi Arabia, have deployed NSO’s Pegasus spyware against political dissidents and journalists. In November 2021, the Biden administration put NSO and another Israeli spyware company on a Commerce Department blacklist.
In addition, several American government agencies have either purchased or deployed Pegasus. In 2018, the Central Intelligence Agency bought the surveillance tool for the government of Djibouti, which used it inside that country. The next year, the F.B.I. purchased Pegasus and tested the tool for two years, before ultimately deciding not to deploy it.
Documents produced as part of a Freedom of Information Act lawsuit brought by The New York Times against the bureau show that F.B.I. officials made a push in late 2020 and the first half of 2021 to deploy Pegasus as part of its criminal investigations, including developing guidelines for federal prosecutors about how the F.B.I.’s use of hacking tools would need to be disclosed during criminal proceedings.
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It's no exaggeration to say that without The Texas Observer, which will abruptly shut down this week, corruption will flourish in the Lone Star State. (photo: Texas Observer)
It’s no exaggeration to say that without The Texas Observer, which will abruptly shut down this week, corruption will flourish in the Lone Star State.
Nationally recognized journalists called the closure everything from an “ego-driven tantrum” to a “damn shame,” and it seems they’re just getting started. Some aren’t ready to give up on the historic magazine. But I’m paralyzed by sadness for what was my first real reporting home and what was, for Texas, a place uniquely and steadfastly dedicated to holding a spotlight onto injustice and oppression.
I’ve never talked about this publicly, but I’ll admit it now: It was a fluke that I even got my first-ever journalism fellowship at the Observer.
The interview went well, I thought. They liked me, but not as much as they liked four other candidates. I had graduated college early, but I had nowhere to go next. It wasn’t until one of the other chosen fellows had to drop out due to a family emergency that I got the call to move to Austin. Of course, I did it in a heartbeat. Moved into a vegetarian co-op in West Campus, bought a ton of business-casual clothing at the mall, mapped the walking distance from my brother’s east-side apartment to the Texas Capitol.
This was a dream come true. The Observer was founded in 1954 by Ronnie Dugger and its history includes a six-year period in the 1970s under Ivins, a truly inimitable leader.
“We will take orders from none but our own conscience, and never will we overlook or misrepresent the truth to serve the interests of the powerful or cater to the ignoble in the human spirit,” Dugger once wrote. For her part, Ivins called the magazine a “publication in a class by itself” in the book Fifty Years of the Texas Observer, which was published in 2004.
And it was a dream to report for them. The Texas Observer was the place for watchdog, muckraking journalism in Texas. The statehouse was—and still is—full of clownery, and there was only one outlet truly willing to report on it with teeth. Everyone else had seemingly become inoculated to the sexism and racism and the this-is-just-how-it-works of Texas politics. But the Observer’s editors didn’t care about ruffling feathers, as long as the story was true and smart and well-told. The Observer did not bend for access to officials. It was a place beloved by journalists and loathed by the corrupt.
And then, on Sunday, The Texas Tribune broke the news: The Texas Observer is shutting down and will lay off its 17-person staff, including 13 journalists. Emily Ramshaw, the co-founder and CEO of The 19th* and the former editor-in-chief of The Texas Tribune tweeted “holy shit” and then called it “a damn shame.”
During my first-ever week at the Observer, I pitched my mentor Forrest Wilder (now at Texas Monthly) and then-editor Dave Mann (now a senior editor with American Public Media) on the sexism I was witnessing; I thought the warnings they were giving me about who not to be alone with should be reported out into a story. They gave me exceptional advice: Write down everything. If there’s a story there after a few months of digging, we’ll run it.
In 2013, at the age of 21, I finished my exposé on sexism in the Texas Capitol. It went viral. But no policy changes were made. And nobody, and I mean nobody else in the entire statehouse press corps, would have run that story. Of course, four years later, I was able to write multiple follow-up stories in 2017 at The Daily Beast during the height of #MeToo, and it resulted in policy changes and panels and a lot of big showboating and taking a stand against sexism. None of that would have been possible without the Observer.
That same year, in 2013, then-contributing editor Saul Elbein published a hard-hitting story about a practicing physician whose patients kept ending up maimed and dead. Afterward, the physician, tagged “Dr. Death,” was sued and charged and convicted—and then sentenced to life in prison.
There were a stunning number of award-winning, world-changing pieces of journalism out of such a small shop. The 2000 investigation on an undercover drug bust that disproportionately targeted Black Texans from Nate Blakeslee. Nearly everything written by National Magazine Award finalist and author Melissa del Bosque.
This was the Observer at its best; it made way for others to do what was right. It was always willing to go where no one else dared. Digging beyond headlines with rigorous, fact-based reporting that was not pretending to be neutral to injustice. “We seek not only to inform, but to empower our readers, as we work to hold public officials and corporations accountable,” reads the Observer website. “Our reporters recognize that oppressed people are experts on their own lives.”
Today, the Observer’s editor has said it is focused on reporting out women’s health issues, political extremism, Texas rivers and on the Biden administration’s border policies. That is, until the newsroom shuts down on Friday.
