Marvin Risen, my father’s brother, died long before I was born. He was an FBI agent in Nashville and was killed in a plane crash in 1943.

But decades later, when I was growing up, something about Marvin’s death still troubled my family.

My parents often talked about how they had never been given any answers about Marvin’s death, and that led them to speculate wildly, trying to connect the dots. They openly questioned whether he had been the victim of wartime sabotage. His plane crashed in the middle of World War II, and his Nashville FBI office was not far from Oak Ridge, Tennessee, then home to a critical part of the Manhattan Project: America’s top-secret program to build an atomic bomb before Nazi Germany. They sometimes wondered whether spies had blown up Marvin’s plane because he had uncovered an atomic espionage ring.

It wasn’t until this year — more than 80 years after my uncle’s death — that the full story of Marvin Risen and the Federal Bureau of Investigation would finally be resolved. But even then, the FBI’s painful treatment of our family would leave an open, unhealed wound.

In hindsight, I see that my parents long, failed struggle to grasp the truth about Marvin’s death wasn’t their fault. It was the result of the FBI’s callous handling of Marvin’s case — and many others like it. When my uncle was killed, FBI Director J. Edgar Hoover was at the height of his power, and he ran the FBI like a dictatorship. The bureau was a cult of personality built around Hoover; he served a total of 48 years in his post, first as director of the FBI’s predecessor, the Justice Department’s Bureau of Investigations, and then as director of the FBI from its renaming in 1935 until his death in 1972.

Hoover accumulated power in part through his legendary ability to manipulate the press to propagandize and glorify the FBI. He created a mythic origin story for the FBI built around its manhunts and gun battles with Depression-era gangsters like John Dillinger; FBI agents killed in shootouts with gangsters became Hoover’s martyrs. But that meant that FBI agents like Marvin, who died in accidents or from illnesses, were largely ignored by Hoover’s FBI — even if their deaths were work-related.

On October 15, 1943, American Airlines Flight 63 crashed in rural Tennessee, killing all 11 people on board, including Marvin. The aircraft crashed soon after taking off from Nashville for a short flight to Memphis. Records show that, not long after leaving Nashville, the pilot radioed to air traffic control asking for permission to climb to 8,000 feet, possibly in an effort to find a band of warmer air to get rid of ice clinging to the wings and propellers, according to a later federal investigation by the Civil Aeronautics Board, which then regulated commercial aviation. But as the plane gained altitude, ice continued to build, making it impossible to control.

The plane rapidly lost altitude and crashed into a wooded hill near Centerville, about 60 miles from Nashville. The area was so remote that the crash site wasn’t discovered until the next morning by a farmer, who then drove 3 miles to the town of Wrigley, where he could get a phone to call officials in Nashville. In its 1945 final report on the crash, the Civil Aeronautics Board was critical of American Airlines for allowing the plane to fly without deicing equipment; American had removed the equipment in the summer and had not yet reinstalled the gear for the fall and winter. The crash was caused by the “inability of the aircraft to gain or maintain altitude due to carburetor ice or propeller ice or wing ice or some combination of those icing conditions while over terrain and in weather unsuitable for an emergency landing,” the report stated. The agency’s report said that if the weather conditions on the route were known by the airline, that “should have precluded the dispatch of the flight in an aircraft not equipped with wing or propeller deicing equipment.” 

The plane nosedived into the ground, leaving a crash scene so horrific that none of the bodies could be easily identified. It was so terrible that Ernest Gann, an American Airlines pilot and author, wrote about the crash in his acclaimed 1961 memoir on the dangerous early days of aviation, “Fate is the Hunter,” which was turned into a movie in 1964.

Marvin Risen could only be identified by his official FBI briefcase. He was just 27 when he died. He had been with the FBI since 1939.

After I grew up and became a reporter, my family’s questions about what had happened to my uncle remained unanswered. As a journalist covering intelligence and national security issues, I frequently reported on stories involving the FBI, and that experience taught me that it was not surprising that the bureau had failed my family. The FBI was insular and slow to change, and many aspects of the FBI’s culture still bore the imprint of J. Edgar Hoover long after his death. 

So in the 1990s, I decided to take the initiative and find out what I could about Marvin Risen and the FBI. I filed a Freedom of Information Act request with the FBI for Marvin’s personnel file. After a three-year wait, a huge package from the FBI arrived at my home, filled with hundreds of pages of ancient letters and memos documenting my uncle’s life and death. The files taught me things I didn’t know about my family; they revealed that my father was interviewed by the FBI when the bureau was considering hiring his brother. The files also showed that before he was promoted to special agent, Marvin started out working in the FBI’s fingerprinting unit, and later served as a tour guide at FBI headquarters in Washington.

But the most significant discovery in the files came from internal FBI memos that described the way in which the FBI handled Marvin’s death. 

The files showed that immediately after the plane crash, Hoover took a personal interest in Marvin’s case. Phone calls, telegrams, and internal FBI communications flew back and forth between Hoover and the FBI agents in Nashville and on the scene of the crash; it was clear Hoover had some of the same suspicions about the cause of the crash that later bedeviled my parents. Hoover wanted to know whether the crash was an act of sabotage, designed to kill an FBI agent. Adding to the intrigue was the fact that Blan Maxwell, the speaker of the Tennessee state Senate, was one of the other passengers who died. At the time, Maxwell was widely considered the leading candidate to become the next governor of Tennessee. Prentice Cooper, the governor at the time, was one of the first officials on the crash scene, mingling with the FBI agents who were scouring the site.  

But the FBI quickly determined that the crash was just an accident. Once the FBI concluded that the plane was not downed by sabotage, Hoover lost interest. There was no drama in Marvin Risen’s death that Hoover could use to glorify the FBI. The files show that the FBI’s interest quickly shifted to finding Marvin’s FBI badge and gun amid the wreckage. When his gun was found, it was badly damaged from the crash.  

The files also revealed that Hoover and Clyde Tolson, his right-hand man and possibly his lover, personally decided not to include Marvin Risen on the FBI Wall of Honor, which listed the FBI’s valiant dead, the agents killed in the line of duty.   

The files reveal that Tolson was named by Hoover to be the chair of the committee set up to decide who was — and who wasn’t — included on the Wall of Honor. Hoover and Tolson wanted to reserve the Wall of Honor for agents killed in gun battles with gangsters and spies. The files included memos and messages between Hoover and Tolson showing that the pair decided that an accidental plane crash didn’t qualify as dying in the line of duty. They rejected Marvin Risen from consideration for the Wall of Honor, even though he was traveling in the line of duty when he died. He had been on his way to Memphis to meet with federal prosecutors about a bank robbery case. He wasn’t hot on the trail of an atomic spy ring or some other glamorous case. Yet he was involved in the kind of criminal investigation that made up much of the FBI’s day-to-day work.

At the time of his death in October 1943, Marvin Risen had one son, Daniel, and his wife, Mary Emily, was pregnant with their second son. In April 1944, she gave birth to Marvin Patrick Risen, who became known as Pat. 

Marvin’s wife, suddenly a widow in her mid-20s with two small children, was left to pick up the pieces after the shattering death of her husband. Yet the most that Hoover did to help was to offer her a secretarial job at the FBI’s headquarters, which would have required her to move from Nashville to Washington. She rejected the offer.

Later, two of Marvin’s sisters went to FBI headquarters in Washington to try to talk to Hoover about Marvin’s case. Hoover refused to come out of his office to meet with them, leaving them waiting — and insulted.

Marvin’s wife later remarried another agent in the FBI’s Nashville office, but both her sons kept Risen as their last name.

Daniel died by suicide when he was a young man. Pat Risen lived until 2022 and had two sons, Clay Risen and Michael Risen. Clay and I both worked at the New York Times together for many years; he continues to write for the Times and is the author of several books. His brother Michael is the associate head of school at the Norwood School, a private school in the Washington area.  

Out of the blue this spring, the FBI contacted Michael Risen: The bureau wanted to talk about his grandfather.

Decades after Marvin Risen’s death, the FBI had finally changed the Hoover-era standards for determining who should be included on the Wall of Honor. A review of old files on agents who had died in the line of duty but had been rejected by Hoover and Tolson had turned up Marvin’s case.

More than 80 years after his death, Marvin Risen was finally going up on the FBI’s Wall of Honor. 

Thomas Cottone, a retired FBI agent, said in an interview that he discovered Marvin’s case while going through old issues of an internal FBI newsletter, which contained an article about the plane crash. Cottone was already pushing the bureau to include the names of several other agents who had died in accidents while on duty, and so he began to advocate for Marvin as well.

One reason the FBI may have finally changed the qualifications for the Wall of Honor is that a number of FBI employees have died in recent years from cancer and other health complications resulting from exposure to toxins while serving at Ground Zero in New York and at the Pentagon after 9/11. Several employees who died after working at Ground Zero and the Pentagon in what were clearly work-related deaths have now been added to the wall; they would almost certainly not have been included under the old Hoover-era standards. 

In May, the FBI held a ceremony at its headquarters — which is named for J. Edgar Hoover — honoring Marvin Risen and seven others whose names have just been added to the wall. 

FBI Director Christopher Wray spoke at the event, and several members of my family attended. I was not one of them.

I couldn’t bring myself to attend the ceremony. I have my own personal history with the FBI, and that experience has been painful and complicated.

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During my time as a national security journalist, the FBI has over the years spied on me, sought to discredit me and my reporting, and even tried to help the Justice Department put me in prison as part of a long government campaign to silence me through the use of draconian leak investigations into my stories. At one time, there were FBI agents assigned to two separate federal grand jury investigations into my work. They pulled my life apart, sifting through my private data while subpoenaing and forcing testimony from many of my sources. They even spied on my children; they thought they had uncovered a big secret about me when they discovered that I had sent a wire transfer to Europe. It was actually money for my son, who was then on a study abroad program. 

Even as the FBI was investigating me, I had to continue to deal with the bureau as a reporter. I frequently went to FBI headquarters for interviews for new stories while I was still the subject of leak investigations related to earlier coverage. But I was always suspicious that the FBI was using the interviews at the Hoover building to try to get me to say something incriminating in connection with one of their leak investigations — or simply to intimidate me. 

For one story about the government’s counterterrorism operations, I went to FBI headquarters for an interview and was ushered into a windowless conference room where seven FBI agents were waiting for me. None of them would give me their names or talk to me at all. After I explained to them what I knew about the story I was working on, they all just sat and stared at me, not saying a word, refusing to comment or answer any questions. 

The FBI’s campaign of intimidation against me reached its peak when the bureau sent a team of agents to Europe to try to ambush a meeting I had scheduled with a source. The FBI found out about the meeting in advance from an informant who the FBI used to gather information about me. At the last minute, the ambush was averted when the FBI’s informant had a change of heart and tipped me off.

I haven’t forgotten.

I am prepared to go to FBI headquarters when it is required for my work as a journalist. But I didn’t want to go for a celebration, no matter how long overdue.

I believe that Marvin Risen would understand. 

The post My Family’s Long and Painful Relationship With the FBI appeared first on The Intercept.

Where children played, the ground bubbled. Birds swarmed, feeding on trash. At one point, a pile of 20 dead dogs and cats were dropped in the yard of the elementary school, just 100 feet away from classrooms. This was no ordinary playground.

A horrific stench of dead rats and decomposing garbage was impossible to escape, recalled Wayne Fields, who still lives in his childhood home opposite the site. “The smell was so bad, during school, after school,” said Fields, a 69-year-old businessman. “It was ridiculous.”

Both of Fields’s parents were teachers at the school. “We used to say that when we turn off the light we can all see each other because we are glowing from the chemicals,” he said.

Despite violating multiple health statutes, the local government was unbothered. “This is a necessary evil. I think we’re doing a very fine job,” then-City Manager William Green said in 1963. Besides, he said, the city poured “glorified perfume” on the garbage every so often.

This “necessary evil” has haunted this Florida community for decades. Sixty years later, the site is overgrown grassland, but contamination at the school still poses a large risk to students’ health. In the last few years, community members have called on the Alachua County school district and state agencies to assess the connection between the contaminated land and health issues in the area.

It is often difficult to show a direct link between a contaminant and adverse health impacts, and no such investigation has yet been done at the school. But for years soil and air testing have consistently revealed evidence of substantial environmental toxins on the property. Levels of the carcinogen benzo(a)pyrene peaked in 2020 at a concentration up to 218 times higher than what is considered safe for direct exposure in residential settings. Researchers, meanwhile, have pinpointed East Gainesville as an asthma hot spot.

For decades, a rotating cast of city, county, and state officials have been aware of the contaminants in the school yard — and have taken little action to address the problem, The Intercept found in an investigation based on hundreds of public and archival documents, government emails obtained through records requests, and interviews with dozens of Gainesville residents.

Alachua County officials have proposed renovations to the school and overseen the removal of some contaminated soil from the property in the last decade, while a local nurse’s advocacy prompted the state health and environmental protection departments to order additional soil testing in recent years. Their primary focus has not been the former landfill but another contaminant discovered decades ago: abandoned oil tanks. Yet what’s needed, former school district employees and community members say, is nothing short of the removal of the school in its entirety, a full cleanup of the site itself, and a comprehensive assessment of the impact of soil toxins on students’ health. Neither the school district nor the Florida Department of Environmental Protection seem willing to go that far.

“Williams Elementary is safe,” said Jackie Johnson, a spokesperson for Alachua County Public Schools, in an email to The Intercept. She added that the school board hasn’t received a formal recommendation to demolish or majorly reconstruct the school and that the district has no current plans to do so. 

District representatives met with the Department of Environmental Protection in January, Johnson said, and “it was made clear that there is currently no health threat to students or staff at the school.”

But just last month, the school board and the environmental protection department approved another round of soil and air testing at Williams.

The state Department of Health “has responded to many community concerns regarding Williams Elementary School,” Paul D. Myers, the department’s administrator in Alachua County, told The Intercept in an email. The state environmental protection department “continues to monitor the successful remediation at Williams Elementary” and will keep working with the school district and city “on any contaminated or potentially contaminated properties,” wrote Kathryn Craver, an external affairs director at the department’s northeast district.

This situation in Gainesville is not an anomaly. Dozens of schools across 35 states sit on or adjacent to former, or currently open, landfills, according to The Intercept’s analysis of news articles, state databases, and public records from across the country. From New York to Ohio, there have been many reported cases of illness, predominantly cancer, from both teachers and students who have attended schools next to hazardous waste. These occurrences tend to be in lower-income communities of color, The Intercept found.

No federal agency prohibits new schools being placed on, or next to, dump sites, or requires schools near landfills to conduct cleanups. In 2011, the Environmental Protection Agency was authorized by Congress to create voluntary school siting guidelines, but these remain discretionary and don’t apply to existing schools.

Florida state law makes it illegal to build a new K-12 school on or adjacent to a known contaminated site unless steps are taken to ensure that children will not be exposed to threatening levels of contaminants. But at Williams Elementary, like other schools in Florida, the contamination surfaced years after it was built.

The lack of regulation to address decades-old problems deepens an enduring crisis of environmental racism.

“We see a really strong pattern where white affluent students are facing significantly less risk at school,” said Sara Grineski, a sociology professor at the University of Utah who studies environmental health disparities. “It’s this long-standing pattern of the devaluing of people of color, pushing them into less desirable spaces.”

Second-Class Citizens

Williams Elementary is named after the Black businessman who built it in the 1930s, seeing a need for a school on the east side of Gainesville. A middle school was built across the field in 1955 — a few years before the landfill was placed in the backyard of Williams.

“We were Black and seen as second-class citizens,” said Gussy Butler, aged 95, one of East Gainesville’s oldest residents. “They weren’t concerned; it was a Black area.”

The dump site was 150 feet away from students sitting in classrooms, and the pollution was made worse by the area’s impractical geography. The east side of Gainesville is lower and has more sensitive wetlands than the west, where economic development has generally been focused.

Local media began covering the dire consequences several years after the landfill was built. “The ditch is filled with black, stagnant water pumped from holes dug to hold the garbage,” the Gainesville Sun reported in June 1963. “The area being filled with garbage is wetter than normal so the odor problems are compounded. The health department conceded that the area is ‘a little too wet for an ideal landfill.’”

Still, the city stood firm. “Many of us and our children have spent many happy hours on top of a landfill,” wrote City-County Health Officer Edward G. Byrne in an op-ed at the time. “I do not believe this will be a major problem for Alachua County for some time to come.”

Yet by the end of that summer, following petitions to the city for relief, the dump was moved to airport land. It was already clear that the implications would be long-lasting. “Building on the filled land is out of the question for 10 to 15 years. As the garbage slowly decays the earth will gradually settle,” a Gainesville Sun article said. “Any building constructed on it probably would be ruined within a short period by the sinking.”

At the end of the decade, the Nixon administration founded the EPA, a pivotal moment in the monitoring of toxic sites. “Some of the reasons we have these situations occurring today is that prior to the foundation of the EPA, there were few, if any, environmental laws that protected human health,” said Claudia Persico, a professor at American University who researches environmental policy.

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Yet, the EPA’s process for identifying so-called Superfund sites — referring to polluted and hazardous locations — has often failed to capture the most deprived communities. The EPA’s national priorities list is “a little bit ad hoc,” said Steph Tai, an environmental law professor at the University of Wisconsin–Madison. “It’s sort of advocacy based, like people have to advocate for something to rise to that level.”

In a chronically underfunded area such as East Gainesville, the landfill’s potential for long-term contamination was quickly forgotten after it was closed. With a lack of resources, people had other concerns. “It just went away,” Fields, who lives across the site, said. “Nobody discussed it.”

Sinking Buildings

At Williams Elementary, the prediction that buildings would sink proved prophetic, even a quarter of a century later. In 1989, the district began constructing a half-million-dollar music and art suite at the school.

“They put Williams at the top of the list because it had been deprived for so long,” said Jennifer Lindquist, a former art teacher at the school for 22 years.

Almost as soon as the new facilities were built, the building began to fall apart. “The crack became straight through the building and through the foundation and everything,” Lindquist said. “It was not sound ground. When they pulled up the borings you could still see decomposing trash.”

In April of that year, city planners — members of a citizen board that reviews land use — found records of the landfill while working on a report. Gainesville city commissioners told the Alachua County School Board to take soil samples. The school board was going to “run a plug down there and test the soil,” Norm Bowman, then planning board clerk, said at the time. “It’s no big deal.”

But the problems extended beyond the remnants of the former landfill. Around the same time, the Florida Department of Environmental Protection found “excessively contaminated soil” on the property that was polluting the groundwater. The contamination was attributed to four underground storage tanks containing heating oil. From the 1960s to 1980s, these were common in rural locations without main gas lines. The school board registered the tanks in 1987 but didn’t know when they had been installed, Craver, from the Florida Department of Environmental Protection, told The Intercept in an email.

In 1988, the school district applied for the environmental department’s Early Detection Incentive, which provided state-contracted cleanup to owners of underground petroleum tanks with suspected contamination. The site was assigned a ranking score of 9 out of 10. According to the department, “the higher the score, the greater the potential threat.”

But state officials ultimately decided that excavating the soil was “considered to be inappropriate … because of the high cost due to the depth of contamination.”

There are multiple conflicting narratives on the dates the tanks were removed. State records reviewed by The Intercept state that, as of 1991, three of the four tanks had been abandoned in place. Craver, meanwhile, said that three tanks were removed in 1988, with the other in 1991, but “oil can remain in soil for decades until remediated.”

What’s undisputed is that the tanks had corroded, leaving oil to seep out across the site. Still, the state went quiet for another two decades. This time, both the landfill and the oil tanks were forgotten.

Asthma Hot Spot

DeVante Moody, who started attending Williams in the late 1990s, remembers being teased about his “trash school.” At first he thought it was just typical school rivalry, or because the students sucked at sports.

“The running joke came from the community: ‘Oh, y’all go to the trash school,’” said Moody, now 31 years old and a support technician at the University of Florida hospital network. Like Wayne Fields, whose son also attended Williams, multiple generations of Moody’s family attended the school. His 11-year-old son now attends the neighboring Lincoln Middle School.

Moody recalls “the forbidden area,” a closed-off field the size of a large swimming pool, where students were not allowed to venture. They were never told why. Classrooms sat in trailers beside it, and children ran around the adjacent field at lunchtime.

It wasn’t until years later that Moody discovered it had been a landfill. “They literally meant ‘Y’all go to the trash school’ because it used to be a trash dump,” Moody realized. “So this is not a joke. This is serious.”

Throughout his childhood, Moody, like many of his classmates, had trouble breathing. “We were all just asthmatic children. We just thought it was normal,” he said.

Moody’s respiratory issues were particularly serious, and he was hospitalized twice with collapsed lungs. He distinctly remembers being in the intensive care unit at age 7, turning to his father and asking: “Am I going to die?”

Researchers recently identified East Gainesville as a pediatric asthma hot spot and linked poor health outcomes to racial and economic segregation. Across Alachua County, asthma-related hospitalization rates were nearly three times higher and emergency department visits were six times higher for Black residents than for white residents in 2018. Other research has shown that the hospitalization rate due to pediatric asthma in Williams Elementary’s ZIP code ranks among the worst 25 percent of ZIP codes in the state. The group most deeply affected are Black children aged 5 to 9. 

It’s part of a nationwide trend: A study published by The Associated Press last year found that Black children are more likely to have asthma than kids of any other race in America, mostly due to the influence of past racist housing laws and proximity to pollution.

In 2008, a few years after Moody left Williams Elementary, the Florida Department of Environmental Protection mobilized contractors to test contamination at schools across the county. “The state asked us to quickly go run out to all multiple schools and take soil samples around just to try and make sure that everything’s OK,” said Jesse Brown, senior engineer at Golder Associates, who visited Williams and 20 other schools at the time. “They just wanted a quick snapshot to see what risk each of these sites had.”

At Williams, Brown’s team identified two of the former underground petroleum tanks and took half a dozen soil samples. They didn’t find anything concerning, according to a report the firm submitted to the state environmental agency.