Elbein told me Monday that, “for generations of Texas journalists,” the Observer served as a “career incubator and proving ground—a place that gave us the guidance and leeway to do big, serious stories at a time in our careers when other publications would have had us fetching coffee.” That sentiment was repeated over and over again on Monday. Other notable Observer alums include Lawrence Goodwyn, Jake Bernstein, James K. Galbraith, and Jim Hightower.
Elbein, now a Texas reporter for D.C. outlet The Hill, also noted that its loss will leave a sizable “hole in the Texas media landscape.”
“But it also opens a lane for a publication to replace it—one with a mandate and management system better suited to Texas as it is, rather than what it was, and that can reach the kind of mass audience the Observer long ago gave up on,” Elbein added.
Pamela Colloff, the prolific and acclaimed Texas crime reporter who once won the MOLLY National Journalism Prize given out by the Observer in honor of Molly Ivins, called the magazine “a model for many of us.” (Full disclosure: I was on the judging committee for the award for several years.)
“Right now we need more, not less, independent journalism that speaks truth to power. It’s a devastating loss for journalism and for Texans,” said Colloff. “I can’t overstate how much The Texas Observer shaped and inspired generations of journalists, or what an important incubator of talent it was, decade in and decade out.”
Kolten Parker—a former editor at the Observer—on Monday called the news “hard to swallow.”
“It’s a sad day for independent journalism, for Texas and for the extremely talented and dedicated staff of The Texas Observer,” said Parker. “It provided for me, as it did countless other journalists, a space to craft hard-hitting journalism that owed nothing to anyone or anything except the truth. The high editorial standards and freedom of the Observer is liberating for writers, readers and voiceless communities in Texas. The biggest immediate concern is the people who found out their livelihood is gone through tweets on a Sunday night. Hire them.”
The Tribune reported that the decision to shut down the “legendary” publication was ultimately made by the board of the nonprofit Texas Democracy Foundation, which owns the magazine. The group reportedly voted on Wednesday to approve the layoffs.
Asher Elbein, a contributing editor and longtime freelancer at the Observer—and Saul’s brother—was the most willing to place blame firmly on the shoulders of the organization’s board, calling them “cronyistic, inattentive, irresponsible and reactionary.”
“It was the board’s decision-making over the past few years that drove serious staff turnover at the Observer,” said Elbein. “It was the board’s decision to make a difficult dispute among staff worse by taking a nearly finished issue and throwing the publication into a hiatus. The board gutshot the Observer, wondered why it was dying, and now claim that an inability to fund it means they have to put it out of its misery. Well, yeah. Times are tough for independent journalism. They’re tougher still when these were the people tasked with making sure it could continue.”
He added, “If the board doesn’t feel that they can help The Texas Observer survive, that’s naturally their prerogative. But they should turn it over to the people who make it, who have a vested interest in keeping it alive.”
Robert Frump, who ran the magazine’s business operations as a special adviser, resigned in protest on Thursday, according to the Tribune.
“Our reader base and our donor base is aging out,” Frump told the website. “There’s a nostalgia for Molly Ivins and Ann Richards and their era, and that’s a lot of what still drives the Observer. We weren’t able to build a bridge to the younger, progressive generation. I think the legacy is worth fighting for, but I do understand why the board feels the way it does.”
Del Bosque tweeted on Sunday evening that the news was “infuriating,” adding that “it’s not true that there was no future for a publication like the Observer in Texas. On the contrary. It’s needed now more than ever. I spent a decade there. You don’t just shut down a historic publication overnight like it’s nothing. Shameful.”
Jeff Rotkoff, an Austin-based veteran Texas progressive advocate and organizer, said that the magazine was once one of many “constellations in the political sky.”
“The Observer was unafraid to call a lie a lie, and to unapologetically distinguish right from wrong,” said Rotkoff. “It’s been home to some of the best Texas storytelling, because journalists at the Observer weren’t saddled with obligations to false equivalency. Today’s news is a heartbreak not just for so many talented journalists and Observer alum, but for anyone who knows we can’t build a Texas future for all our families and all our kids without brave, brash, accountability journalism.”
But maybe it isn’t a funeral after all.
Dan Solomon, a senior editor at Texas Monthly, tweeted Sunday, “Voting to pull the plug after decades without crowdfunding or publicly seeking new funding sources is incredibly short-sighted, and I hope it’s not too late to do those things.” He added, “The rest of us who cover Texas will have to work harder than ever if the observer folds. It’s been an incredible asset to the state, and to the mission of holding power accountable in a place where that is not something many are inclined to do.”
Steven Monacelli, a former special investigative correspondent at the magazine, reported Monday that “Texas Observer editorial staff have offered a counter proposal: Have the board members who voted for closure resign while top editors will work voluntarily and be given the chance to try to raise funds. They’ve also asked for a staffer to be added to the board as a voting member,” adding that the Observer would need to raise about $200,000 to avoid immediate closure.
Said Solomon, “If the board doesn't take them up on this, I don't know how you can view that decision as anything other than an ego-driven tantrum.”
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Rumsfeld signs a Baghdad road sign at the request of a U.S. soldier in April 2003. (photo: Luke Frazza/Reuters)
ALSO SEE: US Senate Votes to Advance Repeal of Iraq War Authorization
In the 2002–3 run-up to war, mainstream media outlets systematically suppressed evidence that Iraq had no weapons of mass destruction. They couldn’t have gotten away with it in the age of Twitter.
For lack of a better term, and at the risk of anachronism, I’ll call “it” the world of alternative facts.
At the moment the United States barreled into Baghdad, a typical American could comfortably access a maximum of, say, a dozen original sources for national and international news, give or take a few: five TV news bureaus (NBC, ABC, CBS, CNN, and Fox), NPR on the radio, the three national news magazines (Time, Newsweek, US News & World Report), one or occasionally two regional newspapers, plus the Wall Street Journal and USA Today. (In most localities it had only just recently become possible to conveniently find a copy of the New York Times).
All these organizations, whatever their subtle differences of political shading or editorial quality, were staffed by journalists who lived in the same cities, went to the same schools, kept abreast of one another’s work, and knew one another socially. And each of these institutions was, in one way or another, part of the Establishment.
But most important, you couldn’t talk back to them. You could try, but no one would hear you.
It was, therefore, relatively easy and surprisingly common in those days for the media to engineer the wholesale suppression of newsworthy, verifiable facts, or to embed wholly fictitious accounts of historically significant world events into the public record. And the Iraq story — stretching from the first Gulf War (1990–91) to the 2003 invasion, and focused on the saga of Iraqi disarmament — was especially fertile ground for this kind of journalistic prevarication.
Why Did the Inspectors Leave?
To take a small example, in the fall of 2002, the Bush administration took its first steps toward an invasion by pushing for a United Nations resolution, backed by the threat of force, demanding the return of UN weapons inspectors to Iraq. As every news report at the time explained, the inspectors at that point had not set foot in Iraq for almost four years. When debate on the proposal began in the Security Council in September 2002, it was the biggest news story in the world.
And yet if you wanted to know why the inspectors were absent for four years, things got complicated.
If you had the time, you could go back into the archives of, say, the Washington Post or New York Times and read its reporting from the time of the inspectors’ departure four years earlier, December 1998, when Bill Clinton’s administration waged a four-day campaign of air strikes against Iraq dubbed Operation Desert Fox.
Amid the torrent of important diplomatic and military news relayed in the editions of the Post and the Times during that time, you could find mention of a UN announcement, issued just before the bombing began, that it was withdrawing its inspectors because it couldn’t guarantee their safety during the bombardment. So there, it might seem, is your answer: the inspectors had been forced out of Iraq by US bombing.
But if you fast-forward to late 2002, when the inspectors’ hiatus from Iraq suddenly became the focus of the whole world’s attention, you’ll find those same respectable news organs reporting a new, alternative version of history: the Iraqi government had expelled the inspectors from the country, claiming they were spies. This new account didn’t just appear a handful of times in one or two news outlets, like an embarrassing factual error. It was in all the news outlets, because it had become the new official history.
And make no mistake: no matter how many letters to the editor you sent, no matter how many righteous tirades or well-documented exposés you published in your little dissident newsletter somewhere, the New York Times and Washington Post were not going to stop peddling their new history, even after they had it pointed out to them that the correct information had appeared in their own publications at the time of the events in question.
Because why would they? Outside the scruffy and sparsely populated world of alternative facts, nobody was going to read your newsletter, and if they did, they would have no way to communicate what they learned to the rest of humanity back on planet Earth.
This was what made it possible for the Clinton and Bush administrations and their lackeys in the press to mislead the world for so many years about Iraq’s nonexistent weapons of mass destruction — a triumph of misinformation that for a few glimmering years achieved the propagandist’s dream of fooling all of the people all of the time, until the ruse cosmically backfired on them once they actually had to produce a smoking gun.
“We Know Amongst Ourselves There Are No Weapons”
In the run-up to the war, one of the most popular stock talking points among its advocates and apologists was the claim that the Western governments now hypocritically opposing George W. Bush’s drive to war — like those of France, Germany, and Canada — had never actually questioned his contention that Iraq was hiding weapons of mass destruction. The Washington Post editorial page, in its February 2003 masterpiece, “Irrefutable” — a meditation on Colin Powell’s now-infamous presentation to the UN — repeated this well-worn line of argument, quoting Defense Secretary Donald Rumsfeld: “Any country on the face of the Earth with an active intelligence program knows that Iraq has weapons of mass destruction.”
Almost exactly a year later, I interviewed Frank Ronald Cleminson, one of the most senior arms control experts in the Canadian foreign service, who had served the UN’s Iraqi weapons-hunting agency as an inspector in the 1990s and then as a member of its supervising body of experts, the UN Monitoring, Verification and Inspection Commission College of Commissioners, in the early 2000s.
“I used to say, you know, we basically know amongst ourselves there are no weapons and we’re unlikely to find any,” Cleminson told me.
According to him, the most intractable obstacle to the completion of the UN’s disarmament mission in Iraq was not, in the end, Saddam’s stonewalling — which the inspectors managed to foil — but the obstruction they encountered from Washington.
“My guess is that with full American cooperation and without all this politics, [the UN’s disarmament task] could have been wrapped up in three to four years,” by 1995, he explained. At that point, in UN jargon, the focus would have shifted from “disarmament” to the operation of a permanent system of “ongoing monitoring and verification” in Iraq to ensure that the banned weapons programs would never be reconstituted.