Yet that finding did not appear to sufficiently assuage the agency. Seven years later, the agency reached back out to the Alachua County School Board about Williams Elementary to offer more state funding for research into petroleum contamination. Another contractor was sent out to the school in 2015. Over the next two years, engineers who analyzed soil samples found high concentrations of multiple carcinogenic chemicals and benzo(a)pyrene equivalents, a way of evaluating the overall carcinogenicity of multiple compounds. BaP — which is commonly found in cigarette smoke, exhaust fumes, and asphalt — and BaP equivalents are generally considered safe at concentrations of 0.1 mg/kg. At Williams, analysts detected a level of 7.2 mg/kg. Prolonged exposure to the chemical increases the risk of cancer, as well as asthma, according to scientific studies. 

In general, communities of color suffer disproportionately from environmental toxins. Grineski, the University of Utah sociology professor, said that her research shows that “a district with more foreign born kids and more Black kids has greater concentrations of cancer-causing air toxins than other school districts.”

The state’s health department, which investigates cancer clusters, does not consider East Gainesville to have a higher than normal incidence of cancer. The agency “does not have any data that is indicative of a cancer cluster in the community,” Myers, the department’s administrator in Alachua County, told The Intercept in an email.

Still, Fields, who struggles with various health issues — including trouble breathing since he had a heart attack a couple years ago — strongly believes it to be so.

On a drive around East Gainesville, Fields gave a biography of the generations of homeowners. As he pointed out house after house, he explained how each family had in some way been affected by the disease.

“This neighborhood is mostly made up of widows,” he said.

A Community’s Outrage 

In 2017, two years after the state funded a new round of testing at Williams Elementary, the Alachua County school district issued a press release notifying parents that elevated levels of BaP had been found in the soil, due to contamination from petroleum products.

The district said it would be removing and replacing soil from parts of the school courtyard. Still, school officials assured parents that “the levels found at Williams would not pose a health risk unless there is a lifetime of exposure, which would mean eating or touching the soil every day for thirty years.”

For Moody and Fields’s families, who had lived in East Gainesville all their lives, being in such close proximity daily is not that much of a reach. Yet, Moody, whose cousins attended Williams that year, said that, to his knowledge, his relatives didn’t hear about the contamination at the time. “My family had not one clue,” he said.

The state removed over 2,500 tons of petroleum-contaminated soil from the courtyard and transported it to a waste site in Georgia before the start of the school year in September. A concrete cap was placed over the remaining contaminated soil until it could be excavated in school breaks over the following year. Another 1,000 tons were removed between December 2017 and June 2018.

“Due to this excavation and removal, the accessible soils are no longer an exposure risk,” Craver said.

Meanwhile, the school district held a public forum, titled “Schools of the Future,” where community members could submit anonymous feedback. Many of the comments mentioned the Williams and Lincoln schools — and some referenced the former dump site. “Can Williams Elementary use the surrounding land to increase/renovate since the school was built on a dump site!! This should be a priority!!!” one comment said. “Remove Lincoln and Williams off the dump site,” another person wrote.

With no further action from local officials, community members continued to press the issue. In June 2019, Fields and other residents expressed their frustrations on the area’s history in a public county meeting on plans to expand another dump site in the area.

“What you’re talking about doing, it’s preposterous,” Fields said.

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As Covid-19 hit, others started asking questions. Alexandria Owens, a pediatric critical-care nurse scientist working in East Gainesville, began to look into why so many kids ended up in the intensive care unit with asthma issues.

Poking around online, Owens found the state records about the eroded oil tanks at Williams. She spent hundreds of hours reading documents and compiling data. She wondered if there was a correlation between the toxic soil and the state of children’s health in the area. “Kids end up on life support,” Owens said. “It’s alarming knowing that these types of chemicals can exacerbate asthma.”

Owens had no idea about the former dump site, which is not mentioned in state environmental or health department records. But she started reaching out to the school district in March 2020 about the high asthma rates in the neighborhood and the leaked oil tanks. “I felt like my argument was even stronger because these kids are at a higher risk, let’s actually sound the alarm because Covid-19 is happening,” Owens said. “But that did not happen.”

At every turn, Owens was being stalled. “You don’t need to be calling all these people,” a manager of the Petroleum Restoration Program at the Florida Department of Environmental Protection told her in a phone call in June 2020, according to notes Owens took at the time. “Pediatric asthma wasn’t in our top priority list,” a community programs administrator at the Alachua County Health Department told Owens the following month. (The employee was referencing priorities from a county-level assessment that happens every few years, according to Myers, the health department’s administrator in Alachua County.)

It was Owen’s outreach that ultimately triggered the Florida Department of Health to conduct an assessment at the school. In July 2020, the department published a report stating that it “does not expect the occurrence of health risks associated with exposure to groundwater and soil.” But the report was not comprehensive; the department could not evaluate indoor air quality or assess the impact on students prior to 2016 due to insufficient or unavailable data.

The department said the concentrations of BaP that had previously been found in the soil could create additional health risks if it vaporized into the air. The report recommended that the department continue to assess indoor and outdoor air quality for the presence of the chemical. Owens was relieved an assessment had been done but continued to press state and local officials on the issue.

At times, she grew frustrated with the process. In a July 2021 email outlining an apparent miscommunication between the school district and the state environmental agency about the state’s plans for the school, she wrote that such communication breakdowns “will continue to delay the timely remediation of a problem that could absolutely exacerbate health issues in the children from my community.”

She also felt that, in addition to testing, there needed to be more excavation — and that the school building should be moved.

Stalled Reconstruction

Carlee Simon, who became interim superintendent of Alachua County Public Schools in December 2020, shared Owens’s assessment. Simon had attended Williams as a child, and her parents were teachers in the district, but she knew nothing of the site’s toxicity before starting the job.

Based on the information she got from colleagues and the environmental department and the aged state of the building, Simon soon concluded that the only solution was to rebuild the entire school. “We needed to have the entire building demolished,” Simon said. “Our discussions were how long would it take between us tearing down the building and the soil actually being addressed and ready for us to build on. That was like a massive unknown.”

It was likely going to take years, and the school board was divided. “It was pretty clear that budget priorities of the past shaped that community,” she said. She noted that a new school was built in a wealthier part of Gainesville just a few years earlier. “The first completed school they built was in a highly affluent and influential community, not a dilapidated building on the east side,” she said.

Gainesville’s east side is also still haunted by the decision back in the 1950s to put a dump in a residential neighborhood near two schools. Archival records show that city officials placed the landfill near the schools with the hopes that burying trash in the swampy land would make the land usable in the future. Jennifer Smart, the communications director for the city of Gainesville, told The Intercept the current government couldn’t speak to the school’s environmental problems. “With so much of this timeline reaching back many decades, it’s a historical record in which current City of Gainesville leadership did not participate and have no specific knowledge,” Smart wrote in an email.

Experts told the Intercept that cost-pressed governments often build schools on cheap land. “The tension is often between like there’s concern for student’s health, but also there’s the concern about using public monies for more expensive lands,” said Tai, the UW–Madison environmental law professor. “So a lot of times economic concerns sort of pressure states into still siting schools in toxic areas.”

After multiple disagreements with the board, including on other topics such as how to handle Covid-19, Simon was fired from the job after 15 months — the seventh superintendent to leave the job in the last 10 years. She is now interim dean for the School of Education at the University of Alaska Southeast.

While internal school district emails indicate there were plans to renovate the school in 2021, that has still not happened. A list of reconstruction projects on the school district website dating back to November 2019 describes design plans for four other schools in the district. Williams Elementary, however, is stuck in limbo. According to the website, “the district is drafting the required state application for permission to demolish buildings on the campus.”

Johnson, the school district spokesperson, told The Intercept that the Covid-19 pandemic drastically changed the district’s reconstruction plans: “Facilities projects that have been completed have cost much more than originally expected, affecting the timeline for other proposed projects.” Williams is among the projects that fell by the wayside.

More Testing, More Toxins

Soil and air testing have been a constant at Williams Elementary over the last several years. Since July 2020, state contractors have been deployed to the school at least a dozen times. 

The most alarming results came in November 2020, when soil testing revealed BaP equivalent levels of 21.8 mg/kg in one part of the property: 218 times over the recommended residential limit. (State records show that BaP equivalent levels fluctuated over the next year and a half, dropping down to 7.8 mg/kg in that same area by July 2022 and to 2.6 mg/kg on a different part of the property.)

In a letter to Williams Elementary in December 2020, the Florida Department of Environmental Protection alerted the school that two chemicals, naphthalene and acenaphthene, had been found in the soil. The latter was present at three times the standard level. Exposure to naphthalene by inhalation is associated with hemolytic anemia, damage to the liver, and neurological damage, according to the EPA. In late 2021, the environmental department installed a venting system underneath one of the school’s buildings to mitigate soil concentrations of naphthalene.

Air quality has also been a persistent issue at Williams, and on at least one occasion in 2020, a teacher reportedly complained about it to the principal, according to an email obtained by The Intercept. State contractors, meanwhile, have repeatedly found elevated levels of chemicals in the air at Williams, including chloroform, a possible carcinogen that is often used in industrial processes. 

In February 2021, after Owens’s urging, the state Department of Health released a report sampling six indoor air and four outdoor locations at the elementary school. The department found that it was possible there would be vapor intrusion, which is the migration of chemicals from the soil into the air. The report found that some concentrations of chemicals, including benzene, carbon tetrachloride — which can produce kidney and liver damage — and chloroform were at a level where they could cause considerable health risk through exposure. The health department recommended continued air monitoring.

That same month, a firm contracted by the environmental department reported excess levels of naphthalene in the air, as well as BaP in the soil.

Despite the findings in Gainesville, the state health department touted Williams Elementary as one of its “Success Stories.” Though students and workers at the school had been “exposed to contaminated soil and air,” the post said, they were not expected to develop adverse health effects.

Experts studying air pollution in schools have revealed it has extremely damaging effects on children. “Air pollution can cause what’s called externalizing behaviors, aggressive behaviors in kids,” said Persico, the American University public policy professor. “That causes them to get into fights or to misbehave, and then they’re more likely to be suspended in school.”

An Ongoing Issue 

Despite years of appeals from within the school and the broader community, Williams Elementary is still trying to find a way to get rid of the polluted soil. The school district’s maintenance manager asked the Florida Department of Environmental Protection in an email last May “about the possibility of having some assistance with the removal of the contaminated soil, if and when the Board decides to demo Buildings 1 and 2 at Williams.”

An environmental consultant at the department responded that the agency could investigate and cover the cost of needed remediation if the school board approved renovations or demolition.

The environmental department recently contracted Leah D. Stuchal, a research professor at the University of Florida, to review air testing results from November that revealed excessive levels of chloroform. In February, Stuchal concluded that the excess levels “were not believed to be a result of petroleum contamination” and that monitoring for petroleum contaminants in indoor air was no longer needed. Still, Stuchal recommended continued monitoring for chloroform, of which the source remains unclear.

“The recommendation for continued monitoring of chloroform is because the source is unknown and the population exposed involves children,” Stuchal told The Intercept in an email.

Craver, of the environmental department, said that “out of an abundance of caution,” the agency “continues to maintain a passive venting system and conduct indoor air monitoring.”

The school recently concluded another round of testing, but there are no public records of testing at Lincoln Middle School across the field. And the long-forgotten landfill remains part of the land’s history.

Meanwhile, community members in East Gainesville have been waging a fight against the expansion of a different landfill. Just 2 miles from the schools, it was meant to close in January but has applied to continue operating until 2028. As a local news outlet reported last year, “It’s history repeating.”

“The people in our neighborhoods … I can guarantee you they have experienced enough tragedies,” Fields said in a county meeting on the proposed landfill plans. “It used to be an ongoing joke in our neighborhood, we are all gonna die from cancer because the dump site was right there between Lincoln and Williams Elementary. Well, guess what happened?”

The reporting for this article was supported by the Fund for Investigative Journalism.

The post For Decades, Officials Knew a School Sat on a Former Dump — and Did Little to Clean Up the Toxins appeared first on The Intercept.

The alleged plot coincided with growing concern about far-right political violence in America. But the FBI quickly realized it had a problem: A key informant in the case, a career snitch with a long rap sheet, had helped to orchestrate the kidnapping plot. During the undercover sting, the FBI ignored crimes that the informant, Stephen Robeson, appeared to have committed, including fraud and illegal possession of a sniper rifle.

The Whitmer kidnapping case followed a pattern familiar from hundreds of previous FBI counterterrorism stings that have targeted Muslims in the post-9/11 era. Those cases too raised questions about whether the crimes could have happened at all without the prodding of undercover agents and informants.

For the FBI, the stakes in the Whitmer case were high. If defense lawyers learned of Robeson’s role in the kidnapping plot, the FBI agents feared, they’d be accused of entrapment. The collapse of the case, built over nearly a year using as many as a dozen informants, two undercover agents, and bureau field offices in at least four states, would have been a public relations coup for right-wing politicians and news media. Both groups have used the problematic investigation as evidence that the Justice Department has been “weaponized” against conservatives — despite a decadeslong public record proving the opposite — and as fuel for conspiracy theories that the January 6 Capitol riot was engineered by the FBI.

But the truth about the Whitmer kidnapping case is far more complicated. This story is based on thousands of pages of internal FBI reports and more than 250 hours of undercover recordings obtained by The Intercept. The secret files offer an extraordinary view inside a high-profile domestic terrorism investigation, revealing in stark relief how federal agents have turned the war on terror inward, using informant-led stings to chase after potential domestic extremists just as the bureau spent the previous two decades setting up entrapment stings that targeted Muslims in supposed Islamist extremist plots. The files also suggest that federal agents have become reckless, turning a blind eye to public safety risks that, if addressed, could disrupt the government’s cases.

The FBI documents and recordings reveal that federal agents at times put Americans in danger as the Whitmer plot metastasized. In one instance, the FBI knew that Wolverine Watchmen militia members would enter the Michigan Capitol with firearms — and agents suspected that one man might even have had a live grenade — but did not stop them. (The grenade turned out to be nonfunctional.) Another time, federal agents intervened when local police officers in Michigan were about to confiscate firearms from two of the FBI’s targets, who were on a terrorist watchlist. Local law enforcement had received reports from concerned citizens who saw the men loading their guns before entering a hardware store.

The files also raise questions about whether the FBI pursued a larger, secret effort to encourage political violence in the run-up to the 2020 election. At least one undercover FBI agent and two informants in the Michigan case were also involved in stings centering on plots to assassinate the governor of Virginia and the attorney general of Colorado.

The FBI refused to answer a list of questions. “Unfortunately, due to ongoing litigation, we are unable to comment,” said Gabrielle Szlenkier, a spokesperson for the FBI in Michigan. Robeson, through his lawyer, also declined to comment.

Federal agents paid Robeson nearly $20,000 to participate in a conspiracy that evolved into a loose plot to kidnap the governor of Michigan, according to the documents. But FBI agents knew that two other informants and some of the defendants in the Whitmer case believed that Robeson was the plot’s true architect.

So on December 10, 2020, agents called Robeson into the FBI’s office in Milwaukee in an apparent attempt to silence him. In an extraordinary five-hour conversation, which FBI agents recorded, one of Robeson’s handlers told him: “A saying we have in my office is, ‘Don’t let the facts get in the way of a good story,’ right?” Despite federal and state trials involving the kidnapping plot, this recording — which goes to the heart of questions about whether the FBI entrapped the would-be kidnappers — was never allowed into evidence. The Intercept exclusively obtained the full recording and is publishing key portions for the first time.

The FBI agents asked Robeson to sign a nondisclosure agreement and proceeded to coach and threaten him to shape his story and ensure that he would never testify before a jury. Their coercion of Robeson undermines the Justice Department’s claim, in court records, that Robeson was a “double agent” whose actions weren’t under the government’s control. The agents also made it clear that they had leverage: They knew Robeson had committed crimes while working for the FBI.

“We know we have power, right?” an FBI agent told Robeson during this meeting. “We know we have leverage. We’re not going to bullshit you.”

Robeson’s role as an informant in the Whitmer kidnapping plot was supposed to be a tightly held secret. FBI agents had written the charging documents to conceal his identity.

But the FBI’s paperwork was sloppy. Supporters of the 14 defendants began to piece together clues from details like the FBI’s descriptions of passengers in a car that had been driven near Whitmer’s vacation home in Antrim County, Michigan. The clues appeared to point to Robeson as a snitch — or, in the FBI’s terminology, a confidential human source. After the October 2020 arrests, a panicked Robeson started calling targets of the FBI investigation and denying that he was an informant.

“So when you call, your intentions are to keep some of the heat off of you, right?” an FBI agent asked Robeson during the December 2020 meeting. “To point people in the other direction?”

“Anywhere but me,” Robeson answered. “Not at anyone specific, just away from me.”

Robeson was talking to Henrik “Hank” Impola and Jayson Chambers, two of the lead FBI agents in the Michigan case. Chambers, who previously played in a rock band that “bases all of its music on the fact that Christians are in a spiritual war,” was the registered owner of a private intelligence company whose purported CEO ran a Twitter account known for right-wing trolling and that appeared to tweet about the Michigan case before it was announced.

The two agents started up a good-cop, bad-cop routine with Robeson. Chambers assured him they had done all they could to conceal his role as an informant. Impola, meanwhile, said they needed to come up with a plausible cover story.

“Robey’s Idea From Day One”

From the start of the investigation, the FBI knew that Robeson, like many paid informants, had credibility problems. Robeson has been in and out of the criminal justice system since the early ’80s, charged with having sex with a minor, writing bad checks, bail jumping, and many other offenses. Robeson also acknowledged to the agents that he was previously a member of an outlaw motorcycle gang. “I can’t blame what I did on anybody else,” Robeson told FBI agents of his criminal record. “I’m doing what I hope is better now.”

Sexual misconduct is a repeated claim in allegations involving Robeson, and his handlers at the FBI knew this. A local police report in the FBI’s files describes how a 17-year-old claimed Robeson coerced her to have sex in return for a promise to put her pictures in a calendar. He pleaded no contest to the misdemeanor charge.

More recently, according to an internal FBI report, a woman who lived in Robeson’s garage in Wisconsin told federal agents that Robeson pressured her for sex because he said she wasn’t contributing enough to the household. “I would not call it rape,” the woman said, though she acknowledged to federal agents that she did not believe she had a choice. The woman also told FBI agents that Robeson sold marijuana and prescription drugs out of his house, according to internal bureau documents. She reported that she suspected he was selling firearms as well. (The Intercept is not publishing these reports because they contain identifying information about alleged sex crime victims.)

Robeson’s career as a government cooperator appears to have coincided with his career as a criminal. In 1985, he testified that a member of a violent motorcycle gang with whom he had shared a jail cell confessed to him that he had “hit a girl on top of the head” before her body was found in a burned-out bar, which was allegedly set ablaze for insurance money. More recently, in the mid-2000s, Robeson helped police set up a Wisconsin farmer, who wanted to harm a romantic rival, in a murder-for-hire scheme.

Defense lawyers say the FBI used a nondisclosure agreement with Robeson — which they claim was never turned over as evidence in the Whitmer cases — to prevent Robeson from talking publicly about his work as an informant. As Special Agent Chambers reminded Robeson in their recorded meeting: “So when you get asked, ‘Why did you have to go to the FBI, blah, blah, blah, blah, blah?’ You don’t have to talk about what we’re talking about here.”

Federal agents were particularly troubled by messages Robeson had sent to Barry Croft Jr., a primary target in the investigation, that alluded to using violence against elected officials. Croft’s lawyer could use those messages to suggest that the kidnapping plot had been Robeson’s idea, not Croft’s, the agents feared.

“This is something that we’re all going to have to overcome,” Impola told Robeson, adding a few minutes later: “It quickly becomes, from a defense strategy, ‘Well, this was Robey’s idea from day one.’”

“I Let the FBI Know”

In the spring of 2020, as the United States grappled with a deadly coronavirus pandemic, Whitmer, a Democrat, issued a “stay home, stay safe” order in Michigan that barred “in-person work that is not necessary to sustain or protect life.” Covid-19 skeptics, along with many Republicans, were enraged. On April 17, Trump weighed in with a tweet: “LIBERATE MICHIGAN!”

Two weeks later, as many as 1,000 protesters attended a rally at the Michigan State Capitol in Lansing in what a state senator later described as a “dress rehearsal” for January 6. The so-called American Patriot Rally was organized by Ryan Kelly, a former Republican gubernatorial candidate in Michigan who was later sentenced to 60 days in prison for taking part in the attack on the U.S. Capitol.

Many of the protesters inside the Michigan Capitol were armed, including an FBI informant and former Army sergeant named Dan Chappel. The FBI had hired Chappel to infiltrate a ragtag group of gun enthusiasts he’d met through Facebook who called themselves the Wolverine Watchmen. “I let the FBI know that there was talks of storming the Capitol,” Chappel, known to the militia group as “Big Dan,” later testified.

About 10 members of the Wolverine Watchmen were with Chappel at the state Capitol, unaware that he was working for the FBI. Although he informed the FBI in advance that the Wolverine Watchmen planned to storm the Capitol that day, federal agents did not try to stop them, Chappel later testified. FBI agents knew the militia members had discussed the locations of police officers at the Capitol and how to start “the boogaloo,” code for a civil war. (A year after arrests were made in the Whitmer kidnapping plot, Michigan Attorney General Dana Nessel confirmed in a podcast interview that law enforcement perceived violence at the Capitol as a real threat. “There was a plan for mass execution that day,” Nessel said.)

The April rally in Lansing was so successful that the same organizers held another, on June 18, 2020. The protesters, including Chappel and other members of the Wolverine Watchmen, milled about outside the Capitol that day, showing off their firearms and military cosplay for the news cameras.

That’s where Chappel first met Adam Fox, who lived in the basement of a vacuum repair shop and liked to work out, smoke marijuana, and rant on social media. A stout man with a beard, Fox had already met Robeson, who was the Wisconsin chapter president of the Patriot Three Percenters militia and had started working for the FBI as an informant in October 2019, according to the bureau.