Nothing could be more emblematic of how the media functioned in those days: the same august news organs that published extravagantly expensive “investigations” into the murky shadow worlds of Iraqi bioweapons labs and clandestine terrorist rendezvous in Prague — like those of the New York Times’s Judith Miller, whose fraudulent scoops, we later learned, mostly came from the serial fabricators in Ahmed Chalabi’s Iraqi National Congress — were evidently unable to penetrate the pudding-like wall of secrecy surrounding Ottawa’s paper-and-pencil intelligence analysts.
Those Canadian analysts, we now know, thanks to an article published in the Spring 2020 issue of the journal Intelligence and National Security (“Getting it right: Canadian intelligence assessments on Iraq, 2002–2003”), understood perfectly well that Iraq was unlikely to have weapons of mass destruction and said so clearly in their internal reports. But they shied away from stating the facts publicly so as not to anger American officials — who then turned around and used their apparent acquiescence (and that of the other allied intelligence establishments) to argue that “everybody” agreed with them that Iraq had WMDs.
The argument from Rumsfeld and his cothinkers in the press was, in essence: If you think the CIA is tailoring its conclusions about Iraq’s alleged WMD arsenal to fit the needs of its political masters in the Bush White House, how do you explain the fact that intelligence agencies in allied countries whose governments opposed Bush’s war reached the same conclusions?
The answer, at least in Canada’s case, is that they didn’t reach the same conclusions. They just kept those conclusions as quiet as possible. Recounting the internal controversies within Canada’s spy agencies in the run-up to the war, the article’s author, Alan Barnes — the former Middle East director of the Intelligence Assessment Secretariat (IAS), Canada’s lead foreign intelligence agency — wrote:
The greatest resistance was over the IAS’s analysis of Baghdad’s WMD programs. This went beyond analytic disagreements which were debated vigorously in meetings of the Interdepartmental Experts Group. Officials who had no part in these analytic discussions expressed concern that disagreeing with the US on Iraqi WMDs — and consequently failing to support military action against Iraq — would lead Washington to reduce the amount of intelligence it shares with Ottawa and lead to the marginalization of Canada within the Five Eyes intelligence partnership.
All of this was happening a few hundred miles from New York Times headquarters, and it was a story that any enterprising intelligence reporter surely could have gotten; though politically awkward for the Canadians, it wouldn’t have required sources in Ottawa to divulge any highly sensitive secrets. Who knows what kind of impact the story would have had if it had run on the front page of the Times. Instead, it was kept under wraps, like all the other evidence that Iraq had no WMDs.
Today, I would argue, journalistic chicanery of that particular kind is no longer possible. There’s still plenty of bad and inaccurate news reporting out there. But there are two major differences between now and then.
First, there’s a much wider range of news sources with “mass” audiences than there was twenty years ago. Any attempt to reconstruct the pre-internet misinformation cartel today would likely founder because newer publications, more detached from the hive mind of the Greater Washington Bureau, would play the role of spoilers. (Even publications as essentially nonsubversive as Buzzfeed or the Huffington Post would probably fill this role.)
But variety and competition by themselves aren’t enough. The most important factor in breaking down the old semi-Orwellian media status quo was the interactive nature of the internet. The mere fact that the truth is being told — and that your news outlet’s lies are being exposed — in some competing publication isn’t enough to compel you to tell the truth.
It’s when there’s a chorus of eagle-eyed Twitter users noisily holding your reporting up to the light of contrary evidence, day in and day out, that the lying becomes untenable. We can only wonder how many lives in Iraq and beyond would have been saved back in 2003 if the world’s clout-chasing shitposters had had the kind of reach they do today.
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Sixty thousand workers went on strike in Los Angeles to protest unfair labor practices. (photo: Eric Kelly)
Two major education worker unions just walked off the job for three days in Los Angeles, grinding the school district to a halt. Their actions resulted in a 30 percent raise.
On Friday, after stonewalling the union for months and allowing members to continue working on an expired contract, the school district reached a tentative agreement with SEIU 99. The tentative agreement includes a raise of 30 percent, retroactive pay of $4,000 to $8,000, a $1,000 one-time bonus, and full health care benefits for more classes of workers, including teacher assistants, community representatives, and after-school workers. Members will vote on the tentative agreement, which would increase the average salary of SEIU 99 members from $25,000 to $33,000 per year, later this week. Members of UTLA are still in bargaining with the district.
During the strike, many SEIU 99 members told Jacobin that they work two or or three jobs to make ends meet. They find it difficult to afford living near their work — or to afford housing at all, with one in three members of SEIU 99 reporting being either homeless or at risk of being unhoused while working for LAUSD. The average rent for a one-bedroom apartment in Los Angeles is more than $2,800 a month. Nearly a quarter of SEIU members report that they have recently faced hunger.
While both unions are in bargaining with the school district for higher pay and better working conditions, the strike was actually triggered not by contract negotiations but by charges of unfair labor practices, with SEIU 99 alleging harassment and surveillance of union members. The union filed unfair labor practice charges with the Public Employment Relations Board, which, in turn, made a strike legally possible.
Even though the strike was triggered by unfair labor practices, it prompted the district to increase its offer to SEIU 99. The resulting tentative agreement gives the union the entire raise it was asking for. “Instead of demeaning us, give us more money,” an SEIU worker named Lucy told Jacobin at a rally in front of LAUSD headquarters last Tuesday. “There shouldn’t even be negotiating. Just give us the raise.” It appears that workers like Lucy were successful, thanks to the massive two-union strike.
UTLA members joined the strike to show solidarity with SEIU 99, but also to register their own dissatisfaction with the district, which has $5 billion in reserves and yet is playing hardball with the teachers’ union in contract negotiations. “There’s no reason to have that much money in surplus,” Chrissy Offutt Kundig, a special education teacher in UTLA, told Jacobin during the strike. “I’m not an accountant, but I’m not a fucking idiot.”
A slew of local and state politicians expressed support for the SEIU 99 and UTLA strike last week. Even former LAUSD superintendent Austin Beutner, who faced off against UTLA during the 2019 teachers’ strike, went on Fox 11 to say that with record revenue, the district ought to be able to afford to increase wages for workers. He mentioned that SEIU 99 workers helped the City of Los Angeles out during the pandemic. Los Angeles schools continued to feed children who relied on school meals even when instruction had moved online.
Los Angeles city councilmember Hugo Soto-Martínez said in council chambers that LAUSD was using anti-union tactics to “muddy the waters” and confuse the public. “I’ve been on the other side and had to push elected officials to express support for our actions in the union,” Soto-Martínez told Jacobin. “I don’t want to be one of those elected officials. I want to be standing alongside the workers every time.”
Before being elected to City Council last year, Soto-Martínez was an organizer with UNITE HERE Local 11. “Because of my own experience, I understand that the union had no choice but to strike due to the anti-union tactics that were deployed against them,” Soto-Martinez continued. “Historically, SEIU 99 and UTLA haven’t always collaborated like this, so the solidarity they are showing in this strike is pretty unprecedented, and really inspiring.”
While it was more in vogue to publicly support the strike than oppose it, a few members of the Los Angeles power structure bucked the trend. For example Stuart Waldman, president of the Valley Industry & Commerce Association and member of the powerful private LA28 Olympics Organizing Committee, tweeted that UTLA does not care about kids and that “the entire strike was theater.”
The Circus Comes to Town
UTLA led a six-day walkout in 2019, protesting large class sizes, the district’s funding of charter schools, and a lack of resources and support provided to teachers and students. The strike was successful in wringing more concessions from the district.
This is Alberto Carvalho’s first year as LAUSD superintendent, having moved here from Miami. As a condition of his relocation, Carvalho negotiated a 26 percent raise over Beutner’s salary. He is paid $440,000 — more than President Joe Biden. In the fall, UTLA and Superintendent Carvalho clashed for the first time over the latter’s attempt to add four days to the academic calendar without discussing it with the union. The union organized walkouts to protest the policy, and the district backed off.
Carvalho emerged as the main villain of last week’s strike, with strikers frequently telling him to go back to Florida. An ill-conceived tweet describing the strike as a “circus” gave way to a circus theme, with strikers widely portraying Carvalho as a clown. One popular chant went, “Hey Carvalho, you’re the clown! LA is a union town!” School board members have indicated that they will address Carvalho’s use of social media.
Roger Jones, a custodian who makes $19.80 an hour, told Jacobin that he’s made that wage for five years. “Seems like the district’s been slacking,” he said. Sabrina Jones, an assistant teacher, said that Carvalho has been dishonest with the public about what the district has been offering in terms of a raise. She makes $18.30 an hour.
Celia Cordova started as a yard supervisor and is now a special education assistant. “The superintendent is not taking inflation into consideration,” she told Jacobin. “I make $23 an hour, and I only work thirty hours a week. I can go be a cashier or work at McDonald’s and make more money than I do now.”
Kathina Cormier, a preschool teacher and member of UTLA, expressed solidarity with members of SEIU 99. “I want them to be able to live and take care of their families. I want what’s best for them.” UTLA members hope that striking in solidarity with SEIU 99 has demonstrated their power to the district. “LAUSD drags their feet until we do things like this and take action. Talking gets us nowhere. We want our 20 percent raise,” Cormier said.
Jessie Lomeli, an IT support technician in SEIU, noted that in addition to paying workers better, the district should also be putting its $5 billion reserves to use in upgrading facilities. He said that his school in the San Fernando Valley just flooded from heavy rains in Los Angeles and that the air conditioning and heating at the school are unreliable. UTLA has been advocating for an upgrade to the school’s technology and infrastructure and has urged the district to provide students equitable access to Wi-Fi and green spaces.
Students Deserve — a coalition of LAUSD students pushing the school district to implement its approved Black Student Achievement Plan, eliminate Los Angeles School Police, and fund more mental health resources at schools — held a block party on the second day of the strike in front of LAUSD headquarters. There were speeches, raps, and dances.
“I’m out here to support my mentors and people who have paved a positive way for me,” said student James Winfrey. “The system that I grew up in brought me down, and I have a lot of trauma. This is something positive to support our community. These people feel unimportant, so we’re here to show our people love as students.”