Robeson had come to the FBI’s attention in part through a secret program known as Operation Bronze Griffon — first revealed publicly in 2022 to Republican House investigators by a whistleblower who misspelled it as Bronze Griffin — through which Facebook provides user activity information to federal agents without a search warrant or subpoena. According to an FBI report obtained by The Intercept, agents received a Bronze Griffon lead on Robeson for posting “possibly violent rhetoric in support of the militia movement and the Boogaloo concept.” The FBI recruited Robeson to be an informant, and he told agents that he knew of fellow militia members who had spoken about attacking law enforcement officials.

Once on the FBI payroll, Robeson organized and led several militia planning meetings, including one in Dublin, Ohio, that Fox and Croft attended on June 6, 2020.

Chappel’s face-to-face meeting with Fox at the Michigan Capitol would bridge two federal investigations, known internally as Operation Cold Snap and Operation Kessel Run, and link two informants, Chappel and Robeson, each of whom was unaware that the other worked for the FBI.

Chappel’s face-to-face meeting with Fox would bridge two federal investigation and link two informants, Chappel and Robeson, each of whom was unaware that the other worked for the FBI.

The informants went to great lengths to position Fox as a leader. Robeson suggested that Fox launch a Michigan chapter of the Patriot Three Percenters. On June 21, 2020, just three days after Fox met Chappel, a third FBI informant, Jenny Plunk, created a private Facebook group called “Michigan Patriot III%ers.” (The FBI classifies Three Percenters as a domestic terrorism threat.)

The Facebook group’s first members were Plunk and Robeson, both on the FBI’s payroll, and Fox and his girlfriend, Amanda Keller. Plunk lived in Tennessee, where, according to her FBI cover story, she led a small militia. While Plunk and Robeson administered the Facebook group, Fox invited several Wolverine Watchmen and other gun enthusiasts to join, bringing the group’s membership roster to 28. Although the FBI’s informants had created the Facebook group for Fox, Robeson announced in a welcome message that Fox was the “C.O.” — a military acronym for “commanding officer.”

Robeson often spoke in the vernacular of a soldier. He never served in the military, but he was so gung-ho that he had obtained forged paperwork that made it appear he’d been a Marine, according to FBI reports. Using military lingo, Robeson posted an invitation to the new Facebook group for a weekend tactical training session in Cambria, Wisconsin, about 40 miles north of Madison.

More than 30 people attended that weekend event in July 2020, including Fox, his girlfriend, and a few members of the Wolverine Watchmen. At the time, Robeson was running scams related to a fake charity he called Race to Unite Races, whose mission was “to bridge the racial divide.” Internal FBI reports indicate that Robeson used proceeds from the fake charity to buy supplies to build a shooting range to train in close-quarters combat, known as a “kill house.”

Videos from the FBI files show the attendees shooting at targets in the kill house. Robeson, a firearm holstered at his side, can be seen giving directions. Chappel, who had combat experience in Iraq, also appears in several videos demonstrating tactics. FBI agents gave Chappel permission in advance to share combat tactics with the militia members, telling him: “You can do what’s on YouTube.”

In a group photo from the event, many attendees hold up rifles, offering the reluctant half-smiles of an awkward family picture. Robeson is off to the left, wearing flip-flops, American-flag swimming trunks, and a sleeveless T-shirt that hangs over his large belly. He’s holding up three fingers, the sign of the Three Percenters.

The events of that weekend were critical to the Justice Department’s case, as they appeared to show the men training for scenarios they’d encounter in their supposed attempt to kidnap Michigan’s governor. But by the time the FBI spoke to Robeson in December 2020, federal agents were deeply concerned that the fine details of that weekend might suggest entrapment.

“You’ve got a Wisconsin Patriot Three Percenter role-playing the kidnapping with Wolverine Watchman at the training you’ve set up, right?” Impola, the FBI agent, said to Robeson.

“It wasn’t just me,” Robeson said. “I set it up and —”

“These are things we need to discuss,” Chambers interrupted.

Impola told Robeson that the FBI’s case notes show that a Wisconsin agent was aware of the training, but that federal agents did not know that Robeson was the one who had organized it.

“I don’t want to put these words in your mouth, but the question is —” Impola said.

“Did I do it under FBI directive?” Robeson interrupted.

“Right,” Impola answered.

“No, it wasn’t just — What I’m saying is, it wasn’t me. It was Adam [Fox] that asked if they could do that —”

“Yup,” the two FBI agents said in unison.

“It was Barry [Croft] who asked if we could get a joint one together. It was Illinois. And I asked before I said yes.”

“The question becomes: Did a bunch of terrorists Shanghai your training for their purposes, or did you set up a training for terrorists?” Impola asked. “That’s the question, right? There’s a training that happened in which a terrorist operation was planned and played out, and you’re involved in setting it up.”

“I Need to Come Play With Y’all”

Robeson’s organizing and financing of the weekend training in Wisconsin wasn’t the FBI’s only problem.

In multiple videos from the training, Robeson can be seen using firearms. As a felon, he wasn’t allowed to have guns. But FBI agents apparently believed that handling firearms would be critical to his credibility among the militia members, so they had asked the Justice Department for a waiver to let Robeson handle “nonfunctional” weapons in his undercover capacity, according to internal emails.

The Justice Department said no, reminding Robeson’s handlers that he was prohibited from handling even an inoperable firearm. “Just the receiver satisfies the federal definition of a firearm,” Assistant U.S. Attorney Rita Rumbelow told the FBI in a May 21, 2020, email, referring to the tube that houses the firearm’s bolt.

Internal FBI records show that Robeson and his handlers found creative ways to get around the Justice Department’s directive. One month after the Wisconsin training event, the FBI assigned Robeson a new handler, Corey Baumgardner, an agent in Wisconsin. Baumgardner later testified that he collected a firearm from Robeson: an AR-15-style rifle with an illegal suppressor and a launcher attachment. Instead of handing the firearm to the agent, Robeson left it on the ground in front of his truck. Baumgardner collected the gun, without having to see Robeson handle it.

The gambit appeared to allow Robeson and the FBI to have it both ways: Robeson could have access to guns, maintaining his credibility with the militia members, and FBI agents wouldn’t directly see him handle firearms.

Federal agents went to great lengths to maintain this sleight of hand. As part of the sting, the FBI in early August 2020 went to Delaware, where Robeson and Plunk met with a group that included Croft, a truck driver Robeson started messaging online in 2019 about targeting politicians for violence, and Frank Butler, a Navy veteran from Virginia.

Butler had been in contact online and in person with both Robeson and Chappel, and Chappel had discussed with him a fantastical plan to fly an explosives-laden drone into the Virginia governor’s North Carolina vacation home, though the plot went nowhere. Butler, who was never charged with a crime, later told investigators that Robeson and Chappel “were literally brainwashing me” and “weaponizing me.” (Prosecutors acknowledged in a court filing that Robeson had offered to provide money to “purchase weapons for attacks” and “the use of a drone, to aid in acts of domestic terrorism.”)

After their meeting in Delaware, Robeson had something for Croft. Baumgardner, the FBI agent in Wisconsin, had driven the AR-15-style rifle he’d collected next to Robeson’s truck more than 900 miles to Delaware. The rifle had originally belonged to Croft, and Robeson tried to give the weapon back to him. According to internal FBI reports, Croft refused to accept it, saying he couldn’t keep it at that moment. Plunk, the other FBI informant, took the illegal gun instead.

The following month, two undercover FBI agents and three FBI informants — Robeson, Chappel, and Plunk — gathered for another training event in Luther, Michigan, with around 26 others, including Croft from Delaware and Fox from Michigan. Plunk secretly recorded audio and video during the training event. In one recording, Robeson proclaimed that he was now the national leader of the Patriot Three Percenters militia and had appointed someone else to run his chapter in Wisconsin. “I’m no longer the state C.O.,” Robeson said. “I’m the national C.O.”

Also during this training event, on the afternoon of September 13, 2020, Plunk gave the rifle to Croft, who, in turn, handed it over to Chappel, according to FBI reports.

The story of the firearm only revealed the FBI’s heavy hand in the investigation.

FBI agents appeared to view the rifle with an illegal suppressor and attached launcher as a critical piece of evidence in their conspiracy case. But the story of the firearm only revealed the FBI’s heavy hand in the investigation. The illegal rifle made a full circle, from the FBI and back, through the hands of three paid informants, never staying long with any targets of the investigation.

The gun anecdote is emblematic of the larger sting: The FBI’s informants were ham-fistedly encouraging their targets to discuss plots to harm elected officials. Those efforts reached farcical levels on September 12, 2020, during a meeting and training exercises in Luther.

For that meeting, Chappel brought a friend nicknamed “Red,” a slender man with a 187th Airborne sleeve tattoo on his right arm. “Red” was in fact Timothy Bates, an undercover FBI agent who identifies himself in government recordings as “UCE 7775,” referring to his FBI undercover employee number. Just three weeks earlier, Bates had been in Denver, where he encouraged political violence. In Colorado, an FBI informant named Mickey Windecker introduced Bates to a racial justice activist who expressed interest in assassinating the state’s attorney general — a plot that, like the one targeting Virginia’s governor, ultimately fizzled.

Bates and Chappel, both Army veterans, led a close-quarters combat training for the Wolverine Watchmen. Bates also told the group gathered in Michigan that he could supply explosives. The group’s rough plan to kidnap Whitmer at her vacation home involved possibly blowing up a nearby bridge to slow rescue efforts.

“So my guy up in Minnesota, he can pretty much get whatever. He has access to whatever one would want,” Bates said in an undercover recording. Bates had brought along several videos showing men assembling and detonating homemade bombs. These videos were all stage-managed by the FBI, with agents pretending to be rogue bomb-makers.

One showed an SUV obliterated by a pipe bomb. “It’s a short video,” Bates told the group.

“Oh, yeah!” Robeson said, laughing approvingly at the explosion.

Bates explained that some of the bombs used C-4 inside pipes, with timing devices. Others used liquid explosives, he said.

“I need to come play with y’all,” Plunk said excitedly.

As he watched the video, Fox asked Bates: “What kind of price tag we looking at?”

“Depending on how big you want it,” Bates answered. “For that right there? That’s pretty cheap — 1,600 bucks, maybe. Maybe a thousand bucks.”

It wasn’t the first time Bates had offered bargain prices. In Colorado, Bates suggested he could hire a hitman for $500 to kill the state’s attorney general. In Michigan, he was offering explosives for pennies on the dollar.

That evening, Robeson, Chappel, Bates, and a few militia members drove near Whitmer’s vacation home. They inspected the bridge they’d bomb, tried to view Whitmer’s home from across the lake, and drove down her road. This apparent reconnaissance trip was central to the government’s case.

But true to form, Robeson mucked up the evidence. Fellow Wisconsinite Brian Higgins was the one who drove past Whitmer’s home — a seemingly incriminating act — but Higgins later told federal agents that Robeson had said they were hunting for sexual predators. In his December meeting with FBI agents, Robeson confirmed that Higgins was not initially aware of the kidnapping plot and instead believed they were out “hunting pedophiles.” But once he was in Michigan, Higgins learned that some of the attendees had a rough plan to kidnap Whitmer. Higgins drove down Whitmer’s road using a dash camera and provided the video to Chappel. After he returned to Wisconsin, Higgins claims he told Robeson he didn’t want to be involved in the plot.

The FBI’s own informant was telling a man he thought was the target of an investigation to destroy evidence.

Feeling guilty for tricking him, Robeson tried to protect Higgins from criminal exposure — a fact federal prosecutors admitted to in a court filing. Robeson called Chappel, still unaware that he was also an FBI informant, and told him to destroy his copy of Higgins’s dash-cam video. The FBI’s own informant was telling a man he thought was the target of an investigation to destroy evidence.

During the December 10, 2020, recorded interview with Robeson, Impola tried to coerce the informant into changing his story about what Higgins knew before the drive: “If you’re sticking with the story that [Higgins] was out there on a pedophile ring,” the FBI special agent said, “you’ll be his star witness in the defense. There’s zero options for that.”

“We Have One Chief”

When arrests and charges were announced in the Whitmer plot, the Justice Department portrayed Adam Fox as the leader. But FBI recordings suggest the informants were the ones in charge.

On October 7, 2020, as the government was making arrests in the case, Robeson, Chappel, and Plunk were on a recorded phone line talking about who should make future calls to action — in other words, who should be the leader.

“I mean, I’m good with Robey, because you’re the national guy, the president,” Chappel said, adding a minute later: “We have one chief.”

“We can definitely roll,” Robeson said. “That’s fine.”

The FBI arrested 13 people that day, and the foiled kidnapping plot made national news. (Higgins, the 14th defendant, was arrested a week later.) After the initial arrests, Robeson made a series of calls to Chappel; the girlfriend of one of the militia members; and others who orbited the supposed kidnapping plot. Robeson offered several outlandish claims, including that he believed Croft, a primary target of the investigation, had leaked information that caused the arrests. FBI reports indicate that Robeson again called Chappel, still unaware that he was also working for the FBI, and told him to throw the rifle with the illegal suppressor and attached launcher into a lake. Chappel, however, had already returned the gun to his bureau handlers.

During these calls, Robeson told fellow informant Plunk that he believed Chappel was an informant. Robeson appeared to be flailing after the arrests, pointing fingers to avoid being revealed as a government snitch.

His behavior in the immediate aftermath of the arrests was so concerning to FBI agents that federal and state prosecutors discussed charging him with witness tampering, according to emails that circulated among more than a dozen FBI agents the day after the kidnapping plot was announced. The bureau then began to investigate Robeson, internal records show. Agents reinterviewed the woman living in his garage, who claimed he had coerced her into having sex with him. That woman told the FBI that during the undercover sting, Robeson had an arsenal of weapons in his bedroom; that he was bringing in drugs from out of state; and that he had proposed taking her to rallies and training events in other parts of the country so she could make money, which she described to the FBI as “sex trafficking.”

For his part, Robeson appeared to realize that he had crossed the line from informant to participant in the kidnapping plot, putting himself in legal jeopardy. An internal FBI report said Robeson told another informant that he was worried he could be linked to “product,” by which he meant explosives.

“I Did This Trying to Keep My Undercover Position”

The Whitmer kidnapping plot has yielded five acquittals, five convictions, and four guilty pleas in federal and state courts. Robeson didn’t testify in any of the trials. When defense lawyers tried to compel him, he told the federal court that he would assert his Fifth Amendment right not to incriminate himself. The Justice Department claimed that Robeson was a “double agent” whose statements would not be “binding admissions of the government itself.”

The recording of Robeson’s December 2020 meeting with the FBI reveals that the “double agent” ploy was a carefully planned strategy. When Robeson was called into that Wisconsin FBI office, agents described three possible scenarios for him.

The first was that all the defendants would take plea deals, in which case “your name is not on the witness list,” Impola said. The second was that Robeson could be a government witness or, in the third option, a witness for the defendants whose testimony could support their claims of entrapment.

At the time, the agents errantly assumed that option one was the likeliest. “I am fairly confident that when anybody looks at that witness list, they’re not going to trial now because they know the ramifications,” said Impola.

But what he didn’t say was that the second and third options — involving Robeson testifying in court — weren’t real options at all, at least not in the view of the FBI. There was also a fourth option that the agents didn’t mention: The Justice Department could jam Robeson, a felon, with firearms charges for crimes he committed while working undercover for the FBI.

And that’s what happened. On March 3, 2021, the Justice Department indicted Robeson in Wisconsin on a charge of being a felon in possession of a firearm. Prosecutors alleged that Robeson bought a .50-caliber sniper rifle, among the most powerful firearms available to civilians in the United States, and later sold it on Facebook — all while working for the FBI.

At his plea hearing, Robeson claimed he’d bought the gun to bolster his FBI cover. “I did this trying to keep my undercover position where I was at and kind of make me look a little more aggressive in the organization,” Robeson said in court.

Robeson was sentenced to probation on a federal felony charge that could have carried a 10-year sentence. He and his handlers knew he had illegally possessed, purchased, and sold multiple firearms in the course of the sting; the single gun charge represented a threat of more to come if he were to testify in any of the state or federal prosecutions.

With that threat, FBI agents stopped the facts from getting in the way of their “good story” about the Whitmer kidnapping plot. In their zeal to protect a career-making case, those federal agents also poured jet fuel on conspiracy theories about the “deep state” and the January 6 Capitol riot that will be central to this year’s presidential election.

The post The Informant at the Heart of the Gretchen Whitmer Kidnapping Plot Was a Liability. So Federal Agents Shut Him Up. appeared first on The Intercept.

In 82 percent of the 719 January 6-related cases that have been resolved, and in which the defendants have either pleaded guilty or been convicted, judges have issued lighter sentences than federal prosecutors requested, the analysis of Justice Department data through December 4, 2023, shows. They imposed the same sentences sought by prosecutors in just 95 cases and harsher sentences in only 37.

Nearly every one of the 24 federal judges handling the massive docket of January 6 cases has shown leniency toward the defendants, regardless of whether the judges were appointed by Democratic or Republican presidents, the data shows. Perhaps the most surprising finding is that the judges appointed by President Joe Biden have been slightly more lenient than those appointed by former President Donald Trump. Biden appointees issued lighter sentences than prosecutors sought for January 6 defendants in 24 of the 26 cases they handled, or 92 percent, effectively tying with George W. Bush appointees as the most lenient. Judges appointed by Trump, meanwhile, have issued more lenient sentences in 90 percent of their cases.

Trump and his allies have repeatedly claimed that the federal judicial system has been unnecessarily punitive in its treatment of January 6 defendants, complaining that they are “political prisoners” who have been unfairly persecuted for trying to prevent the congressional certification of Biden’s 2020 election. One leading January 6 defendant compared himself to a Jew living in Nazi Germany and said that his “only crime is opposing those who are destroying our country.”

The Intercept’s analysis sharply contradicts that right-wing narrative. In many cases, judges have rejected prosecutors’ requests for prison time, often reducing defendants’ sentences to home detention or probation. Defendants have been sentenced to standard prison terms in only 429 out of 719 cases, or 60 percent. Another 31 defendants were sentenced to intermittent incarceration, meaning they only had to serve time on nights or weekends. Home detention was given instead of prison in 101 cases, while defendants in 135 cases got probation.

“There is no evidence that the judges in these cases are handing out sentences that are excessive,” said Richard Painter, a law professor at the University of Minnesota and former chief White House ethics lawyer in the Bush administration. “I think this shows that the system is working.”

The Intercept’s analysis is the most comprehensive examination so far of how federal judges appointed by Republican and Democratic presidents ruled in January 6 cases that have reached a final resolution in the U.S. District Court for the District of Columbia, which is handling all the criminal cases stemming from the insurrection. Hundreds more cases are still in progress and will likely be assigned to the same group of judges. A total of 1,233 individuals have so far been charged in connection with the January 6 mob, according to a running tally compiled by the Associated Press.

The January 6 defendants have been charged with a wide range of crimes, including low-level violations like disorderly conduct and unlawful entry that would be forgettable if they were not committed with the aim of derailing the peaceful transfer of power. But the charges also include far more serious offenses, such as assaulting law enforcement officers and members of the media; theft; entering restricted areas with deadly weapons; disrupting Congress; and seditious conspiracy. About 140 police officers were assaulted as they tried to protect the Capitol and members of Congress, according to the Justice Department.

Judges have issued more lenient sentences than prosecutors recommended across the board. The Justice Department is now appealing some of them.

“This dispels the idea that [the January 6 defendants] are victims,” said William Banks, a law professor at Syracuse University, when The Intercept told him about the analysis.

Lisa Klem, a spokesperson for the U.S. District Court in Washington, D.C., declined to comment on the statistics.

The pro-Trump revisionist history surrounding the January 6 defendants is part of a larger effort to downplay the significance of the insurrection while perpetuating the lie that the 2020 election was stolen. The campaign to anoint the January 6 defendants as martyrs began soon after the uprising at the Capitol and quickly gained momentum. The following year, a former defendant sat in a phony jail cell in what amounted to a performance art installation created for attendees of the Conservative Political Action Conference, and last spring, a group of January 6 defendants singing “The Star-Spangled Banner” over a prison phone line became a hit on iTunes. Many January 6 defendants have sought to cash in on their fame and have raised millions of dollars from right-wing supporters, particularly through the Christian fundraising site GiveSendGo. Prosecutors have asked judges to impose fines to counter the flood of donations.

The right-wing support for January 6 defendants has continued even as many have apologized in court for their actions and blamed Trump for lying about the election results and inciting them to storm the Capitol. One recent study by Citizens for Responsibility and Ethics in Washington found that 174 January 6 defendants have said they believed they were doing Trump’s bidding.

Lawyers for Peter Schwartz, who threw a chair at police officers and attacked them with pepper spray, told the court that he was only following Trump’s directions. “There remain many grifters out there who remain free to continue propagating the ‘great lie’ that Trump won the election, Donald Trump being the most prominent,” they wrote in an April 2023 court filing. “Mr. Schwartz is not one of these individuals; he knows he was wrong.”

Trump and the MAGA right have ignored these statements of remorse and continue to treat the defendants as heroic figures. At a campaign event in Texas in November, the Republican front-runner described incarcerated January 6 offenders as “hostages, not prisoners.” Last June, Trump attended a fundraiser for January 6 defendants, calling them “great people” who have “been made to pay a price.” 

J. Michael Luttig, a former judge on the U.S. Court of Appeals for the 4th Circuit, said that the pro-Trump attacks on the judicial process in the January 6 cases are deeply damaging to the nation. “The American people, as well as the courts, must understand that the former president will continue these disgraceful, condemnable attacks on our institutions of law and democracy until he has succeeded in delegitimizing them in the eyes of a sufficient number of Americans that not only will they not accept the justice system’s verdicts against him, but they will return him to The White House in 2024 precisely because of those verdicts.”

Federal sentencing guidelines establish a range for each crime, but the Supreme Court ruled in 2005 that sentencing guidelines are not mandatory. Federal judges must consider the guidelines, but they are not required to follow them. Prosecutors usually make recommendations in criminal cases, often reflecting the guidelines, while defense attorneys tend to propose lower sentences. But judges can ignore both recommendations.