Guisela Gutierrez, a mental health consultant with the district for seventeen years, told Jacobin that the district is looking into cutting resources for psychiatric workers, even though caseloads have grown exponentially since the COVID-19 pandemic. According to UTLA, the ideal ratio for psychiatric workers (PSW’s) to students is one social worker to 250 students. As of right now, some schools currently have one worker serving 1,000 students. UTLA’s Beyond Recovery platform, which spells out its bargaining demands, articulates the union’s perspective that this and other shortcomings harm both staff and students.
Union president Cecily Myart-Cruz has criticized the district for “hoarding resources” while 86 percent of the student body lives in poverty. Myart-Cruz, who was overwhelmingly reelected as UTLA’s president earlier this year, believes that the union’s demands should not stop at conditions inside schools, but should also extend to the hardships students and their families face outside of the classroom. Consequently the union has made housing security a central tenet of its platform, demanding that the district “push for targeted Section 8 housing vouchers to support LAUSD families” and “convert vacant LAUSD property into housing for low-income families.”
On the final day of the strike, workers held a massive rally at LA State Historic Park, with music and chanting echoing throughout the day. Trixie Navarro, a special education assistant and member of SEIU 99, brought her two kids. She told Jacobin that she makes under $20 an hour and also works at Uber Eats and Amazon Flex. “I can’t survive with that amount,” she said, adding that her own kids were out of school for the duration of the strike.
As with the 2019 UTLA strike, LAUSD workers flexed their muscles and ground the 420,000-student school system to a halt. The resulting tentative agreement for SEIU 99 is already momentous. Now UTLA members are hoping that the district, having once again seen the full extent of their power, as well as the strength of the solidarity between the unions, will give Los Angeles teachers what they’re asking for.
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The issue before the Supreme Court on Monday: whether a federal law that prohibits inducing unlawful immigration for financial gain violates the First Amendment. (photo: Will Dunham/Reuters)
The issue was whether a federal law that makes it a crime to encourage or induce illegal immigration transforms some speech protected by the Constitution into a crime.
The defendant in this case is Helaman Hansen, who conned 471 noncitizens into believing that they could obtain U.S. citizenship through adult adoption. By enrolling these noncitizens in this nonexistent program, Hansen defrauded these people of more than $1.8 million. In 2017, a jury convicted him on 15 counts of mail and wire fraud, for which he was sentenced to 20 years in prison. But it also found him guilty of two counts of encouraging or inducing these noncitizens to remain in the United States, and it is those two counts that were the focus of Monday's argument.
The Ninth Circuit Court of Appeals ruled in favor of Hansen, declaring that the federal law making it a crime to induce unlawful immigration sweeps up a substantial amount of speech that is protected by the First Amendment. The government appealed, and on Monday Deputy Solicitor General Brian Fletcher sought to thread a tiny legal needle: With one hand he made strategic concessions, while with the other he sought to uphold the statute. He conceded that the jury had not been properly instructed on the defendant's intent, and that the statute could be read too broadly. But, noting that the law has been applied for 70 years, he argued that if it is narrowly construed, it does not run afoul of the First Amendment.
"Prohibitions on soliciting or facilitating both criminal and civil violations have long been common and have never been thought to raise a First Amendment problem," Fletcher said. "The First Amendment does not protect speech that is intended to induce or commence specific illegal activities."
The justices, however, had a lot of questions.
"What do you say to the charitable organizations that say, even under your narrowing construction, there's still going to be a chill or a threat of prosecution for them for providing food or shelter and aid," asked Justice Brett Kavanaugh.
Justice Sonia Sotomayor followed up, saying, "We do know that the Customs Department made a list of all the people, religious entities, the lawyers and others who were providing services to immigrants at the border and was saying they were going to rely on the statute to prosecute them."
Justice Elena Kagan added, "What happens to all the cases where it could be a lawyer, it could be a doctor, it could be a neighbor, it could be a friend, it could be a teacher and could be anybody, says to a noncitizen, 'I really think you should stay.' What happens to that world of cases?"
Responding to a question from Sotomayor about a grandmother who worries that her immigration status might be a burden on her children but stays in the U.S. at their urging, Fletcher acknowledged that when family members urge someone to stay, that is the hardest case. He said there is no way to deal with all the variables that could come up, prompting Sotomayor to ask, "Why should we uphold a statute that criminalizes words . . . that's what we're doing with this statute. It's a first of [its] kind."
ACLU lawyer Esha Bhandari picked up that thread, arguing on behalf of the defendant.
Unless the court clips the wings of this statute, she said, "Congress and the states will be free . . . to criminalize speech soliciting violations of the vast range of administrative and regulatory laws that govern us today, from mask and vaccine mandates to parking ordinances."
But she too faced some tough hypotheticals. "What about someone who encourages a person who is intellectually disabled to commit suicide?" asked Justice Samuel Alito.
Bhandari replied that the government has an interest in protecting the vulnerable, and if a statute were narrowly drawn, it could survive.
Justice Neil Gorsuch asked Bhandari how her client's rights are being violated, noting that under just about any standard of intent, he would be convicted.
Bhandari acknowledged that her client had defrauded many people and will go to jail for 20 years. But, she said, the challenge here is to the statute as a whole and how it could inhibit speech about almost anything.
The government, with all its concessions on Monday, tried its best to persuade the court that a decision narrowly construing the statute would allow it to remain on the books. Whether it won the day remains to be seen.
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Waimea taro farmers John A'ana, Wesley Yadao and Galen Ka'ohi are the descendants of families who've nurtured the Native Hawaiian staple crop for generations. They worry that a proposed clean energy project would divert water that feeds their taro fields. (photo: Brittany Lyte/Civil Beat)
A proposed hydro project in Kauai — the first of its kind in the world — could supply up to a quarter of the island’s power by diverting 4 billion gallons a year from the Waimea River.
His tough-knuckled hands betray the necessity of a strong work ethic, an indelible link to his great-grandparents who planted the first seeds of the family’s taro-farming legacy.
“There’s a lot of memories in this valley,” said Yadao, who produces 900 pounds of taro a week with his wife and occasional help from charter school children.
Demand for the staple crop of the traditional Native Hawaiian diet is growing, farmers say, and about a dozen farms in Waimea struggle to keep up — optimistic circumstances for any food producer.
Yet today’s generation of taro farmers in arid West Kauai worry about the future of a cherished way of life.
A proposed renewable energy project promises to supply up to a quarter of the island’s total power usage by diverting 4 billion gallons of water a year from the Waimea River and its tributaries. Residents who rely on the watershed for fish, to grow much of the food they eat, or for commercial crop production fret about the effects of these diversions on the river’s health.
And while the project envisions promoting agriculture, farmers like Yadao worry that it will be at the expense of traditional practices like his that rely on the natural flow of the river.
Conceived in 2012, the West Kauai Energy Project is an integrated pumped storage hydropower, solar, and battery project — the first of its kind in the world. Water diverted from the watershed using plantation-era ditch systems would move between preexisting reservoirs to produce power on cloudy days and at night, reducing the island’s reliance on fossil fuels when the sun doesn’t shine.
The project would give aging infrastructure new life as pillars of the island’s green energy future. Part of the project generates energy by moving water in a closed-loop system and is not in dispute. The subject of controversy is the portion of the system that would divert water outside of the watershed — a hotly contested plantation-era practice that for over a century dried up streams across the state in order to feed monocrop agriculture.
The Kekaha Sugar plantation used to extract water from the Waimea River to feed its lucrative export crop while undermining the viability of small family farms along the watershed. Even after the plantation’s closure in 2000, water continued to be piped and dumped into gulches, storm drains and ditches.
A watershed agreement forged in 2017 now sets an 11 million gallon daily limit for Waimea river water diversions, requiring that any diversion “must be justified with no more water taken than is needed for other beneficial uses.”
Kauai’s electric utility has proposed to supply over 6 million gallons of its water allotment to open up food production on dormant agricultural land where the Department of Hawaiian Home Lands plans to build 250 homestead farms and pastures as part of the envisioned Puu Opae Homestead Settlement. The energy project would also support these future farms by bringing in electrical access and road upgrades.
The rest of the diverted water would be made available for agriculture on the Mana Plains in fields managed by the Kekaha Agriculture Association and owned by the state Agribusiness Development Corp.
Farming would need to increase significantly in this region to make use of the water that the energy project would provide. But there is no comprehensive farm plan for the use of so much water on these lands. Critics worry that if there is insufficient agriculture to use the water at the end of the diversion, then a precious resource would be dumped and wasted.
A 3,600-page environmental assessment approved by the Hawaii Department of Land and Natural Resources in late December found that the project would have “no significant impact” on one of Hawaii’s largest rivers. The agency’s approval precludes the project from performing a more rigorous environmental impact statement that community members say could help address their concerns.
West Kauai taro farmers and subsistence fishermen brought the project to a halt last month by filing a lawsuit against DLNR and its Board of Land and Natural Resources for failing to mandate the more tedious examination of the project’s environmental effects. The complaint says former DLNR Chair Suzanne Case improperly “rushed a rubberstamp approval” of the project’s environmental assessment three days before Christmas as one of her last acts as the department head.
DLNR spokesman Dan Dennison said the agency does not comment on pending litigation.
Represented by Earthjustice, the West Kauai farmers and fishermen who filed the lawsuit through the community groups Poai Wai Ola and Na Kiai Kai question how there could be no harm in diverting roughly 11 million gallons of water a day and then discharging some of that water onto the Mana Plain if there isn’t enough farming underway to make use of it.
The legal complaint argues that water dumped outside the watershed would collect sediment and pesticides left on the landscape from the plantation days on its way out to the ocean — a problem for the health of the nearshore marine environment.
“What we’re looking for is that commitment of one to one: For every gallon of water that they take from the watershed for hydroelectricity there needs to be one gallon of water made available for agriculture, ideally for taro farming,” said Marti Townsend, engagement specialist for Earthjustice, citing a term of a 2022 follow-up watershed agreement. “KIUC agreed to that, and our concern is that they are not going to be able to make good on that commitment.”