The judges handling the January 6 cases have taken advantage of the leeway they are granted under the law to largely ignore prosecutors’ sentencing recommendations. Luttig, who was appointed to the federal bench by President George H.W. Bush, said he always had confidence that judges handling the January 6 cases were not persecuting the defendants as Trump and his supporters had alleged, and were instead following normal and consistent sentencing patterns. He said he was not surprised “by the fact that the judges appear to have sentenced this group of defendants to lesser terms of imprisonment than was generally recommended by the prosecutors,” nor that “the party affiliation of the president appointing the judges” was not “a variable” in their sentencing patterns.

“This is as it should be,” Luttig said.

Obama appointees have handled the most January 6 cases, and they, too, have issued more lenient sentences than prosecutors sought in the vast majority. They have presided over 337 cases that have been resolved and have issued more lenient sentences than prosecutors sought in 281 of them, or just over 83 percent.

Judge Tanya Chutkan — who is presiding over Trump’s own federal trial on charges stemming from his efforts to overturn the 2020 election, and who Trump and his supporters have accused of being out to get the former president — has actually been lenient in many of the other January 6 cases she has handled. She has issued sentences lighter than prosecutors sought in almost exactly half — 19 out of 39 — of her January 6 cases. Those statistics contradict a media narrative promoted by the MAGA right that Chutkan, an Obama appointee, has meted out unusually harsh sentences in cases related to the Capitol riot and that she may be exceptionally tough on Trump as well.

Judges appointed by Trump have issued lesser sentences than prosecutors wanted at only a slightly higher rate than Obama appointees. Out of 173 cases, Trump appointees gave lighter sentences than the government requested in 156. Trump appointees agreed to the sentences recommended by prosecutors in 16 cases, while issuing a harsher sentence in one.

By contrast, judges appointed by President Bill Clinton have meted out the harshest sentences, yet they have still been more lenient than prosecutors recommended slightly more than half the time. George W. Bush appointed judges have issued lesser sentences than prosecutors sought in 50 out of 54 cases, or 92 percent, while judges appointed by Ronald Reagan issued more lenient sentences in 42 out of 68 cases, or 61 percent. 

Judges handling the January 6 cases have been relatively lenient even when sentencing the most prominent defendants charged with the most serious crimes. Some leaders of militant groups were convicted of seditious conspiracy — plotting to use force to keep Trump in power — and received long sentences, but those penalties were still significantly lighter than what prosecutors had recommended.

Stewart Rhodes, the leader of the Oath Keepers, was convicted of seditious conspiracy and sentenced to 18 years in prison by Judge Amit Mehta, an Obama appointee. That struck many as a long sentence for the 58-year-old graduate of Yale Law School, but it was seven years less than prosecutors recommended for a man the government says was one of the insurrection’s key leaders. Mehta imposed the lesser sentence despite finding that Rhodes’s actions constituted terrorism, which calls for longer sentences under federal guidelines. The Justice Department has appealed the sentence, along with those of other Oath Keepers who received much lighter sentences than prosecutors recommended.

When it came time to mete out punishment for Kelly Meggs, the leader of the Oath Keepers Florida chapter who joined other members of the group to march up the steps of the U.S. Capitol in a “stack” formation to storm the building, Mehta issued a sentence of 188 months in prison; prosecutors had sought a 252-month sentence. Prosecutors asked that Oath Keepers member Roberto Minuta — a tattoo shop owner in Newburgh, New York, who was also convicted of seditious conspiracy — serve 204 months in prison, but Mehta sentenced him to just 54 months. On his way to Washington, Minuta filmed a video of himself warning that “millions will die” in a looming civil war; just before the Capitol riot began, he and Meggs were part of a security detail for Trump adviser Roger Stone.

Enrique Tarrio, the Proud Boys leader convicted of seditious conspiracy, was sentenced to 22 years in prison by Judge Timothy Kelly, a Trump appointee. Tarrio’s is the longest sentence given to any January 6 defendant so far, but it was still much shorter than the 33 years that prosecutors had recommended. The Justice Department has indicated that it plans to appeal the sentences of Tarrio and four other Proud Boys.

Jacob Chansley stormed the U.S. Capitol shirtless, covered in face paint, and wearing a horned headdress. He became known as the “QAnon Shaman” and got all the way up to the Senate rostrum, where he wrote a threatening note to Vice President Mike Pence, who was due to preside over the congressional certification of the presidential vote. “It’s only a matter of time,” the note read. “Justice is coming!”

Prosecutors described Chansley as “the public face of the Capitol riot” and asked that he be sentenced to 51 months in prison after he was convicted in 2021 of obstructing an official proceeding. Senior Judge Royce Lamberth, a Reagan appointee, sentenced him to 41 months, but Chansley was released after just 27 months. In July, Lamberth dismissed an effort by Chansley to get his conviction overturned, noting that new information obtained by prosecutors showed that Chansley may have been aware that a gallows had been erected outside the Capitol when he wrote his threatening note to Pence — evidence that Lamberth said might have convinced him to issue a longer sentence.

Chansley is now gearing up to run for Congress, the institution he helped invade on January 6. As he launches his bid for a House seat in Arizona’s 8^th District, the 36-year-old says he may rebrand himself as “America’s shaman.” Just before Christmas, Chansley attended a conference of Turning Point USA, a major conservative group, in Phoenix and had his photo taken with Rep. Marjorie Taylor Greene, the right-wing House member from Georgia. Chansley wore the same costume he’d had on at the Capitol; Greene said she was honored to meet him.

The most lenient individual judge handling January 6 cases was not appointed by Trump or Biden, but by George W. Bush. Judge John Bates, now on “senior” or semi-retired status, issued sentences more lenient than prosecutors sought in all 28 of the January 6 cases he handled, often turning down requests for prison time and letting defendants walk free. 

Take the case of Abram Markofski, an active member of the Wisconsin National Guard when he stormed the Capitol. After Markofski agreed to plead guilty to one of four charges against him — parading, demonstrating, or picketing in a Capitol building — prosecutors asked for him to spend 14 days in jail; Bates gave him two years’ probation instead. Prosecutors sought a sentence of 30 days in jail for Thomas Fee, a retired New York firefighter who pleaded guilty to a parading charge that carried a sentence of up to six months in prison, but again Bates sentenced him to probation. Prosecutors sought seven months in jail for right-wing Florida pastor James Cusick; nine months for his son Casey Cusick; and seven months for David Lesperance, a member of Cusick’s congregation. Bates reduced their sentences to just 10 days each.

Bates has shown leniency toward even the most violent January 6 defendants on his docket. He sentenced Joseph Padilla, a former corrections officer from Tennessee who threw a flagpole that hit a police officer in the head, to 78 months in prison, less than half the 171-month sentence sought by prosecutors. Bates gave Padilla the lower sentence even after describing him as “one of the most aggressive rioters” on January 6.

“The judge was fair, I have to admit,” Padilla’s wife wrote in September on GiveSendGo, the Christian fundraising website.

Bates was also lenient in the wild case of Nathan Pelham. The same day Pelham agreed to surrender on charges related to the Capitol riot, the Texas man was arrested for shooting a gun in the direction of law enforcement officers. The shooting happened in April, after an FBI agent called Pelham to inform him of the January 6 charges. Later that day, when a local sheriff’s deputy was sent to his home for a welfare check, Pelham fired in the deputy’s direction. Prosecutors wanted Pelham to spend six months in prison for his role in the insurrection, but Bates sentenced Pelham to just a $500 fine in the January 6 case. Separately, Pelham pleaded guilty to a charge of illegal possession of a firearm in connection with the shooting and was sentenced to two years in prison.

One Obama appointee has been nearly as lenient as Bates. Judge James Boasberg, the chief judge of the District Court in Washington, D.C., has issued sentences more lenient than prosecutors sought in 34 of the 37 cases he has handled.

William Cotton of Rhode Island was a low-level member of the mob that breached the U.S. Capitol, and he quickly cut a plea deal with the government. But prosecutors contended that he should still spend some time in jail because they said he showed no remorse for his actions. “Cotton does not view this case or his participation in the Jan. 6 riot as serious,” prosecutors wrote in a sentencing memo. “Put differently, Cotton does not take this case seriously because he does not expect this Court to take it seriously.” It appears that Cotton was right; while prosecutors sought a 21-day prison sentence, Boasberg gave him probation instead.

Boasberg also issued a lighter sentence than prosecutors sought in the case of a defendant involved in one of the riot’s most violent incidents. On January 6, Jonathan Munafo of Albany, New York, stole a police officer’s shield and repeatedly punched him, causing “the officer’s head to snap back,” prosecutors wrote in a statement. The government sought 37 months in prison, but Boasberg reduced the sentence to 33 months, despite the fact that Munafo had been arrested in another election-related case for making death threats to a Michigan 911 dispatcher in a series of deranged calls on January 5, 2021. Munafo, who reportedly spent much of 2020 following Trump around to campaign events, was separately sentenced to 24 months in prison on charges related to the death threats.

Judge Trevor McFadden, a Trump appointee, has also been extraordinarily lenient, issuing lighter sentences than prosecutors sought in 48 of the 50 January 6 cases he has handled, including cases involving some of the day’s most infamous incidents. Kevin Seefried of Delaware was photographed carrying a Confederate flag through the Capitol building, an image that went viral and captured the extremist, racist aspect of January 6. Seefried also confronted U.S. Capitol Police officer Eugene Goodman, a Black man, and threatened him with the flagpole. Seefried, the first rioter to encounter Goodman, cursed at the officer and chased him up a flight of stairs in a scene famously captured on video. Goodman testified that Seefried told him, “You can shoot me, man, but we’re coming in.” The flagpole with a Confederate flag on it, prosecutors noted, “was brandished by a man standing at the front of a volatile, growing mob towards a solitary, Black police officer.”

Goodman said that Seefried jabbed the flagpole in his direction several times while demanding to know “where are the members at, where are they counting votes?” Prosecutors recommended 70 months in prison for Seefried, but McFadden sentenced him to 36 months.

In the case of Geoffrey Sills, a Virginia man who stole a baton from a police officer and beat him with it, prosecutors sought 108 months in prison, but McFadden determined that he should only serve 52 months.

Chutkan, the judge handling Trump’s federal trial, has also issued more lenient sentences than prosecutors sought in cases involving January 6 defendants convicted of violent crimes. Matthew Capsel of Ottawa, Illinois, fought National Guard soldiers protecting the Capitol, charging a line of troops and ramming into their shields. Capsel — who filmed himself fighting the soldiers on TikTok and whose Facebook profile name was “Mateo Q Capsel,” suggesting he was an adherent of QAnon conspiracy theories — only stopped fighting after he was pepper-sprayed, prosecutors wrote in a statement. Capsel kept posting about January 6 afterward, writing that “on the 6^th good men had to do a bad thing.”

Capsel was charged with civil disorder and reached a plea deal with prosecutors, who recommended that he be sentenced to 31 months in prison. But Chutkan reduced that to 18 months, well below the 27 to 33-month sentencing guideline range for his offense, according to prosecutors, and not much more than the sentence proposed by Capsel’s defense lawyers.

Perhaps the toughest January 6 judge has only presided over a small handful of cases and thus has not had much impact on the overall figures. Judge Emmet Sullivan, a Clinton appointee now on senior status, has handled nine cases and issued sentences harsher than prosecutors sought in five, the same as prosecutors sought in two others, and more lenient sentences in only two. 

During the sentencing hearing in the cases of John Getsinger Jr. and Stacie Hargis-Getsinger, a married couple from South Carolina who joined the mob storming the Capitol, John sought to influence Sullivan by expressing regret and acknowledging that “we brought this on ourselves.”

Sullivan wasn’t buying it. Although prosecutors recommended just 45 days in jail for each, Sullivan gave them 60 days apiece.

Some January 6 defendants may soon find their sentences reduced or completely thrown out thanks to the U.S. Supreme Court. The court agreed in December to consider an appeal of one of the charges brought by the government in a large number of January 6 cases: obstruction of an official proceeding. A lower court judge ruled that federal prosecutors inappropriately used the law against January 6 defendants. That ruling was overturned by an appeals court, and now the Supreme Court has agreed to take up the case.

Obstruction of an official proceeding is the sole charge in 24 out of the 719 January 6 cases in which defendants have been convicted and sentenced, according to the Intercept’s analysis; in many other cases, it is one of several offenses of which defendants were found guilty. If the Supreme Court determines that the obstruction law was misused, the defendants who have only been convicted of obstruction could presumably have their records cleared.

As the cases of hundreds of January 6 defendants continue to work their way through the legal system, Trump’s own trial on charges stemming from January 6 and his efforts to overturn the election is looming in the same federal courthouse, an imposing white stone building on Constitution Avenue just a few blocks from the Capitol. Trump is facing a charge of obstructing an official proceeding, along with other charges, so a Supreme Court verdict could affect him as well.

But while Trump has repeatedly spoken out in support of the January 6 defendants, he’s trying to block special counsel Jack Smith from even mentioning the Capitol mob during his trial, which is scheduled to begin in March. In a recent court filing, Smith made clear that he plans to highlight the insurrection as the culmination of Trump’s illegal post-election efforts to remain in power. But Trump is now trying to distance himself from it. His lawyer has argued that any mention of the Capitol riot is “not relevant” to Trump’s case and would be “prejudicial and inflammatory.” 

The post Federal Judges Have Shown Leniency in Nearly All Jan. 6 Cases appeared first on The Intercept.

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Rat’s in the Trap

The day before Michael Beckcom was arrested for murder, a Texas Ranger spotted his red Ford Explorer parked in a small town not far from the Gulf Coast. On its tailpipe was a silver substance that looked like the remnants of melted duct tape. It was evidence that would link Beckcom to the grisly killing of a federal witness.

On June 4, 1996, Beckcom was jailed on a $10 million bond for his role in the slaying of George “Nick” Brueggen. Brueggen had been cooperating with federal authorities to build a fraud and tax evasion case against Beckcom and his associates, who fancied themselves a sort of South Texas Mafia. Beckcom and several others, including Mark Crawford, the former mayor of sleepy Ingleside, Texas, locked Brueggen in a large metal storage box. Using duct tape, they attached one end of a garden hose to the box and the other end to the tailpipe of Beckcom’s SUV. According to the Texas Rangers’ report, Beckcom then revved the engine, asphyxiating Brueggen.

Facing a capital murder charge, Beckcom cut a deal with prosecutors, becoming the government’s key witness against Crawford, the mastermind behind the murder.

Beckcom’s testimony was vivid. “Nick was kicking the box and making noise; he was panicking,” he testified in federal court, recalling one of his associates offering a pithy aside: “The rat’s in the trap.” When it was all over, his friends were eager to open the box, Beckcom said, while he “looked from the distance” as fumes wafted from its lid. Brueggen’s “eyes were open, and he had a blank stare. He was frozen there.”

Beckcom was critical to convicting Crawford, and while a federal district judge ultimately signed off on his plea deal, he also made clear that Beckcom had lied under oath. “The court believed you in part,” the judge said at Beckcom’s sentencing hearing. “But there were certainly areas where you gave false statements either to the investigating officers or your testimony on the witness stand was false.”

Despite the apparent perjury, Beckcom went on to play an equally crucial role in convicting Jeffrey Prible, who was sent to death row for the murder of his friends Steve Herrera and Nilda Tirado, along with their three kids. The family was found dead in their Houston home on April 24, 1999. Two years later, Prible was indicted for the killings while serving a five-year sentence at the federal correctional institution in Beaumont for a string of bank robberies.

There was no direct evidence tying Prible to the murders. Instead, Harris County prosecutor Kelly Siegler’s case was based on the thinnest of circumstantial evidence, which made Beckcom’s testimony indispensable even if his credibility was questionable: He was the only witness who could connect Prible to the crime.

Beckcom said that he and his cellmate, Nathan Foreman, had befriended Prible while imprisoned at Beaumont. One evening, according to Beckcom, the three men were sitting in a field on the rec yard when Prible confessed to the killings.

Once again, Beckcom’s testimony was cinematic. He described Prible as a modern-day ninja who boasted about his ability to carry out the murders undetected. “Anybody that can go in a house and take out a whole family and get out without being seen is a bad motherfucker,” Beckcom recalled Prible saying. “And I’m that motherfucker.”

The information Beckcom provided also sewed up the gaping holes in Siegler’s case. Prible lacked a motive — until Beckcom said he was angry with Herrera for hoarding cash from the bank robberies. Beckcom explained away the missing murder weapon by implying that Prible had buried it under some newly poured concrete. “Asphalt’s good sometimes for hiding things,” he said Prible told him. And he countered Prible’s alibi witness — a neighbor who saw Prible dropped off at home hours before the murders — by suggesting that Prible had snuck back into his friend’s house to kill the family.

In early 2017, Prible’s defense lawyers, James Rytting and Gretchen Scardino, sought Beckcom out to learn more about the deal he’d cut with Siegler. The first time he was scheduled to be deposed, Beckcom didn’t show up. Perhaps it shouldn’t have come as a surprise; when a defense investigator went to serve him with a subpoena, Beckcom was outwardly hostile to the notion of having to answer any questions.

The investigator persuaded Beckcom to meet him at a Starbucks outside a gated community in Florida. Beckcom rolled up on a Harley Davidson. Still fit, with his dark hair now graying around the temples, he was furious to learn about the subpoena. “If I have to,” the investigator recalled Beckcom saying, “I’ll kill the son-of-a-bitch lawyer and go back to prison, but I’m not going to get involved in this case anymore.”

The threat unnerved Scardino. She hired a retired federal marshal to sit outside the room when they finally got Beckcom in for his deposition. Scardino steadied her nerves as the questioning began, but it was Beckcom who broke the ice. Was he on anything that might impair his memory? Scardino asked. “Just age,” Beckcom joked.

For his role in the Crawford prosecution, Beckcom had been handsomely rewarded: just 11 years for a slaying that could have netted him the death penalty. Still, as he served his time at Beaumont, he hoped that his cooperation in the Prible case would swing the prison doors wide open. He expected as much from Siegler, he told Scardino. Instead, he got a year shaved off his sentence. Nearly two decades later, he was still vexed.

“You thought you’d be walking out the door?” Scardino asked.

“For a house full of bodies? Yeah,” he replied, crossing his arms. “Children? Sure.”

Still, Scardino could see why Beckcom made an effective witness; he remained unflappable and calm over more than five hours of questioning. He said he’d gotten Siegler’s name from Foreman but couldn’t recall how he knew that Prible was coming to the unit before he arrived. “Someone would have had to tell you that he was coming, right?” Scardino asked. “Yeah, I would assume so,” Beckcom replied. Nor could he recall whether Siegler had shared details about Prible’s case, like the problem of the alibi witness.

At some point, Beckcom said, he realized there were multiple men vying to inform on Prible, “like fricking 10 guys,” but “somehow I ended up with the information.”

“The details Jeff Prible gave me he gave completely and explicitly to me and Nathan Foreman one night,” he said. “He just rolled it out.”

At trial, Siegler had introduced a photo of Beckcom, Foreman, and Prible alongside their parents in the Beaumont visitation room. During his deposition, Beckcom acknowledged that the photo was staged to corroborate his story that the men were so close that Prible would confess. But while the photo was dated the same day as the alleged confession, it was taken hours earlier, before Prible had said anything. “You had nothing to corroborate yet,” Rytting said. “No,” Beckcom agreed.

Rytting asked Beckcom about the affidavit Foreman had provided in 2016, which characterized Beckcom as one of the men looking to sink Prible in exchange for a time cut. Foreman said that Prible never confessed in his presence, contrary to Beckcom’s trial testimony. “In fact, I never heard Prible say anything bad about the victims,” Foreman said. “When he talked about Herrera, he talked about him like he was a friend he had lost.”

“Wow,” Beckcom remarked. “I mean, it makes no sense. Why would he be trying to gather information and then say, ‘I didn’t get the information, no, that’s not true’? He either heard these things or he didn’t hear them, so he can’t have it both ways.”

“That’s correct,” Rytting replied. “And he states he didn’t hear them.”

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Underground Market

Kelly Siegler sat in a leather office chair, a bottle of Diet Coke in hand, staring down a videographer’s camera. Throughout more than nine hours of questioning, her expressions traversed a spectrum of impassive to dismissive to haughty as she repeatedly denied doing anything wrong.

In her decades at the Harris County District Attorney’s Office, Siegler had been the one asking questions. Now, during a sworn deposition in October 2017, Prible’s lawyers had the chance to confront her about the measures she took to convict their client.

It was a significant turn of events for the hot shot prosecutor-turned-reality TV star, but not unprecedented. A few years earlier, she’d spent five bruising days on the witness stand answering questions about her prosecution of David Temple, the high school football coach sentenced to life in prison for murdering his pregnant wife, Belinda. Temple’s conviction, based on circumstantial evidence, was Siegler’s final cold case victory at the DA’s office. Months later, in the wake of her failed campaign to become the next DA, she resigned.

More than just a personal defeat, Siegler’s election loss signaled the start of Harris County’s ongoing shift away from the lock-them-all-up politics of her mentors. And while it ultimately fed the narrative of Siegler’s phoenix-like ascent to a larger stage, the loss also seemed to animate her with the notion that subsequent allegations of prosecutorial misconduct were some sort of political payback.

In challenging his conviction, Temple argued that Siegler had withheld a raft of records from the defense, including those related to an alternate suspect. Confronted with the alleged improprieties in court, Siegler was pugnacious. She was only required to turn over evidence related to “truly, truly” alternate suspects, she said, not “ridiculous” information that came from sources she deemed “kooky.”

She intimated that the questions swirling around Temple’s conviction were all thanks to her opponent in the DA’s race years earlier, whom Siegler claimed had made a deal with Temple’s trial attorney to reopen the case, presumably as part of a plot to besmirch her reputation.

Siegler’s testimony did not sit well with the district court, which concluded that her actions had deprived Temple of a fair trial. The notoriously conservative Texas Court of Criminal Appeals agreed, vacating the conviction. While Temple would eventually be retried and convicted, the public rebuke was still fresh when Siegler sat down to answer questions about the Prible case.

Siegler insisted that the lawyers’ petition challenging Prible’s conviction was full of lies.

Can you name one of the allegations that “stands out as being false?” Rytting asked.

“Well, the overarching lie is that I orchestrated a ring of informants from the Beaumont federal prison,” she said. “That is a lie … that you made up.”

Siegler also denied hiding anything from Prible’s lawyers at trial. All the evidence the state had developed was in a file that was open to the defense, she said, including any notes.

It was an odd position given that federal District Judge Keith Ellison had only recently unearthed notes from Siegler’s files documenting her meetings with Nathan Foreman, who positioned himself early on as an informant against Prible and was later described as the ringleader of the Beaumont snitches. The notes also showed that she had consulted a forensic expert who undermined her assertion at trial that the sperm found in Nilda Tirado’s mouth could only have been deposited moments before she was shot.

Siegler’s colleagues, meanwhile, had different takes on her willingness to turn over evidence. “Kelly didn’t give up anything she didn’t have to,” Johnny Bonds, the DA investigator who went on to become Siegler’s “Cold Justice” co-star, said in a deposition. Vic Wisner, her co-counsel on the Prible case, said the DA’s office “always had an open file policy unless there was some extraordinary need not to,” but that it didn’t include notes.

There were other contradictions. Siegler denied that Beckcom played a “vital role” at Prible’s trial, even though that was the precise language she used to describe his participation. In a Rule 35 letter, Siegler had implored the federal prosecutor who handled the Brueggen murder case to advocate for a time cut for Beckcom. The prosecutor was reluctant; Beckcom’s plea deal was generous, he told Siegler. But her case “involved the vicious murder of FIVE people,” she wrote in a second letter. And Beckcom had “played a vital role in obtaining a conviction.”

Siegler conceded at her deposition that she and Bonds first met with Foreman to discuss Prible’s case in August 2001, long before the casual rec yard encounter presented at trial. Foreman offered dubious details of Prible’s alleged crime, which Siegler and Bonds memorialized on several sheets of lined paper. Still, Siegler insisted that Foreman played no role in the case, becoming increasingly hostile each time his name was brought up. “Mr. Foreman was not involved in Jeffrey Prible’s case,” she told the lawyers. “I know you want him to be, but he was not.”

Siegler claimed, for the first time, that she and Bonds left the meeting convinced that Foreman was not credible. “We walked out of there saying we didn’t believe a word he had to say.” This echoed what Bonds said in his deposition; as he recalled, Foreman could not even describe what Prible looked like. Siegler did not explain why she continued to meet with Foreman, who introduced her to his cellmate, Beckcom, the man she decided was credible enough to put on the witness stand.

As it turns out, Siegler had been talking about Prible with a Beaumont informant even earlier than her notes reflected. At the deposition, she revealed that in July 2001 she had discussed Prible’s case with Jesse Moreno, the informant who gave her Foreman’s name and later served as her star witness against Hermilo Herrero. The admission suggested it was Siegler who set in motion the high-stakes competition to inform on Prible. And all of it started before Prible had even been charged with murder or transferred to the unit where the snitch ring operated.

There was also the matter of the letters Siegler had received from three other men at Beaumont volunteering accounts of Prible’s jailhouse confession. Like Siegler’s notes, the letters were only disclosed via judicial intervention years after Prible’s trial. They would never have come to light without Carl Walker, one of the would-be informants who withdrew from the scheme after a crisis of conscience and prompted the lawyers to seek a review of Siegler’s records. Nevertheless, Siegler said that the letters would also have been in her “open” file.

She dismissed their significance, seemingly unfazed by the idea that so many people angling to inform on Prible might cast doubt on any confession narrative coming out of Beaumont. “Federal inmates audition for any role … on any case they can think of with any information they might hear to try to get a time cut,” she said. “That’s what federal inmates do all day long 24 hours a day.”

“So you knew that they were doing this before Mr. Prible’s trial?” Scardino asked.

“I’m not stupid,” Siegler replied.

Rytting questioned whether Siegler had engaged with the Beaumont informants in an effort to gin up evidence. Siegler was having none of it. “Your witnesses’ affidavits were lies,” she stated. “You have not one shred or iota or piece of credible evidence from a credible witness that supports any of these allegations.”

“And these are the type of witnesses that you used to put people on death row?” Rytting asked.

“I’m calling you a liar, sir,” she replied.

“And I’m calling you one.”

3

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A Mark

In 2018, Scardino and Rytting filed an amended petition in federal court challenging Prible’s conviction. “For over 15 years, the state has denied any conspiracy to frame Prible for the murders of the Herrera/Tirado family through the use of false jailhouse informant testimony,” it began. “Now, lead prosecutor Kelly Siegler’s own handwritten notes … confirm that this was in fact the case.”

“Prible’s trial was a master class in obfuscation by omission,” the lawyers wrote. Had jurors been privy to the extent of Siegler’s interactions with the Beaumont informants, they would have seen the state’s case for what it was. “The jury would have figured out that the whole thing was a set-up.”

A year later, Ellison granted their request for a hearing to consider the evidence. For so long, Prible’s suspicions about the Beaumont informants had been dismissed as paranoid speculation. Now a federal judge was giving them a chance to prove their case. “We knew we had a story to tell,” Scardino said.

A few days before the evidentiary hearing was scheduled to begin in downtown Houston, Ellison convened a conference call with the lawyers for each side. The topic: Kelly Siegler.

“I am concerned with the fact that Ms. Siegler seems to be unavailable,” he said.

For months, Scardino and Rytting had been trying to serve Siegler with a subpoena to appear at the hearing. They tried her at her office and at home. She never responded.

Tina Miranda, the Texas assistant attorney general tasked with defending Prible’s conviction, spoke up: Siegler had contacted her to say that she “travels a lot for her taping of her show” and would be unavailable. The judge was irritated. “That’s the kind of thing that a witness avoiding appearing would say,” Ellison said. “I really would have expected much more from an officer of the court.”

On the morning of the hearing, Prible sat in a high-backed chair in Ellison’s courtroom. He turned to smile at his family, which was out in force. His three grown children were there, along with his mother, sister, and other relatives. Scardino had two witnesses waiting to testify: Nathan Foreman and Carl Walker. The judge assumed the bench at 10 a.m. There was just one problem. “Has anybody heard from Ms. Siegler?” Ellison asked.

Miranda had: Siegler was still out of town. “I wish she would cover this case on her TV show and explain to the nation why she couldn’t be present,” Ellison quipped. The hearing would start without her.

Scardino launched into Prible’s case. Prosecutors had declined to indict anyone for the Herrera and Tirado murders based on the limited evidence collected by the summer of 1999, she said. Yet, without uncovering anything new, Siegler asked a grand jury to indict Prible two years later. By the time she took the case to trial, there was only one additional element: Michael Beckcom.

To believe Beckcom’s story about Prible’s confession, Scardino told the judge, you’d have to place faith in Foreman, whom Beckcom said was by his side when Prible owned up to the crime. Siegler had met with Foreman at least twice in connection with Prible’s case, although she failed to inform the defense. Despite this, Siegler claimed Foreman was irrelevant and untrustworthy.

Siegler’s files showed that she’d heard from at least five men at Beaumont jockeying for informant status in the hopes of securing time cuts, which should have raised red flags. Yet Siegler simply buried the communications.

The “sordid backstory” of the prosecutor and the informants would never have come to light, Scardino said, if “one of the informants that Siegler decided not to use,” Carl Walker, hadn’t come forward and “spilled the beans on the ring of snitches.”

“There’s only one reason she would avoid being here in person today to clear her name,” Scardino said. “That is because her name can’t be cleared.”

Miranda conceded that “at face value,” it was “disturbing” that so many people were trying to snitch on Prible, but she said there was no proof that Siegler put them up to it or even understood what was going on.

The judge seemed skeptical of Miranda’s take. “What was the alternative thesis?” he asked. “Why would these inmates become so enthusiastic about trying to pin a capital crime on Mr. Prible?”

That’s just what they do, Miranda responded. If that were the case, Ellison said, “Wouldn’t that cause a seasoned prosecutor to be especially wary about this kind of evidence?”

Miranda insisted that Siegler was attuned to the problem. After all, she only put Beckcom on the stand as a witness against Prible — not the four others who also supposedly heard him confess.

After being released from Beaumont, Foreman had landed in legal trouble again with a conviction for aggravated kidnapping and robbery. When he took the stand at the evidentiary hearing, he was out on bond as his case made its way through the appeals process. Although he’d played an outsize role behind bars in the scheme to snitch on Prible, in court Foreman was almost timid; he spoke so quietly that the court reporter asked him to pull the microphone closer.

At Beaumont, Foreman had every incentive to offer up incriminating information about his neighbors, true or not. Now he was facing 50 years in state prison — the rest of his life — and no amount of self-dealing would change the sentence.

Foreman testified that he’d first heard the names Kelly Siegler and Jeffrey Prible from Jesse Moreno, the informant who met with Siegler about Prible’s case and became her star witness against Hermilo Herrero. It was Herrero who first alerted Prible that the same band of informants was behind their convictions. Two months before Prible’s trial started, Siegler traveled to Louisiana to testify in favor of a drastic time cut for Moreno, whose sentence was reduced from 78 months in prison to just one.

While incarcerated in Beaumont, Foreman and Moreno both wound up in the Special Housing Unit, where Foreman was working as a janitor and orderly, delivering meals. It was there that Moreno told him about Prible — before Prible had even arrived. Moreno suggested that he reach out to Siegler about becoming an informant. Foreman testified that what he knew about Prible’s case came not only from Moreno, but also from Siegler, who told him that Prible’s DNA had been found in Tirado’s mouth.

Foreman said he never heard Prible confess to the murders of Herrera, Tirado, and their kids. And since he was eager for a time cut, he’d remember a confession. Beckcom’s statement at trial sounded scripted, he added. “All I could say is that he should have been a book writer or something.” When Rytting read aloud Beckcom’s line about Prible being trained in the Marines for “high-intensity, low-drag” maneuvers, Foreman laughed. “I’ve never heard that one,” he said. “It really sounds like he got it off television.”

The judge wanted to know if men at Beaumont regularly discussed the crimes they had committed. Wouldn’t that be risky business? “That is correct,” Foreman replied. People might talk about past crimes — if they were of little consequence — but never about pending charges and certainly not about murdering children. That could get you killed.

As Prible recalled, Foreman winked at him on his way out of the courtroom. Prible took it as a conciliatory gesture, as if to admit he’d done wrong but tried to make it right. “So he’s OK with me.”

In contrast to Foreman, Carl Walker had created a prosperous new life for himself after leaving federal prison, becoming a tech entrepreneur in Houston. He was, Scardino thought, the moral center of their case, sharing what he knew about the ring of informants even when doing so might have put him in jeopardy. “He struck me as someone who has a very clear understanding of right and wrong,” she said.

“He was going to be a scapegoat for several individuals to have an opportunity to get out of prison sooner than later.”

The courtroom was silent as Walker testified. He’d been recruited as one of a handful of snitches who would inform on Prible, he said, and was told details of the alleged offense before Prible was transferred to the prison unit.

“It was already mapped out” by the time Prible arrived, Walker said. Beckcom and Foreman were the ones corralling things on the inside, but there was clearly someone pulling the strings on the outside: “The details they knew … was so vivid or so in depth that, like I say, I knew before he got there, and they knew even more than I knew.”

“Was Mr. Prible a mark?” Rytting asked.

“In every sense of the word,” Walker replied. “He was going to be a scapegoat for several individuals to have an opportunity to get out of prison sooner than later.”

Did Walker know anyone else at Beaumont who was the target of a similar plot? Yes, Walker said: Hermilo Herrero. A bunch of guys who tried to get a piece of the Prible case had eyed Herrero as well. “Some of them were working on the twofer aspect.”

By the time Terry Gaiser appeared at the hearing, he had nearly 50 years of criminal defense experience in Harris County under his belt. Gaiser represented Prible at his 2002 trial. Back then, he told the court, what was shared with the defense was “what they put in the file.” The whole discovery process relied on a foundation of trust, and jailhouse informants were “fundamentally unreliable,” Gaiser said. Had he known Siegler was communicating with a network of men competing to inform on Prible, as the undisclosed letters and meeting notes revealed, he could have used these items to dismantle the basis of the state’s case.

By the time the hearing convened again, arrangements had been made for Siegler to appear via video. It was a less-than-ideal setup. There were transmission delays, and Siegler was positioned so that part of her face was out of the frame, making it hard to read her expressions. At one point, the connection was lost altogether. “She do it intentionally?” Ellison asked. “Can we tell?”

Cheryl Peterson, Prible’s aunt, recalled this as the one moment Ellison seemed close to losing his cool. “He was so restrained,” she said. She had watched with growing disbelief as Siegler tested his patience in the run-up to the hearing. “Like, how the hell does she thumb her nose at a federal judge?”

Siegler was unapologetic about her failure to appear in court. Miranda hadn’t told her where to be or when, she said. And she claimed to have no idea that Prible’s team had repeatedly attempted to serve her with a subpoena.

Pressed about her failure to disclose her dealings with Foreman to Prible’s defense, Siegler again insisted that Foreman was not connected to the case. But he was her original snitch, Scardino said, and according to Beckcom, he was there when Prible confessed, which made him a corroborating witness even if he didn’t take the stand. “Because he’s standing there, it doesn’t mean he’s credible,” Siegler snapped. “It doesn’t mean he has information.”

Siegler seemed invested in painting Foreman as a liar, not just in their previous interactions, when he was angling for a time cut, but also at the hearing, when he was undermining the basis of her case against Prible. When Ellison suggested that Foreman’s testimony struck him as sincere, Siegler assured him she knew better. “Of all the inmates I’ve ever dealt with, he’s at the top of the list for not being credible.”

On cross-examination, Miranda pitched a series of softball questions: When Siegler got the case in 2001, there was already enough evidence to take it to trial, right? Was she even looking for an informant? “No, ma’am,” Siegler replied.

If her case was already solid, the judge asked, why did she use Beckcom at all? “There are five victims here,” Siegler said. While she believed her case was “strong enough for a jury to convict,” she worried that some of the jurors might not see it that way. “I wanted to be sure.”

Scardino pounced on Siegler’s statement as an admission that the case was too weak to prosecute without Beckcom. “Siegler didn’t just use Beckcom to testify that he heard a confession,” Scardino told the judge. She used his “highly scripted and choreographed” testimony to “explain away all of the problematic aspects of the state’s case.” Beckcom, she said, was Siegler’s case.

4

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Ethical Duties

A year after the evidentiary hearing, Ellison vacated Prible’s conviction. The prosecution had engaged in a “pattern of deceptive behavior and active concealment” that could have changed the outcome of Prible’s trial, he wrote. The evidence Siegler withheld revealed an “orchestrated effort by a ring of informants to fabricate a confession from Prible in return for sentence reductions.”

Ellison concluded that Beckcom had acted as an agent of the state in working with Siegler to elicit a confession from Prible, implicating the prosecution in a violation of Prible’s Sixth Amendment right to counsel.

And while the evidence did not prove that Siegler knew Beckcom was lying nor “completely” verify Prible’s argument that she was running a snitch scheme, Ellison nonetheless found that Siegler had hidden the full extent of her dealings with the informants and “was far from credible in her federal court testimony.”

“This court does not endorse the cavalier attitude Siegler has displayed regarding her constitutional duty to preserve the fundamental fairness of the trial proceedings,” Ellison wrote.

Scardino was elated. She felt confident that the judge would rule in their favor, but she didn’t anticipate how powerful the ruling would be. “It really vindicated Jeff,” she said.

News of the order came in the early months of the pandemic. “We were all just stumbling into one of our first of many covid lockdowns when I heard the news about Jeff’s reversal,” Thomas Whitaker, the incarcerated writer who investigated Prible’s case, wrote. “I remember standing at my door, paper in hand, arms raised in triumph.”

Prible’s sense of vindication was bittersweet. His father, who suffered bouts of depression over his son’s wrongful conviction, had died without seeing the legal victory. Prible’s own son, 27-year-old Ronald Jeffrey Prible III, whom he called “Little Jeff,” was struck by a train and killed six months after attending the evidentiary hearing. For Prible, who had seen hundreds of neighbors taken to the execution chamber, there was no court order that could restore what he had lost.

Still, he began to imagine a life outside prison walls. Peterson, his aunt, used to send him photos of the sunsets from her waterfront property on Lake Conroe, north of Houston. Prible dreamed of working the grounds and watching the sun go down over the water. From his colorless death row cell, the images of future sunsets sustained him. But just when it started to feel like freedom might be within reach, a whole new nightmare began.

Ellison ordered the state to retry or release Prible within six months. Instead, Texas balked at the ruling and asked the 5th U.S. Circuit Court of Appeals to overturn it.

According to Texas Assistant Solicitor General Ari Cuenin, the allegations of the snitch ring were “incoherent and unproven,” and federal law barred the judge from even allowing Prible’s lawyers to present them in court. In the state’s reading, any argument Prible wanted to pursue about the Beaumont informants should have been made by his state post-conviction attorney, Roland Moore, back in 2004. At the time, Prible was only aware that a Black man named Walker might have some information about how he was framed for a crime he didn’t commit.

To Rytting and Scardino, this was absurd. Prible had no proof precisely because Siegler failed to disclose evidence of her communication with the Beaumont informants. After all, the state knew where the elusive Carl Walker was all along: His full name and inmate number were included on the letter he’d signed, which was sequestered in Siegler’s file.

It was the state’s actions that prevented Prible from raising the claims earlier, the lawyers maintained. If Prible’s trial attorneys had known there was a band of informants scheming to set him up — and that Siegler deemed Foreman unreliable, even as Beckcom testified that Foreman could corroborate his account of Prible’s confession — then they could have gutted Beckcom’s testimony, leaving Siegler’s otherwise circumstantial case in tatters.

In late 2021, the lawyers for each side traveled from Texas to New Orleans, where the 5th Circuit is based, for oral arguments. Presiding over the panel was Judge James Dennis. Now 87 and on senior status, he is one of a handful of judges appointed by a Democratic president left on the ultra-conservative court. Dennis, participating remotely amid the pandemic, asked no questions of either side; all queries would come from a pair of Republican-appointed judges who appeared to see the case in radically different terms.

A former Texas assistant solicitor general and Trump appointee known for his far-right views, Judge Kyle Duncan leaned into Cuenin’s position that Prible should have raised the informant issues years earlier. Duncan asked whether the defense had sent anyone to Beaumont to look for a man named Walker, prompting a long pause from Rytting: “That is not how the Bureau of Prisons works,” he said. “What, the investigator goes in and says, ‘You got a guy named Walker here?’”

Prible did what he could with the scant information available behind bars, Rytting said. But it all amounted to rumor and hunch, which was not enough to raise a concrete legal claim back in 2004.

Jennifer Elrod, who was a civil court judge in Houston before being appointed to the bench by George W. Bush, appeared to understand Prible’s dilemma.

She took issue with the state’s dismissal of Siegler’s note about the DNA, which Cuenin said had no bearing on the case given Prible had admitted to having sex with Tirado early on the morning of her murder. The note would have to say more than it did — “Pamela McInnis — semen lives up to 72 hours” — to be relevant to Prible’s defense, Cuenin argued.

“It is very relevant whether it happened on the edge of the killing or whether it happened several hours before,” Elrod said. At trial, Siegler asserted that the amount of semen on the swab proved that Prible had forced Tirado to perform oral sex moments before shooting her. The note showed that the director of a local crime lab she consulted would not have been willing to back up her argument. “That matters tremendously in inflaming the jury and … whether you get the death penalty because you’re such a monster that you have sex and then have just an overwhelming desire to kill,” Elrod said. “And that was ginned up to be very relevant.”

“Do we have any ethical duties if we believe that there’s unethical conduct?” Elrod asked Cuenin as the arguments came to a close.

“As lawyers we all have ethical duties,” he replied.

“I’m just wondering, has that been handled?” she pressed. “We don’t have any duty to report anything we learn in this case to the bar?”

“That’s not a part of this case,” Cuenin said.

Peterson remembers feeling encouraged by Elrod’s line of questioning. She was optimistic that the court might rule in Prible’s favor. Instead, nine months later, a unanimous panel ruled in favor of Texas, reinstating Prible’s death sentence. “That was devastating,” she said. “After that, we didn’t have much hope.”

Scardino and Rytting were dismayed. Elrod had expressed concern about unethical conduct on the part of the state. For her to join Duncan’s majority opinion, which fully embraced the state’s position, was confounding. The judges did not address whether Siegler had withheld evidence critical to Prible’s defense, ruling only that the lawyers had raised the claim too late.

“Jeff was gaslighted for years,” by Siegler, by the courts, by the attorney general’s office, Scardino said, “all of whom were saying, ‘This guy is delusional, this conspiracy is all a figment of his imagination.’” And once he was finally able to prove it, “the 5th Circuit says, ‘Too bad, it’s too late, he should’ve figured it out years earlier.’”

The lawyers asked the full court to reconsider the panel’s ruling, and when it declined, they asked the U.S. Supreme Court to intervene. In June, it too declined to get involved.

5

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Truth Will Come Out

If Siegler was paying attention to Prible’s case as it made its way through the courts, there was no sign of it on her Twitter feed. As Prible’s fate hung in the balance at the Supreme Court, Siegler posted a landscape photo taken from an airplane. “Hello America! First case, Season 7 we start working tomorrow,” she wrote. ““Wish us luck!”

The new season of “Cold Justice” is set to air next year. In the meantime, Siegler is promoting the inaugural season of “Prosecuting Evil.” At CrimeCon in Orlando, she was welcomed with uproarious cheers and a standing ovation. “When you’re not here you’re so missed,” said the Oxygen correspondent who introduced Siegler. “When you’re back here it feels like a reunion.”

Siegler took the stage with the showrunner from “Cold Justice” and the executive producer of “Prosecuting Evil.” They teased the new show’s premiere with a clip revisiting Siegler’s most notorious moment: straddling her colleague on a bloody mattress to reenact a defendant stabbing her husband to death.