The addition of millions of gallons of daily water access could open up vast opportunities for the Kekaha Agriculture Association to expand farming on its thousands of acres, according to Mike Faye, who manages the farmers cooperative. Roughly 3,500 acres of active KAA farmland — mainly research seed corn but also vegetables and mango — utilize between 2 million and 3 million gallons of water a day, Faye said.
“We’re optimistically looking at this side of the island on Kauai with its great growing conditions — a lot of sun, for the most part good soil — and the missing part is this imported water,” said Faye, adding that KAA does not yet have a written farm plan for the water.
The utility has agreed to work with Poai Wai Ola to develop protocols to ensure that every drop of water diverted for hydroelectricity is, in fact, matched with water used for agriculture, according to KIUC spokeswoman Beth Amaro.
The farmers and fishermen say they aren’t against renewable energy. But they want full disclosure of the project’s environmental and cultural impacts.
“It’s not for us,” Yadao said of the fight for closer scrutiny of the project. “It’s for our great-grandchildren. For them, hopefully we can make the right decision.”
In the fight against climate change, Hawaii was the first state to commit to shift away from the fossil fuels heating the planet and create a purely renewable power supply by 2045. With roughly 60 percent of its grid now untethered from oil, Kauai’s electric utility is powered by the largest share of renewables in the state.
It’s also one of only a few utilities in the U.S. that’s capable of running on 100 percent renewable energy most of the day.
But when the sun disappears at night the utility’s battery storage kicks in, covering a portion of the evening peak when many families cook dinner, shower, and watch TV. Then the oil-fired generators rev up to meet the bulk of the island’s energy demand until morning.
The West Kauai Energy Project is poised to increase the utility’s renewable energy capacity to 80 percent, according to KIUC. It would achieve this in part by creating 12-hour energy storage capability that would stabilize the grid by bolstering electricity production from renewable sources when the sun’s not shining.
The project is estimated to save roughly 8 million gallons of oil annually, moving the utility closer to its goal of achieving 100 percent renewable energy production by 2033 — more than a decade before the state mandate.
Kauai’s energy portfolio currently includes 45 percent solar, 14 percent hydro, and 11 percent biomass. Finding new alternative energy sources or improving energy storage capacity through projects like the WKEP could be crucial to the effort to continue to phase out fossil fuels.
It’s not just about saving the planet, KIUC says.
There’s a financial incentive to embrace renewables. Hawaii’s electricity prices are higher than nearly anywhere else in the nation. For KIUC’s 34,000 members, the WKEP promises to reduce the cost of power by an estimated $157 million to $200 million.
The average ratepayer would save about $20 on their monthly electric bill, according to KIUC President and CEO David Bissell.
The advantage of transforming a mostly abandoned water diversion system into a renewable energy source is twofold: It saves time and money.
Constructing the WKEP would take up to three years at a cost of roughly $200 million, a tab that would be paid by the utility’s partner developer AES Corp, Bissell said.
“The ditches, water diversions and reservoirs are all relics of the plantation days and just need some rehabilitating,” Bissell said.
Eventually, KIUC will likely turn to biofuels to close the final 5 percent to 10 percent gap in its renewable energy portfolio, Bissell said. The WKEP stands to minimize the utility’s need for biofuels, helping to keep expenses in check. That’s because biofuels are an expensive renewable energy source that could impose a heavier hit on ratepayers.
“Finding ways to economically reach 100 percent is essential for our ratepayer members to be able to control their electric bill,” Bissell said. “This is great because it allows us to do that.”
The utility touts dozens more benefits, including temporary construction jobs and the use of the project’s rehabbed reservoirs for fire suppression and improved public trout fishing.
Kauai holds a prominent role in the production of taro, or kalo, a sacred crop tied to Hawaiian beliefs about creation.
Hanalei on the island’s north shore is the taro capital of Hawaii, home to farms that produce more than two-thirds of all the taro in the state.
Taro farming also has a storied heritage in Waimea, although many river-fed farms that once dotted the watershed were lost during the plantation era when water diversions left some agricultural regions dry.
Farming for taro across the islands has been declining year after year even as farmers say there is a growing demand.
The dozen farms that remain in Waimea are up against several threats, including aging farmers who find difficulty attracting a new generation to replace them and barriers to accessing land, water, and infrastructure.
Another concern: More frequent and severe drought. Farmers worry this expected consequence of climate change could reduce the volume of water in the Waimea watershed, jeopardizing a crop and a way of life that depends on the river.
Kawai Warren, a Kauai fire captain and subsistence fisherman who has lived on the west side for 40 years, said he worries that a long history of water waste in Waimea is on the verge of repeating itself.
“It’s not just the taro, but the life in the river that supports the nearshore fisheries that has been depleted by the plantation,” he said. “I thought it was time to let the river heal. But now they want to continue doing what the plantation did for 100 years.”
The project has been brought to a halt by the dispute, which has created frustration for residents who consider themselves protectors of the river as well as utility executives eager to achieve ambitious green energy goals. Until the lawsuit is resolved and the environmental assessment is cleared, KIUC can not move forward with securing permits and finalizing land agreements — precursors to starting construction.
For now, plans that constitute a giant leap forward for the island’s renewable energy future are stuck in limbo.
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This year, MAGA GOP activists in Georgia attempted to disenfranchise hundreds of students by trying to kick them off the voter rolls. De...