“I can truly say that probably is what led to all this,” Siegler said of the bed stunt. It was the point where her real life as a hard-driving prosecutor produced the parallel life she would later inhabit, turning her into a reality TV star. There were members of the legal community who thought she went too far, she told the audience, but that didn’t bother her. “I care more about what people like you think.”

Asked about the advice she would give someone “passionate about a career in the legal system,” Siegler said it was all about ethics. “Every decision you make comes back to your own integrity.” From filing charges to “every time you talk to a witness,” she said, you’re “always really, really” trying to do the right thing. “And you don’t let your damn ego get in the way. And you don’t worry about winning or losing the trial, you just do what’s right. It’ll keep your reputation always intact.”

Five episodes in, “Prosecuting Evil” appears to be about fortifying Siegler’s reputation and ensuring her legacy as a prosecutor who pulled no punches in the pursuit of justice. The show prominently features the families of homicide victims, who show deep gratitude for the work done on behalf of their loved ones. In the episodes focused on her old cases, Siegler is more defiant than reflective, reveling in court victories and evincing scorn for defendants, defense attorneys, and attempts to overturn her convictions. “That’s inflammatory and that’s over the top and that’s grandstanding,” she said in the premiere, mocking her critics. “Gimme a break.”

To Prible’s supporters, Siegler’s continued celebrity is less disturbing than the lack of accountability she’s faced. Ward Larkin, the anti-death-penalty activist, has made it a point never to watch “Cold Justice.” “It’s obvious she’s extremely intelligent,” he said. “But she’s also a horrible person. … She has no compunction about the horrors she inflicts on people.”

Hermilo Herrero is now in his 50s. Despite Rytting’s efforts on his behalf, his appeals have been denied. He continues to insist on his innocence for the murder of Albert Guajardo in 1995. “Albert was a friend and never my enemy and I have been living with that lie they made up,” he wrote in a letter to The Intercept. He blames Siegler for her drive to win at all costs, even if it meant sending innocent people to die in prison and “stealing the justice from the victims or the victim’s families that they so much need and deserve.”

“It is not just Herrero and myself where the only evidence presented against us is a jailhouse snitch who says that we confessed to them,” Prible wrote in an open letter after his conviction was vacated. “There are others. … The truth will come out. It has already started.”

If the state wanted to reinvestigate Prible’s case, there are some obvious places to start. A man named Philip Brody shared recollections with The Intercept that could have been critical to law enforcement had there been a thorough investigation two decades ago. Brody was friends with both Prible and Steve Herrera in the years leading up to Herrera’s death. Some six months before the killings, Brody said, Herrera told him about a man in the “drug game” who owed him money. The man had been arrested before paying Herrera back. So “we took my truck and emptied out everything in his whole house,” Brody recalled. Then Herrera sold the man’s belongings.

The man was just one person who had a motive to kill Herrera. But there were others, Brody said. Shortly after that incident, Herrera asked Brody to do something that “kind of put the nail in the coffin for our friendship.” According to Brody, Herrera asked if he would be willing to arm himself with tactical gear and an assault weapon and break into a drug dealer’s house to steal money, drugs, and whatever else they could find. “And I was like, ‘Hell no.’”

To Brody, it seemed obvious that Herrera was making dangerous enemies. He believes this is what got him killed in the end. Murdering an entire family was something members of a drug cartel would do. Prible had children of his own. “I couldn’t see Jeff doing that to the innocent kids, you know?”

It should also have been obvious to police that Herrera’s drug dealing likely played a part in the murders. Among the documents the state failed to turn over to Prible’s defense before trial was an anonymous letter that Herrera’s parents received days after their son’s murder. “OK Fuckheads this is not a cordial greeting,” it began, before demanding that the couple get rid of the “thieves and drug dealers” living in a rental property they owned. The letter threatened to burn down 11 properties the Herreras maintained as rentals if the alleged drug dealing continued. “This is your only warning!!!!” the letter concluded.

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The letter did not include the house where Herrera and Tirado lived. Still, the threats dovetailed with the circumstances surrounding the murders and appeared to offer a viable lead. But contemporaneous reports suggest police did nothing with the letter aside from putting it in a manila envelope and marking it as evidence.

It isn’t clear when Prible’s attorneys received a copy of the letter. When Gaiser, Prible’s trial attorney, was shown a copy during the 2019 evidentiary hearing, he testified that he’d never seen it. He said he would have used it as a jumping off point for his own investigation. “That was extremely relevant to whether there was another motive,” he testified.

Bill Watson, the state’s DNA analyst at trial, told The Intercept that he would testify differently if called to the stand today. He has more experience now, he said, and some of his answers sounded more “definitive” than they should have. As the state’s expert witness, he didn’t intend to endorse the theory that the DNA could only have been deposited at the time of Tirado’s death, but that’s how the state used his testimony. During his closing argument, Vic Wisner, Siegler’s co-counsel, told the jury that there was “no way in the world that semen wasn’t deposited either moments before or seconds after Nilda died.” Watson called that an “overstatement.” “‘No way in the world’ is not something I would’ve said.”

In a phone call with The Intercept, Johnny Bonds, the DA investigator turned “Cold Justice” star, defended Siegler, saying his longtime friend and colleague is one of the most “upstanding” people he’s met. Bonds said he was reassured when he learned that Prible’s death sentence had been reinstated. “I can’t imagine her doing anything like [what] she’s accused of.” Upon reflection, he believes Nathan Foreman was behind the allegations that fueled Prible’s litigation. Foreman was indignant that Bonds and Siegler wouldn’t let him on the “bandwagon” of informants against Prible, Bonds said. “He wanted something out of it, and when he didn’t get anything out of it, he said, ‘Well, I’ll show you.’”

Scardino, meanwhile, is hard at work on a new state court appeal. While the 5th Circuit ruled against Prible, it didn’t disturb the district judge’s findings that Prible had been denied a fair trial. Scardino plans to take those findings and the wealth of evidence backing them up to the Texas Court of Criminal Appeals. “I really do believe that in the end, the system will correct the colossal miscarriage of justice that has taken place,” she said.

Michael Beckcom has been out of prison for nearly two decades and lives a quiet life. He rides a motorcycle, plays in a band, and loves dogs. He still carries himself with confidence, though years of bodybuilding have left significant aches and pains.

He doesn’t like to talk about his time in prison or his turn as a snitch for Kelly Siegler. Working with her put him in danger behind bars, he said, netting him several years of solitary confinement, which was meant to keep him safe. Beckcom is still angry with Siegler. He expected that his testimony against Prible would spring him from prison. He was counting on that. And he needed to get home to take care of his daughter and aging mother.

It was Siegler who screwed him over, he said over a cup of coffee at Dunkin’ Donuts, but it was Foreman who “roped me” into the whole mess to begin with. Foreman was working with Siegler on the Herrero case, he recalled, when he pulled Beckcom in on the Prible case. Foreman then told Siegler that Beckcom was the one who “knew the whole story,” he said. “And it all came to fruition.” Foreman did not respond to The Intercept’s requests for an interview.

Beckcom acknowledged that his testimony against Prible might have sounded fishy. He understands that it was the only new piece of evidence Siegler turned up after taking over the cold case. But he insists that Prible confessed to him. At least that’s how he remembers it. “It is what it is from my perspective, and that’s the way it happened to me,” he said. “Anybody can take that, do with it what they want.”

“Your ass is in a jam because she’s going to get 12 people to say you did it.”

At the same time, he believed Siegler provided him with a road map to the information she needed to convict Prible. “She may give you, I’m not going to say evidence, but she can give you certain things that he wouldn’t have given you,” Beckcom said. “It’s all in the framing.” She would say something like, “‘Did he mention anything about such and such’ and then maybe give you an idea. If you had more than one brain cell kicking, you could figure it out what she was talking about.”

“This was her forte,” he added. Which is “not good if you’re on the fucking receiving end. Your ass is in a jam because she’s going to get 12 people to say you did it.”

When asked if it was possible that his story of Prible’s confession wasn’t all above board — that it was embellished with information Siegler provided — Beckcom said no. But he also demurred, saying maybe Prible was just telling stories to make himself look tough behind bars. “If everything he said was a fabrication to make him look like a gangster because he was in prison, then that’s on him,” Beckcom said. “He shouldn’t have said anything.”

Prible has never stopped talking about his case. In correspondence, he often writes at a frenzied pace, joking frequently, alluding to literature and music, and peppering his emails with exclamation points.

Prible makes no excuses for his past. “I did drugs and was involved in criminal activity! I was a womanizer! I am not like that anymore!” He maintains his innocence and adamantly denies ever confessing to Beckcom, “an obvious fake” who carried himself like an Italian mobster, saying “stupid shit” like he knew who killed Jimmy Hoffa. Prible said he only tolerated Beckcom because he was friendly with Foreman. “I did not want to say ‘your friend’s full of shit.’”

Prible rejects the notion that the state never considered any other suspects in the murders, as Siegler emphasized to his jury. “They just got rid of anything that was useful to my defense!” While he’s eager to discuss aspects of his case that he feels have not been sufficiently investigated, he’s just as anxious to convey the urgency of his circumstances. Living on death row for 21 years has been a “rollercoaster ride through hell.”

Prible’s mental health has ebbed and flowed over his decades at Polunsky. During one period, Larkin said, “he was having episodes, mental health episodes, where it would just paralyze him.” Prible asked Larkin to research the impact of long-term solitary confinement — “he was convinced that there was something to that.” He was right. Solitary confinement has been shown to be psychologically devastating. Many experts consider it torture. The research became a survival tool for Prible, a way to recognize what was happening to his mind.

Prible’s earliest emails to The Intercept were strikingly upbeat. He was hopeful that the Supreme Court would take his case, even though it was a long shot, and seemed undeterred when it was rejected. “Jeff, in spite of all of this, is an eternal optimist,” Scardino said. “He’s able to recover from the repeated blows to his legal case — to his life.”

But more recently, Prible has struggled to ward off the torment of his surroundings. In early November, a series of panic attacks sent him spiraling. “You know I was fine until they locked me in a tiny cage for so fucking long and killed everyone around me I come to care for!” he wrote in one email. In another, he remembered a friend executed years ago, whom he believed was waiting for him “at the end of the Green Mile. … He comes to me in my dreams and always makes me smile like only he can!” In the wake of the panic attacks, Prible sent a letter asking the judge in his case for an execution date.

Legally, it would take more than such a letter to put Prible in imminent danger of execution. And he’s not actually ready to give up. “In the Marine Corps, they teach you contingency plans for everything,” he said in a recent phone call, discussing a possible hearing in state court. As Christmas approached, he shared recipes from a holiday-themed issue of Southern Living.

Despite bouts of rage and despair, Prible expresses constant gratitude for those who have helped him, whom he describes as heaven-sent. Though he does not consider himself religious, he takes comfort in passages from the Bible. One, from the book of Jeremiah, promises freedom from captivity: “For I know the plans I have for you, declares the Lord, plans to give you hope and a future. … I will gather you from all the nations and places where I have banished you … and will bring you back to the place from which I carried you into exile.”

The post What Happened When a Star Prosecutor Was Accused of Running a Jailhouse Snitch Scheme appeared first on The Intercept.

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Invisible Man

Hermilo Herrero, 35, had been stuck inside the Harris County jail for months. He was bewildered and angry. He’d been serving a drug sentence at the federal correctional institution in Beaumont, Texas, when he was indicted for a cold case murder he swore he did not commit, then dragged to Houston to face trial. There was no evidence linking him to the crime save for a pair of informants enlisted by prosecutor Kelly Siegler. On the stand, they claimed that Herrero had confessed to the 1995 murder of his friend Albert Guajardo. In April 2002, Herrero was sentenced to life.

Herrero was awaiting transfer back to FCI Beaumont when he saw that a man named Jeffrey Prible was about to stand trial down the road for murdering a family in Houston. The case was familiar — Herrero had read about it in the Houston Chronicle. Prible was charged at almost the exact same time as Herrero, and both cases involved murders gone cold. But the more Herrero learned about Prible’s case, the more disturbed he was by the parallels. As in Herrero’s case, an informant claimed Prible had confessed to him at Beaumont. And as in Herrero’s case, the informant made a deal with Siegler that could get him out of prison early.

Herrero had seen his share of legal trouble. But Siegler turned him into a cartoon villain at trial, comparing him to the notorious mobster John Gotti. Siegler told jurors that after running into Guajardo at a bar, Herrero had attacked him from the backseat of a moving van, slitting his throat and beating his head with a hammer. He rolled Guajardo’s body in a rug, Siegler said, and threw it on the side of the road. Although the lead investigator, Harris County homicide detective Curtis Brown, bluntly conceded on the stand that he’d found no evidence implicating Herrero, Siegler and her snitches convinced the jury that he had committed the brutal murder.

The informants who testified against Herrero were also at Beaumont on drug crimes. Their convictions came out of a tough-on-crime era that saw the federal prison population explode. Spurred by the war on drugs, sentences grew longer, and for those convicted after 1987, the sweeping Sentencing Reform Act eliminated federal parole altogether.

For people serving long sentences with no end in sight, providing information to the government became one of the only ways to win early release. Although Rule 35 had been part of federal criminal procedure for decades, the drug war transformed it from a provision that merely gave judges a chance to show mercy to one that required incarcerated people to provide “substantial assistance” to prosecutors for any chance at leniency. Informing on their peers was a deal many were willing to make — even if it meant lying on the stand.

Within such a population, men like Herrero and Prible were sitting ducks. Not only were they facing new charges while in federal prison, but both had been charged with murder — the kind of high-stakes prosecution that could yield significant benefits for anyone who offered intel.

Herrero knew the men who testified against him: Jesse Moreno and Rafael Dominguez. Moreno was the star witness, “pretty much the crux of this case,” Siegler said in her opening statement. Although she told jurors that she would only vouch for Moreno’s Rule 35 motion if he told the truth, to Herrero, this was a cruel joke. Like Prible, he swore the case against him had been blatantly fabricated.

It was only when Herrero was finally being transferred out of Houston, waiting in the holding tank to go back to Beaumont, that he happened to meet someone who had insight into just how connected the two cases were. The man was Black, in his late 20s, stocky and bald. He went by Brother Walker.

“He told me he knew everything about what happened to me and a guy named Prible,” Herrero recalled. According to Walker, Beaumont was home to a ring of informants who gave Siegler information to use against defendants in state cases in exchange for her help in their federal cases. Moreno and Dominguez were part of this ring, as was Michael Beckcom, the star witness against Prible. The head of the operation was a man who lurked in the background of both Prible’s and Herrero’s cases, someone who supposedly heard both men confess yet was conspicuously absent from both trials: Nathan Foreman.

A relative of the legendary boxer George Foreman, Nathan Foreman arrived at FCI Beaumont in early 2000 for federal drug crimes. He was placed in the Special Housing Unit, nicknamed the SHU, where he worked as an orderly. The job gave him some freedom of movement, allowing him to visit different cells. Some knew him as “Green Eyes.” Others called him “Bones.” To Herrero, Foreman was the “invisible man.” He was convinced he’d never seen him. Yet at trial, Siegler repeatedly characterized Foreman as one of Herrero’s associates in prison.

Walker told Herrero that he had firsthand knowledge of the Beaumont snitch ring: Foreman had recruited him too.

Herrero asked if he would be willing to put what he knew in a statement. But Walker was hesitant to get involved. Not long after their return to Beaumont, Herrero was transferred to a different prison. Although he lost touch with Walker, Herrero was determined to share what he’d uncovered with Prible.

Texas death row is located at the Polunsky Unit in Livingston, some 70 miles north of Houston. The state has long been notorious as the execution capital of the country. By the time Prible arrived in November 2002, 29 men had been executed that year alone. Four more would be killed before Christmas.

As Prible tells it, he arrived on death row convinced that it was only a matter of time before somebody realized a mistake had been made. “As bad as this place was, I thought this would all get straightened out,” he said. Growing up on the border of Houston’s north side, Prible had not been raised to mistrust the criminal justice system. His parents were “just middle class, working people,” Prible’s aunt, Cheryl Peterson, said. “We used to believe the police were all righteous and good.”

Nevertheless, Prible would be the first to say that he wasn’t a model citizen. As a teenager, he partied and ran from the cops. “We were stupid as fuck when we were young but goddamn we had fun,” he said. Things got more serious as he got older. At the punishment phase of his trial, his ex-wife said he used cocaine and steroids, which compounded his mood swings. “He could be happy, completely happy one minute, and completely hysterical, crazy mad the next.” At his worst, she said, he was physically and emotionally abusive, threatening to hurt himself or her.

“Jeff was a handful from the time he was little,” Peterson recalled. She said there was a history of bipolar disorder in their family, which she suspected Prible shared, although he was never diagnosed or treated. This was the kind of mitigating factor that might have persuaded a jury to spare his life. But Prible’s lawyers focused instead on portraying him as a loving son, father, and uncle who would never hurt a child. That much was true, according to Peterson, who never believed Prible committed the murders.

Peterson carried guilt over her own unwitting role in the case. While awaiting trial, Prible asked her to send him a copy of the probable cause affidavit laying out the state’s evidence against him. He then recklessly showed it to his neighbors at Beaumont. “That helped set him up,” Peterson said. One man who was incarcerated alongside Prible testified at trial that he’d warned Prible to stop discussing it. “I told him to shut up.”

Not long after Prible arrived at Polunsky, a neighbor on death row named Jaime Elizalde asked him if he’d ever done time in federal prison. Prible said yes, he’d been at Beaumont. Elizalde responded that his good friend, Hermilo Herrero, was locked up at Beaumont. Herrero was innocent, Elizalde told Prible, and he knew this for a fact — because he was the one who had murdered Guajardo.

Herrero’s wife had recently visited Elizalde at Polunsky, and she recognized Prible in the visitation room. Prible said he almost fainted when Elizalde showed him paperwork from Herrero’s case and he saw the people involved: Kelly Siegler, Curtis Brown, and a pair of informants from Beaumont. Elizalde also shared a letter from Herrero, who described meeting a man who knew the whole story of how he and Prible had been set up. Herrero did not know much about the man, only that he was Black and went by Walker.

Correspondence between people incarcerated at different facilities is strictly forbidden. Most communication happens illicitly or by word of mouth, so there is no record of the information Herrero shared. Nor was there a way for Prible to write Herrero directly — any letters would be swiftly confiscated. Nevertheless, from his death row cell, Prible set out to find Walker.

It would not be easy. For one, he didn’t know Walker’s first name. And he got nowhere when he tried to tell his lawyers what he’d learned. After his direct appeal was rejected in 2004, Prible was assigned a new attorney to represent him in state post-conviction proceedings: longtime Houston criminal defense lawyer Roland Moore III. It might have been a reason for optimism; Moore had just won a new trial for a man who was misidentified by a woman coming out of a coma.

Prible was certain that Walker was the key to exposing the conspiracy against him. But to his dismay, Moore seemed unmotivated to find him. Instead, the attorney set about proving that Prible’s trial attorneys had been ineffective, often the most promising path to relief for people on death row.

Among Moore’s claims was that the lawyers had failed to challenge the state’s forensic evidence. A well-respected DNA scientist named Elizabeth Johnson provided a declaration disputing the testimony of Bill Watson, the analyst who claimed that sperm found in Nilda Tirado’s mouth must have been deposited right before she died. Watson did not conduct the microscopic examination necessary to support his conclusions, Johnson wrote. Nor was he apparently aware of studies showing that sperm could be found in oral samples of live individuals many hours after being deposited, including those who rinsed their mouths. Had Prible’s attorneys challenged Watson’s unscientific testimony, it could have been kept out of the trial.

Moore included Johnson’s declaration in a state writ challenging Prible’s conviction. But Prible was furious upon learning that Moore had filed the writ without finding Walker.

“What I don’t understand is what anybody could say that would help,” Moore wrote in a letter to his client. “If the ideal witness came forward like you would dream up in a movie and said, ‘Yes, Kelly Siegler told me to say all those things about Prible’s confessing,’ … then we could have a hearing where this dream witness would say all that. But nobody would believe it. I mean nobody.”

Prible decided to take matters into his own hands. It was one of his neighbors, after all, who provided the tip that could break the case open. Now he just needed someone on the outside to run it down.

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Stroke of Luck

Ward Larkin doesn’t remember exactly when he received the first letter from Prible. As an activist involved in leftist causes, Larkin had been visiting Texas death row for almost a decade by the time they met. Some of the men just wanted someone to talk to. But from the beginning, Prible insisted he was innocent.

Larkin knew better than to roll his eyes. By that point, he’d grown close to a number of condemned men he believed were innocent. At least one had already been executed. Others would eventually be released.

Prible told Larkin that he needed help with something specific. There was a man in federal prison with the last name Walker. He was Black. And he had been incarcerated at Beaumont around 2001. That was all he knew.

Larkin, a computer programmer, scoured the Bureau of Prisons’ public database. He put together a list of men with the last name Walker. One of them, Larry Walker, seemed like a promising match. Larkin sent the man several letters but did not hear back.

He had found the wrong Walker. But by a stroke of luck, his letters made their way to the right man anyway. In 2005, Hurricane Rita pummeled the Texas coast, forcing the Bureau of Prisons to relocate hundreds of people previously housed at Beaumont. Carl Walker ended up at the federal lockup in Yazoo City, Mississippi. It was there, on the rec yard, that he spotted a friendly acquaintance he knew as Smiley. Smiley said that his cellmate, Larry Walker, had been receiving letters from someone trying to help a man on Texas death row. Smiley suspected the letters might actually be meant for him. Carl Walker said he immediately guessed what this was about. “I knew the whole thing.”

As 2007 came to a close, so did Siegler’s final cold case murder prosecution for Harris County, with the conviction of David Temple, a high school football coach accused of killing his pregnant wife, Belinda.

The investigation into Belinda’s murder had been dormant for years before Siegler dusted it off and, without any new evidence, got a grand jury to indict Temple, who was sentenced to life in prison. It was business as usual for Siegler, but that was about to change.

Siegler’s longtime mentor, Harris County District Attorney Chuck Rosenthal, who had announced his intention to run for reelection in 2008, became embroiled in a scandal after the release of emails from his work account, which included intimate messages he’d sent to a co-worker. Rosenthal withdrew his candidacy at the request of the local GOP. That same day, Siegler tossed her hat in the race, casting herself as a reform candidate. A campaign ad billed her as a “bulldog in a chihuahua’s body.” During a candidate forum at the Old Spaghetti Warehouse, Siegler acknowledged there were problems in the DA’s office but insisted that she was the one to fix them. “I am the only one who has worked there for the last 21 years,” she said. “I know how it operates.”

Reminders that she was part of the office’s entrenched culture peppered her campaign. Days after she announced her run, a new cache of Rosenthal’s emails, some involving racist jokes and explicit images, made headlines. A video of men forcibly stripping off women’s shirts in public had been sent by Siegler’s husband, who was Rosenthal’s doctor. Siegler brushed it off. “His sense of humor is crude, to put it mildly,” she said of her husband, but he could do what he wanted on his own computer because “he’s the boss.” She dismissed the incident as a distraction: “I would hope the voters are more concerned about qualifications of their DA than some inappropriate emails.”

Siegler’s qualifications were impressive, but the emails weren’t the only problem. Early in her career, she’d apologized for using the word “Jew” as a synonym for “cheat” in front of prospective jurors. She said she didn’t know it was a slur because she hadn’t grown up around many Jewish people. There was also an allegation that she’d struck a juror in a death penalty case because he was Black. Not true, she said; she’d struck the man because he was a member of the megachurch led by televangelist Joel Osteen. Its congregants were “screwballs and nuts,” she explained. She later apologized and said that by striking the juror, she was just trying to weed out those who would shy away from imposing a death sentence. “You don’t think an aggressive prosecutor hasn’t offended just a few people?” she asked.

Siegler’s campaign amassed a number of law enforcement endorsements, which pushed her through a crowded four-way Republican primary and into a runoff. But it wasn’t enough: She lost to the former chief judge of the county’s criminal courts. On the heels of defeat, Siegler resigned from the DA’s office. “All that this office stands for will always be a part of my heart,” she wrote in her resignation letter. She left her job feeling beaten up, she later told Texas Monthly. She’d imagined spending her career at the DA’s office, and now she was wondering if there would be a second act.

For a while, Siegler maintained an uncharacteristically low profile before blasting back into the headlines in 2010, when she was appointed special prosecutor in the case of Anthony Graves, who’d spent 12 years on death row for a crime he swore he did not commit. After years of legal wrangling, Graves’s conviction was overturned; Siegler was hired to determine whether the state should retry him. That October, she declared that Graves had been the victim of prosecutorial misconduct, “the worst I’ve ever seen.” It was an unexpected conclusion from a woman who for so long had been a poster child for the state’s aggressive and unreflective criminal justice system. And it came just as things were beginning to heat up in the case of Jeffrey Prible.

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Birthday Cake

As an attorney in Houston, James Rytting was familiar with Siegler’s courtroom theatrics. Her most famous stunt, tying her colleague to the headboard of a victim’s bloody bed, expanded her brand beyond Texas’s borders. A TV crew shadowed her during the trial, and the bed scene was reenacted in “The Blue-Eyed Butcher,” a Lifetime movie about the case. “I was actually surprised that the scene caused as much uproar as it did,” Siegler said. “It was just something that seemed to be the right thing to do at the time.”

Rytting taught university-level classes in philosophy and logic before turning to law. Gracile in appearance and earnest in demeanor, he quickly developed a reputation for taking on some of Texas’s most difficult death penalty appeals. In 2008, Rytting was appointed to represent Prible as the case moved into federal court.

Prible had long stopped trusting his appointed attorneys. He’d filed a series of unsuccessful motions on his own behalf arguing that Siegler had colluded with a ring of informants to send him to death row. He sought material in the state’s file related to Beckcom, Foreman, and Walker, along with one of the informants in Herrero’s case. “Siegler went to great lengths to hide her ties to jailhouse informants in Beaumont,” Prible wrote.

On their own, Prible’s motions sounded desperate and conspiratorial. But Rytting took his new client’s claims seriously. “James Rytting was the first one that ever gave us hope,” Peterson, Prible’s aunt, recalled.

Prible’s trial featured some of Siegler’s dramatic charms, which Rytting equated to the talents of a B-rate actor. She’d played up what little evidence she had in a prosecutorial style equivalent to a radio shock jock, all while apologizing for being crude. To believe Prible’s claim that he and Tirado had engaged in consensual sex, Siegler said, “you’ve also got to believe that his semen is so tasty that she walked around savoring the flavor of it in her mouth for a couple hours.”

But as Rytting prepared to challenge Prible’s conviction, he saw beyond the cinematic reenactments and blustery rhetoric to something far more insidious.

Although several years had passed since Carl Walker learned Prible was looking for him, he remained reluctant to get involved. In early 2009, however, Rytting’s investigator managed to get Walker on the phone, documenting their conversation in an affidavit. Prible had been set up, Walker confirmed, and he believed Siegler was in on it. According to Walker, Siegler fed information about the crime to Foreman, who passed it to Beckcom, Walker, and others. As Walker understood it, Siegler was concerned about getting around Prible’s alibi: the next-door neighbor who saw Steve Herrera drop Prible off at home several hours before the murders.

Interviews Rytting conducted with other defendants Siegler had prosecuted in the early 2000s revealed additional allegations that supported Prible’s theory and suggested that Siegler’s reliance on jailhouse informants extended beyond Beaumont.

William Irvan was housed next to Prible at the Harris County jail while they were both awaiting trial. In an affidavit, he said that Siegler had offered him a deal via his lawyer: If he informed on Prible, she would agree to a 35-year sentence. Irvan refused. Siegler went on to deploy an informant at Irvan’s trial to help convict him of a cold-case rape and murder, sending him to Texas death row, where he remains.

In a separate affidavit, Tarus Sales told Rytting that while in jail, he was repeatedly placed in proximity to a man he didn’t know. At Sales’s trial, the man testified for Siegler that he and Sales were great friends and Sales had confessed to murder, all of which Sales denied. Sales was also sent to death row, where he remains.

A third man, Danny Bible, recalled seeing Beckcom at the Harris County jail in advance of Prible’s trial. Beckcom approached various men to ask about their cases, gathering notes in a folder, Bible said in an affidavit. He watched as Beckcom talked to Siegler outside court one day, handing her some papers from his folder. Bible, a serial killer who confessed to a 1979 slaying in Houston, was executed in 2016.

And then, of course, there was Herrero, who was serving a life sentence based on the dubious testimony of two informants from Beaumont. Were it not for Herrero’s efforts years earlier to alert Prible to what he’d learned about the snitch scheme, Rytting might never have gone looking for information about Siegler’s use of informants.

With the new intel in hand, Rytting filed a petition in federal court challenging Prible’s conviction. He argued that a band of snitches inside FCI Beaumont, seeking to reduce their prison terms, had conspired to frame Prible using information that Siegler provided to Foreman. But because a state court had never addressed Prible’s informant claims, U.S. District Judge Keith Ellison paused the federal action to allow the Texas courts to weigh in. The case landed back in front of the judge who had presided over Prible’s 2002 trial.

In the meantime, Rytting finally arranged to meet Walker in person. On an August morning in 2010, he waited in a room at a low-level federal prison in Oakdale, Louisiana, tape recorder in hand. Walker, wearing his prison-issued khakis, strode in, sat down, and laid it all out.

Walker was just 26 when he got popped on federal crack charges. Thanks to the racist sentencing disparity between powder and crack cocaine, he was sentenced to 30 years in prison. When Walker arrived at Beaumont in the summer of 2000, he was scared and depressed, he told Rytting, according to a transcript of their meeting. “That’s more time in prison than I’ve actually been alive.”

Seeking solace, Walker gravitated to the prison church, where he sang in the choir. His devotion earned him the nickname “Brother Walker.” Being pious, a Houston native, and in prison for the first time put Walker on Foreman and Beckcom’s radar. It was a choice mix of factors that would signal credibility to a prosecutor vetting an informant. Foreman and Beckcom approached Walker with an opportunity, a “blessing,” he said. A guy named Jeff Prible would be coming to their unit. If Walker informed on Prible, he’d likely be able to get his sentence reduced. “That’s the pitch,” Walker explained.

Rytting intervened: Foreman and Beckcom knew Prible was coming to the unit before he arrived? “How could they possibly have known that?” he asked.

Walker replied that he didn’t know for sure, but “from what I understand, they were all in cahoots with the prosecutor.” Foreman handed out Siegler’s number to guys at Beaumont like mints after a meal. Walker wrote the number in his address book. Siegler was worried about the case, Foreman and Beckcom told him; where evidence was concerned, she had “little to none,” and she needed a confession to link Prible to the murders.

Foreman and Beckcom gave him details of the crime, Walker said, including where the bodies were located and the fact that DNA was found in Tirado’s mouth. They also told him that while Prible had an alibi, he had supposedly returned to Herrera’s house to slaughter the family.

“All of this was discussed before you even laid eyes on Prible?” Rytting asked.

“Before I even seen the man,” Walker said.

Walker was conflicted. Having been ratted on himself, he had little respect for informants, and being tagged a snitch in prison could be dangerous. At the same time, the crime Prible was accused of was heinous. If he was behind the deaths of three kids, then he deserved what was coming to him.

Walker decided to go along with the scheme. He joined Foreman, Beckcom, and several others in befriending Prible. They staged photos with him during visiting hours. Seven of them surrounded Prible in one shot, standing in front of a backdrop illustrated with palm trees and fluffy white clouds. In another, Foreman and Beckcom smiled broadly alongside Prible, all three accompanied by family members. The idea was to show how chummy they were — evidence that could go a long way toward corroborating their account of Prible’s confession.

Beckcom also scored some wine, expensive contraband made from commissary grape juice, and they got Prible drunk on the rec yard, trying to loosen his lips. It didn’t work; Prible got so inebriated they had to help him back to his cell. As far as Walker knew, Prible never did confess to the crime. But it didn’t really matter. They had enough details to sink him without Prible ever saying a word. “That’s the thing,” Walker told Rytting. “If I know your favorite color is blue, and I go through all this trouble to make you tell me blue, whether you tell me blue or not it still don’t change the fact that I know what your color is.”

“Whether you tell me blue or not it still don’t change the fact that I know what your color is.”

Foreman and Beckcom instructed Walker to send Siegler a letter expressing his willingness to testify against Prible. Walker didn’t write the letter, which someone else typed up for him in the law library, but he did sign it. He didn’t know if it was ever sent because in the end, he decided to withdraw from the plot. “Can I live with knowing that I am going to openly lie about information I have no idea about and send this man to death?” Walker asked. “I concluded that I could not do that.”

Rytting told him that in Beckcom’s version of events, Prible had confessed to Beckcom and Foreman on the rec yard. “That’s bullshit,” Walker replied. There are only three things to do in prison, he said: Watch, listen, and do your time. Private conversations are generally confined to cells, not public spaces. For Foreman and Beckcom, that posed a problem, Walker said. They lived in a different housing block than Prible, so there was no way to allege they’d ever had an intimate conversation with the man. Instead, they’d have to say Prible confessed in the open, among a throng of others, which, Walker said, was nuts to anyone with any clue how prison works. “Who talks about murdering somebody when any ears in the surrounding area could hear? It’s just not logical.”

Walker said he’d been apprehensive about coming forward, but the situation still weighed on him. He knew there could be serious repercussions for helping someone who might be guilty — and he didn’t have any idea if Prible was guilty. “Nobody’s going to give you a pat on the back for releasing somebody who was suspected of such a horrendous crime,” he said. “And it’s not that I am looking for a pat on the back. I just don’t want something else in the back.” But the bottom line was that he believed Prible had been set up, and that was wrong. “I just know these guys is guilty of conspiring against him,” he told Rytting. “I know that for a fact. I do know for a fact that Kelly Siegler was involved.”

“Prible was dead the day he hit the yard,” Walker said. “They had already baked a cake for the man. He just didn’t know it was his birthday.”

Back in Houston, Rytting asked Mark Kent Ellis, the state judge who presided over Prible’s trial, to inspect Siegler’s files for any materials that should have been disclosed to defense lawyers. Among the items Harris County prosecutors handed over was a sealed envelope marked “attorney work product.” Inside were three letters from would-be Beaumont informants, including Walker.

The sequestered letters were strikingly similar. Each referenced previous communications with Siegler and reinforced the idea that Prible had killed Herrera in a dispute over money. The formatting was identical, and all three contained the same misspelling of Prible’s name as “Pribble,” suggesting a common author.

As Siegler might remember from “previous conversations with Nathan Foreman,” Walker’s letter began, he and several other guys from Houston had grown close to Prible; sharing a hometown put Prible at ease. “At first Jeff would only talk about the bank jobs he had pulled, but later he began to open up about the murders and how he did what he thought he had to do. It was business, not personal,” the letter read. “I’m more than willing to testify to these things in court. … I will help you in any way I can and would appreciate any help you could give me.”

“Steve had screwed him out of some money so he did what he had to do,” read a letter signed by Jesse Gonzalez, who enclosed a photo of himself with Prible.

“Pribble confided in me of Steve owing him some money from the banks they were robbing together, and how he had gone back that night to get what belonged to him,” the third letter, from a man named Mark Martinez, read. “I am more than willing to testify to these things in court.”

Martinez later told his prison counselor that “some dudes” at Beaumont had “been pressured” to write letters to Siegler. He neither wrote nor signed the letter, he said, but would not elaborate. The counselor confirmed that Martinez’s signature did not match the one on the letter he purportedly signed, according to a defense investigator’s affidavit.

Rytting tried to persuade the judge that the state had gone to great lengths to conceal the plot to frame Prible. Only now, with the information Walker provided and the documents discovered in Siegler’s files, were facts emerging that could prove the conspiracy. But Ellis was unmoved. While he concluded that Walker was “present during the planning of the alleged conspiracy” to inform on Prible, he quickly dismissed the revelation. Prible’s allegations were “unpersuasive” and full of “speculation,” he ruled, noting there was no evidence that Beckcom had recanted his account of Prible’s confession.

After an unsuccessful appeal, Rytting prepared to revive his case in federal court.

4

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Show on the Road

TNT aired the inaugural episode of its first reality show, “Cold Justice,” in 2013, starring Siegler and former crime scene investigator Yolanda McClary. Produced by “Law & Order” creator Dick Wolf, the pilot investigated the case of a woman in Cuero, Texas, who died of what appeared to be a self-inflicted bullet to the head. In the span of a week, Siegler and her co-stars concluded that the woman had actually been killed by her husband; he was charged and pleaded guilty to murder.

“Cold Justice” was a hit. Fans were drawn to Siegler and McClary for their gumption, expertise, and empathy toward victims’ families. Critics liked that the series focused on small towns rather than big cities. “Siegler and McClary are attractive and photogenic, yet never ham it up on camera or glamorize their jobs,” one reviewer wrote. “They’re eminently professional.”

The show was Siegler’s idea. In her years as a Harris County prosecutor, she had served on a committee that reviewed cold cases across the state. “I realized that a lot of these agencies have cases that are really close to being solved,” she told Texas Monthly. “That’s where the idea started, and after I left the DA’s office, I tried to sell it to a couple of people out in the LA world, and one day I got hooked up with Dick Wolf. … He immediately loved the idea.”

The real-world impact was mixed from the start. After the pilot aired, an article titled “Lukewarm Justice” was printed in the professional journal of the Texas District and County Attorneys Association. Authored by the DA who handled the Cuero case, he described how the publicity created a nightmare when it came to selecting a jury, leading to a mistrial. While he praised Siegler and her co-stars, he was disgusted with the producers, who refused to push the air date until after the trial. “‘Justice’ was out the window and ‘cold’ was all that remained,” he wrote.

Coverage of the show steered clear of such controversies. In interviews, Siegler pushed the lesson she wanted audiences to take from her work. If “Cold Justice” had a mantra, she said, it was: “There is nothing wrong with circumstantial evidence cases, oh my God! People, would you quit thinking that!”

By the time “Cold Justice” finished its third season, however, Siegler and TNT were facing the first of several defamation lawsuits. A man Siegler accused of murdering his wife, who was later acquitted, alleged that the show used coercive tactics by telling the local DA’s office that the episode would not be televised if the DA declined to seek an indictment. The producers denied the allegation, and the lawsuit was eventually dismissed. (To date, the other defamation suits have also been unsuccessful.)

In another episode, a Georgia prosecutor decided to move forward with the case Siegler assembled only for a judge to issue a scathing ruling years later, dropping all charges against the defendants and barring the state from pursuing them in the future.

“It is doubtful defendants would have ever been charged based on the record of this case in the absence of interest from a California entertainment studio 10 years after the crime was committed,” the judge wrote. The studio profited from the “scandalous allegations” but had “no burden of proof in a court of law,” he continued. “This order is the outcome that results naturally when forensic inquiry and the pursuit of truth are confused with entertainment.”

TNT canceled “Cold Justice” after the third season. After a brief hiatus, the show found a new home on Oxygen as part of the network’s pivot to true-crime programming.

“This order is the outcome that results naturally when forensic inquiry and the pursuit of truth are confused with entertainment.”

In the meantime, Siegler’s record in Texas started to come under scrutiny for the first time. In July 2015, a district court overturned the conviction of David Temple, the high school football coach Siegler had put on trial for killing his pregnant wife. The judge found that Siegler had withheld evidence dozens of times in violation of Brady v. Maryland, a landmark Supreme Court decision requiring prosecutors to turn over exculpatory evidence to the defense.

Siegler’s justification of her conduct was almost as stunning as the violations themselves. “Of enormous significance,” the judge wrote, was her testimony insisting that she was only obligated to turn over exculpatory evidence that she believed to be true.

“If Kelly’s bizarre interpretation … were ever to be the law, then all a prosecutor would ever have to do to keep any witness statement away from the defense is say, ‘Well, I didn’t believe it,’” Paul Looney, an attorney who worked on the Temple case, told the Houston Press. “If Kelly Siegler’s a lawyer in five years, I’ll be shocked.”

Before long, Siegler’s conduct in other cases was being questioned. The Houston Chronicle published a story citing similar allegations in the death penalty case of Howard Guidry. “Here it is — the same patterns and practices,” Guidry’s lawyer told the paper. She argued in court that Siegler had withheld critical evidence from Guidry’s trial attorneys, including fingerprints found at the crime scene that belonged to someone other than their client. Guidry’s appeals have since been denied.

For Prible and his neighbors on death row, the questions suddenly swirling about Siegler’s conduct were woefully overdue. While Siegler was promoting “Cold Justice” to a friendly press, an incarcerated writer at Polunsky named Thomas Whitaker published a sprawling series about Prible’s case on his blog, Minutes Before Six, with the help of supporters on the outside. Drawing on case records as well as conversations with Prible, Whitaker wrote in exhaustive and vivid detail about Prible’s legal saga.

While Siegler was basking in TV stardom, Prible was languishing, talking about his case to anyone who would listen. “I’ve watched his mental state deteriorate over the years,” Whitaker wrote. He recalled hearing thumping from outside his cell, only to discover that Prible had been slamming his head against the wall. “That is how I see him in my mind’s eye these days, alone, on his hand and knees, the wall splotched crimson, a dull knocking sound echoing down the run. And no one, no one, is listening.”

5

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Ticket Out of Jail

As Rytting peeled back the layers in Prible’s case, he became convinced that it was inextricably linked to that of Hermilo Herrero. Herrero’s innocence claim had gotten a temporary boost in 2005, when Jaime Elizalde, Herrero’s friend on Texas death row, gave a sworn statement confessing to being the real killer in the case. Elizalde later pleaded the Fifth, refusing to answer questions on the matter in court. He was executed in 2006. But the records Rytting obtained supported what Herrero had long suspected: that he and Prible were set up by the same ring of Beaumont informants. Rytting took on Herrero’s case pro bono.

Some of the most important records were related to Jesse Moreno, the star witness at Herrero’s trial. As it turned out, it was Moreno who gave Siegler Foreman’s name in the first place. Moreno had a history of cutting deals with the state. In 1997, while he was serving a federal sentence for drug crimes, Siegler put him on the stand to testify against another man on trial for murder. Siegler wrote a Rule 35 letter on Moreno’s behalf, but it did not result in a sentence reduction.

In 2001, Moreno got back in touch with Siegler while at Beaumont, reminding her of his previous assistance, which he felt had gone unrewarded, and offering “some info that can be helpful for you on an unsolved case.” In a tape-recorded, in-person conversation that July, he told Siegler that Herrero had confessed to him more than a year and a half earlier, in 1999. Foreman and Rafael Dominguez were both present for the confession, he said. There was one problem: Foreman wasn’t at Beaumont in 1999.

By the time Moreno took the stand at Herrero’s trial, Foreman had disappeared from his account of Herrero’s confession. Meanwhile, Dominguez, the second informant Siegler called as a witness, testified that Foreman was present for two subsequent confessions by Herrero.

Although Siegler told jurors that Moreno had put his life on the line to share what he knew, Moreno testified that he didn’t have much of a choice: Herrero had put a hit on him after discovering that he had assisted authorities in other cases. The threat was so dire that Moreno was put in protective custody and eventually transferred away from Beaumont. Cooperating with Siegler in the hopes of receiving a time cut was the only way to get out of federal prison alive, Moreno said. “Either that or I’m dead.”

But memos Rytting obtained from the Bureau of Prisons dismantled this story. Records documenting Moreno’s transfers made no mention of Herrero, suggesting instead that Moreno feared for his life because he’d crossed a prison gang for which he’d been smuggling drugs. He was shipped out of Beaumont after cooperating with officials investigating the illicit activity. As Rytting later argued, Siegler allowed “false and misleading testimony from Moreno about when and why he decided to turn state’s witness against Herrero.”

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As he worked to untangle the web of informants, Rytting realized he needed help and enlisted a civil lawyer named Gretchen Scardino. Born and raised in Texas, Scardino had worked on death penalty litigation as a summer law clerk at the California State Public Defender’s Office. “My eyes were opened enough to know that I didn’t know what I was doing and that I might be getting in over my head,” she recalled. After graduating law school, she turned to civil practice.

But the desire to return to capital litigation didn’t go away. She had never understood the logic behind the death penalty, that punishing someone for murder should mean committing murder in response. She’d also learned from a young age that deadly violence was rooted in complex problems, and those who killed were often vulnerable themselves. A family friend had murdered his parents after becoming schizophrenic. “Knowing him before he became mentally ill and before he did this crime probably had a pretty big effect on me as a young person,” she said.

Prible’s case was Scardino’s reintroduction to death penalty work. She started out by reading the case record and trial transcripts. “I really thought that there must be a volume of the transcript missing,” she recalled. “I couldn’t believe that someone could be convicted of such a horrible crime and sentenced to death based on what I had seen.”

Although the Prible case presented a steep learning curve, her lack of experience also served her well: Unlike civil litigation, which involves obtaining large amounts of discovery as a matter of course, in federal death penalty appeals, “you don’t automatically get discovery,” she said. A judge has to grant permission every step of the way. But Scardino didn’t know this at the time. “I just approached it as, ‘Let’s ask for everything that we would ask for if it was a regular civil case,’” she said. “And that’s kind of what broke it open.”

In early 2016, a critical piece fell into place. After leaving Beaumont, Foreman had been sentenced to decades in state prison. Thirteen years after his role in the snitch ring first came to light in a chance encounter between Walker and Herrero, Foreman decided to talk. The result was a pair of affidavits, one in Prible’s case and one in Herrero’s.

The affidavits did not address whether Foreman had been the leader of the snitch ring, as Walker described. But contrary to the claims made by the informants in both cases, Foreman said he never heard either man confess. “Prible did not brag in my presence about killing an entire family,” Foreman said. “Prible did not tell me that he was the kind of man who can go in a house and take out a whole family and come out clean or say that he was a bad motherfucker.” When Prible talked about Steve Herrera, “he talked about him like he was a friend he had lost.”

Foreman confirmed something Walker said: that men incarcerated at Beaumont joked about how Prible would be their “ticket out of jail.” Although Prible discussed his case with Foreman, “I learned information about his case from Kelly Siegler too,” he said in his affidavit. She “knew that FCI inmates wanted to testify against Prible in return for help getting their federal sentence reduced.” According to Foreman, his first meeting with Siegler took place in August 2001. “I think it was before I even met Prible,” he said.

Soon afterward, Prible’s attorneys asked U.S. District Judge Keith Ellison to order the Harris County DA’s office to hand over any trial material that was “withheld from the defense on the basis that it is work product, privileged, or otherwise confidential.” The DA’s office eventually agreed to submit hundreds of pages to Ellison for a determination on whether they should have been disclosed.

Almost five months later, Ellison issued his order. He had identified a number of records that “possibly contain exculpatory information,” including 19 pages of handwritten notes. The notes were written by Siegler and her investigator Johnny Bonds. Some were hard to decipher, but a few things jumped out immediately. The notes confirmed that Siegler and Bonds had met with Foreman to discuss the Prible case on August 8, 2001. At the meeting, Foreman had positioned himself as an informant, offering intel about an apparent confession by Prible. One note said Prible showed “Ø remorse.”

The notes suggested that Foreman might not have had his facts straight. He seemed to be under the impression that Prible’s own family had been murdered. But if Siegler was skeptical at the time, there was no hint of it in the records, which showed that she met with Foreman again in December.

The notes dramatically undercut the scenario Siegler presented at Prible’s trial, in which Beckcom and Foreman met Prible through a casual encounter on the rec yard. In reality, Siegler had discussed the case with Foreman before Prible was even indicted. “Oh my god. I cannot believe that this has been hidden,” Scardino remembers thinking. “This puts the lie to the whole story about Beckcom and Foreman just coincidentally coming into contact with Jeff.”

Just as damning were notes that appeared to undermine key forensic evidence Siegler presented at Prible’s trial. Prosecutors had elicited testimony from a DNA analyst who claimed that the sperm found in Tirado’s mouth had to have been deposited shortly before she was murdered. But the notes showed that Siegler had consulted a different forensic expert, the director of the police crime lab in Pasadena, Texas, whose analysis did not support the inflammatory theory she presented at trial. “Pamela McInnis — semen lives up to 72 hours,” Siegler had written.

“So much of the trial was just this really horrific narrative spun by the prosecution,” Scardino said. In her closing argument, Siegler asserted that Prible had shot Tirado moments after forcing her to perform oral sex. But Siegler’s own notes made clear that the evidence didn’t support this.

To Scardino, the revelations were a bombshell. “I thought, ‘Oh wow. We’re gonna win this case.’”

The post How Two Men Convicted by Kelly Siegler Uncovered the Dark Secret to Her Success appeared first on The Intercept.

1

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Secrets of Stardom

Only a few bones remained and there was no clear cause of death.

In the realm of murder cases gone cold, this was a challenging one — even for Kelly Siegler, a veteran prosecutor from Houston, Texas, with a nearly perfect conviction record and an evangelical fervor for solving cold cases using circumstantial evidence.

There were a few facts to start with. Twenty-nine-year-old Margie Pointer had disappeared in 1987. What was left of her was found in a ravine near Alamogordo, New Mexico, 17 years later. Despite the best efforts of a local cop haunted by the case, it remained unsolved. The Alamogordo Police Department needed help, and Siegler, star of the true-crime reality show “Cold Justice,” was there to answer the call.

Siegler arrived in town with her co-stars, Yolanda McClary, a former Las Vegas crime scene investigator, and Johnny Bonds, a retired Houston homicide detective. They had their work cut out for them, but there was an additional hurdle: “The statute of limitations for second-degree murder has run out,” Siegler explained at the start of the episode. “So our job this week is to see if the evidence warrants a first-degree murder.”

“A first-degree murder in New Mexico has to be committed in a willful and deliberate way,” she went on. “Since we don’t have a crime scene or any DNA, we’re gonna need to find witnesses who can show that it was committed in a willful or deliberate way.”

In other words, determining what happened to Pointer wasn’t the aim so much as ensuring they landed on a scenario that would make her alleged killer eligible for punishment.

In the world of “Cold Justice,” identifying new suspects isn’t what Siegler and her team are there to do. Instead, they arrive in town with the objective of wrapping up a cold case within a week. They always have a couple of suspects in mind, individuals the local cops have previously investigated. In Alamogordo, they quickly latched onto Pointer’s former co-worker, a man with whom, rumor had it, she was having an affair. The day Pointer went missing, he showed up at a friend’s cabin 4 miles from where her bones were later found with a hurt thumb and a scratch on his cheek. In the absence of a body, cause of death, or any other physical evidence, these injuries convinced Siegler that she knew how Pointer had met her demise.

At the Alamogordo Police Department, Siegler reenacted her theory of the murder. She and Bonds demonstrated how Pointer could have been strangled to death and her attempts to fight back could have produced the injuries found on their suspect. With his hands around Siegler’s neck, Bonds explained that Pointer would have tried to pull the killer’s thumb off her throat. Siegler, pulling his thumb with one hand, reached toward his cheek with the other. “Scratch, scratch,” she said. Bonds said it would take 15 to 20 seconds for Pointer to black out and at least another minute to kill her.

“A minute and a half of consistent pressure without letting go, never changing your mind,” Siegler said. “How is that not deliberate?”

“All right, sounds good,” the police investigator said. They decided to take it to the district attorney.

The DA was less convinced and declined to seek an indictment. Siegler and the investigator returned looking crestfallen. Bonds sunk his head into his hands.

“Here’s the good news: Your case is strong, your case is great,” Siegler told the investigator. “It might be circumstantial, there’s nothing wrong with that. It’s ready to go right now. But she doesn’t want to do it yet.”

The episode, titled “Sunspot Highway,” aired in July 2014 as part of the show’s second season. Although “Cold Justice” had been running for less than a year, Siegler had already attracted a devoted following, and the Alamogordo DA’s decision did not go over well. Fans were convinced that Pointer’s co-worker had killed her and Siegler had figured it all out. “This is a slam dunk case for everyone except the DA,” one viewer wrote on the show’s Facebook page. “WTF is with that idiot DA,” another wrote. “You guys handed her the killer on a silver platter and she refused to charge him!”

That a case so lacking in direct evidence could convince Siegler’s fans of the man’s guilt was a testament to her skill in crafting a narrative, whether for a TV audience or a real-world jury.

As an assistant district attorney in Harris County, Texas, Siegler was known for her courtroom theatrics. She once famously straddled her colleague atop a bloody mattress at trial to reenact for jurors how the defendant had stabbed her husband 193 times. Siegler’s flair for the dramatic was perfect for TV, while her reliance on circumstantial evidence allowed her to spin bare facts into a compelling theory that might or might not be supported.

While “Cold Justice” often boasts about its track record — it has helped bring about 49 arrests and 21 convictions over six seasons, the Oxygen network reported in May — the show has also weathered a series of defamation lawsuits. Many of the cases Siegler assembled eventually fell apart precisely because there was too little direct evidence to convict whomever she identified as the killer.

Siegler’s TV career has not suffered for the controversies. In September, she took the stage before a cheering crowd in Orlando, Florida, as one of the headliners at CrimeCon, an annual conference for true-crime fans and creators. She was there to promote two shows. Not only had “Cold Justice” begun taping its seventh season, but she would also be starring in a new series, “Prosecuting Evil With Kelly Siegler.” The program, which premiered on November 18, takes her back to her home state to examine “the most harrowing homicides and toughest trials in Texas history — all told with Kelly Siegler’s unique insight and unparalleled access.”

“Prosecuting Evil” will revisit some of Siegler’s old Harris County cases, offering fans a behind-the-scenes look at the celebrity prosecutor’s “superhero origin story,” as one of her fellow speakers put it. “Both of our shows are about reality. There’s no faking,” Siegler told the crowd. “We’re the real deal.” She waxed nostalgic for her years in the district attorney’s office. “All those big cases,” she said, “no one’s ever told those stories.”

On paper, Siegler’s record as a Harris County prosecutor is far more impressive than the stats boasted by the Oxygen network. Over her two decades in Houston, Siegler handled more than 200 trials, securing more than 60 murder convictions and 19 death sentences. But the stories behind some of those convictions raise serious questions about their integrity. While Siegler’s formula for closing cold cases might make for great television, it has left a trail of wreckage in its wake.

As Siegler’s TV star has been rising over the last decade, a parallel reality has been playing out in Texas courts, where allegations of prosecutorial misconduct have tarnished Siegler’s reputation. Appellate litigation in murder cases handled by Siegler has exposed a history of withholding exculpatory evidence from defense attorneys, including in death penalty cases. One prominent criminal defense attorney has called on the Harris County District Attorney’s Office to review all of Siegler’s convictions.

Some of the most disturbing evidence of Siegler’s conduct is documented in the files of a case that has largely gone unnoticed: the 2002 conviction of Ronald Jeffrey Prible. Prible was sent to death row for the murder of a Houston family. The evidence tying him to the crime was entirely circumstantial. He has maintained his innocence for more than 20 years.

In 2020, a federal district judge overturned Prible’s conviction on the basis of Siegler’s suppression of evidence, ordering the state to retry or release him within six months. Instead, Texas fought the order, persuading the 5th U.S. Circuit Court of Appeals to reinstate Prible’s death sentence on procedural grounds. The court did not address Siegler’s actions. Prible appealed to the U.S. Supreme Court, but in June, the justices declined to intervene.

Today, Prible faces execution despite the fact that the case against him has unraveled. A monthslong investigation by The Intercept — including a review of thousands of pages of court records — shows that Prible’s case contains numerous hallmarks of wrongful convictions, from a shockingly inept police investigation to unsupportable junk science peddled by prosecutors at trial.

But particularly alarming is the way Siegler weaponized a network of confidential informants to construct her case against Prible, as the federal district judge found.

The star witness was a man named Michael Beckcom, who testified that Prible confessed to the killings while they were imprisoned together in southeast Texas. Beckcom, who was doing time for the audacious murder of a federal witness, was part of a ring of informants at the same lockup in Beaumont, each trying to game the system in an effort to shave time off their sentences. Several informants offered information to Siegler before they had even met Prible, according to a petition challenging his conviction filed in federal court. The petition details how Siegler encouraged Beckcom to extract details from Prible that would help her convict him and hid the extent of the informants’ involvement at trial.

“American criminal law has essentially created an underground market in which we permit the state to trade leniency for information.”

To Harvard law professor Alexandra Natapoff, author of “Snitching: Criminal Informants and the Erosion of American Justice,” the role of informants in Prible’s case is emblematic of a deeper problem that corrupts the criminal legal system. “American criminal law has essentially created an underground market in which we permit the state to trade leniency for information,” she said. Prosecutors have wide discretion to avail themselves of informants who have an obvious incentive to lie about what they know — a leading cause of wrongful convictions.

“Because so much of these negotiations and transactions take place under the table, the likelihood that anyone will ever find out is extremely low,” Natapoff said. “And because we reward police and prosecutors for arrests and convictions, we have a baked-in, dysfunctional incentive for them to use bad witnesses, bad evidence, over and over again.”

Court records reveal that Siegler repeatedly used informants in murder cases despite reasons to doubt their credibility. Details of the Beaumont snitch ring only came to light after Prible and another man Siegler sent to prison realized that she had relied on the same network of informants in both their cases. Despite strict limits on communication between incarcerated people, the two men, whose cases were otherwise unrelated, managed to connect the dots.

Siegler not only gained a reputation as a prosecutor who was willing to help informants seek sentence reductions, but she also advocated for them even when she didn’t consider their information reliable, court records show. Taken together, the records paint a damning picture of a prosecutor who cut corners and betrayed her professional obligations in order to secure convictions in weak or shaky cases. At best, Siegler was reckless in her use of informants and careless about scrutinizing the information they provided. At worst, as Prible’s lawyers argue, she actively conspired to use dubious testimony from a ring of snitches to win a conviction despite knowing the case wouldn’t otherwise hold up — framing an innocent man for murder.

Siegler has denied any wrongdoing. She declined to be interviewed for this investigation. “A second grader could see that you are biased and in no way inclined to listen to the truth or appreciate what really happened with these prosecutions,” Siegler wrote in response to questions from The Intercept. “I took an oath to seek justice and justice is what these defendants got.”

2

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House Full of Bodies

Gregory Francisco lifted his garage door before sunrise on Saturday, April 24, 1999, and immediately smelled smoke. As he rushed across the street toward the home of his neighbor Steve Herrera, Francisco could see it too, billowing from the turbines on the roof and curling out from the garage doors.

The night before, Herrera had invited Francisco to one of his regular get-togethers to drink beer, play pool, and listen to music inside the two-car garage. Francisco didn’t make it, but as far as he could tell, things looked like they usually did: The music was on, and the garage doors were raised to shoulder height. By the time Francisco headed to bed around midnight, the gathering appeared to be winding down.

Now, however, as Francisco rang Herrera’s doorbell, he could hear music blaring — “maxed out,” he later testified. No one answered, so he rushed to a side door, which was hot to the touch. Francisco kicked it open. Inside the garage, he found Herrera face down on the floor between the pool table and a washer and dryer. Francisco yelled for Herrera to wake up, but then he saw blood. His neighbor was dead.

Firefighters were the first to arrive on the scene. In a den just beyond the garage, they made a grisly discovery: Herrera’s girlfriend, Nilda Tirado, was slumped on a smoldering loveseat. Next to her charred body was a can of Kutzit, a volatile solvent; on the floor was a red gas can. The walls were covered in soot, and the couple’s big screen TV had melted.

First responders found the children in the bedrooms. In one, Herrera’s 7-year-old daughter, Valerie, was face down on a bed; Tirado’s 7-year-old daughter, Rachel, was nearby on the floor. In the master bedroom, firefighters found the couple’s 22-month-old daughter, Jade. The medical examiner determined that Herrera and Tirado had been killed before the fire was set, each shot once through the back of the neck in what she called an “assassin’s wound.” The children, whose airways were full of soot, had died from smoke inhalation.

Word of the murders spread quickly. Relatives of Herrera and Tirado gathered outside the brick home as investigators processed the scene. The house was tidy, and there were no signs of forced entry or a robbery gone wrong. Herrera’s wallet, with approximately $900 inside, was found in the back pocket of his shorts. No weapon was found, nor any shell casings, which led investigators to believe a revolver had been used to shoot the couple. They gathered bottles and cans from the garage to process for fingerprints but failed to preserve what appeared to be blood stains on the wall and washing machine — evidence that could have been left by the perpetrator.

Curtis Brown, a detective with the Harris County Sheriff’s Office, led the investigation. Court records reflect it was a less than robust inquiry. At trial, Brown confirmed that he spoke to just four people the day of the murders, including Herrera’s brother Edward and his brother-in-law Victor Martinez. Those interviews led him to Jeffrey Prible, who had been a friend of Herrera’s since grade school. From there, Brown looked nowhere else.

According to Edward, Herrera and Prible were at the house playing pool Friday night and had paged him looking to score an eight ball of cocaine. Edward and Herrera were both dealers, Edward told investigators, and Herrera was a regular user. Edward said he tried to find some but never did.

Martinez had been at Herrera’s that night. He told Brown that he picked up cigarettes and a 12-pack of Bud Light on his way to the house, arriving around 10 p.m. Later, with the beer almost gone, Herrera and Prible loaded into Martinez’s white Ford Escort, and the three men made their way to Rick’s Cabaret, a nearby strip club. Prible was friendly, Martinez said, and nothing seemed off. After several drinks, the men headed back to Herrera’s around 2 a.m. They smoked a joint outside before Martinez headed home. Prible and Herrera went back into the garage to continue playing pool.

On Saturday afternoon, Brown and Deputy Ramon Hernandez made their way several blocks west to Prible’s home. Prible, then 27, had been honorably discharged from the Marines in 1995 and was living at his parents’ place along with his 7-year-old son. The deputy said Prible was shocked to learn about the murders. He agreed to go down to the sheriff’s station to provide a statement.

Prible’s statement largely mirrored Martinez’s. After Martinez left, Prible said, he and Herrera played pool until Tirado came into the garage, fixing Herrera with a “look” that Prible took as a sign it was time to wrap things up. He said Herrera drove him home around 4 a.m. Prible went straight to bed and slept until early afternoon. He was hanging around the house, playing with his son, until the cops came knocking.

The deputy later testified that he believed Prible’s statement to be “truthful.” Nonetheless the cops asked Prible to take a polygraph, the results of which indicated deception. They read Prible his rights, and he sat down to provide a second statement. There was something he’d left out, he told them: He and Tirado were involved in an affair and had sex in the bathroom after the men got home from the club. He failed to mention this, he said, because he worried it would “ruin” Tirado’s reputation.

Prible provided a DNA sample and let the cops photograph him naked. They did not find any soot, burns, or other wounds on his body. Investigators searched Prible’s parents’ house, collecting the clothes he’d worn Friday night, which had no traces of blood, smoke, or any accelerant. They collected firearms, magazines, and ammunition. They found paperwork related to a .38 revolver but didn’t find the gun. DNA collected from Tirado was soon matched to Prible, but given his story about their sexual tryst, there was an explanation for that.

On Monday, police took a statement from Cynthia Garcia Flores, a childhood friend of Tirado’s. It was the first in a string of statements that raised new questions, not only about Prible, but also about Herrera — and what the two were up to in the weeks before the murders.

Flores said Herrera had told her husband that he and Prible were involved in a bank robbery and Herrera’s take was $12,000. Herrera had paid her husband, Vincent, for a “job” with some of the cash from the heist. Vincent said Herrera used the money to pay him for cocaine. Another woman, who said she’d been having an affair with Herrera, told police that a month before the murders, Prible handed Herrera a bag full of money. And Edward, Herrera’s brother, said that he’d seen both Prible and Herrera with large amounts of cash.

As it turned out, Prible had robbed six banks since March. The robberies went down the same way: Prible donned a ball cap and drove his mother’s car to a bank carrying a stack of manila envelopes and a note for the teller. One read, “This is a robbery,” while later iterations included a warning that he had a gun or a bomb, though he never brandished a weapon. Prible would instruct the teller to put the cash in an envelope and wait 15 minutes before “doing anything,” he later told a detective with the Houston Area Bank Robbery Task Force, which had dubbed the serial robber the “15-Minute Bandit.”

The robberies were part of an absurd scheme Herrera and Prible had devised to come up with enough money to buy their own nightclub. Prible would rob the banks, then Herrera would launder and grow the cash by buying drugs that he would sell for a profit. “After we bought one club, we would then open some more,” Prible told a task force investigator. “I trusted Steve. … I thought he could use his drug connections to make us a lot of money. Steve was a smart guy when it came to things like that.”

In all, the robberies netted the friends about $45,000. In the wake of the murders, the cash disappeared and has never been found.

On May 21, 1999, Prible confessed to the robberies. Three months later, he was sentenced to five years and shipped east to the federal correctional institution in Beaumont.

The investigation into the murders of Herrera, Tirado, and the three children went cold.

3

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A Real Trial Tiger

The day after Christmas in 1999, the Houston Chronicle published a glowing profile of a star prosecutor at the Harris County District Attorney’s Office: 37-year-old Assistant District Attorney Kelly Siegler. Titled “One shrewd cracker-barrel lawyer,” the article traced her evolution from a small-town girl from Matagorda County to a gifted prosecutor who’d shot through the ranks to “symbolize the aggressive and colorful spirit of a powerful office in a county that sends more people to death row than anywhere else.”

Born Kelly Renee Jalufka, Siegler grew up in tiny Blessing, Texas, “a wart of a town on State Highway 35 … surrounded by rice farms,” as Texas Monthly described it in a 1977 feature highlighting her mother’s homestyle cooking. Siegler’s father, known as Big Billy, ran a barbershop and worked as the local justice of the peace; he “went shoeless and held court between haircuts,” the Chronicle reported. Siegler played high school basketball and was valedictorian of her graduating class. At the University of Texas at Austin, where she graduated early after studying international business, she was known in her dorm as “the hick.”

Siegler joined the DA’s office straight out of law school in 1987. As an intern in the office’s family criminal law division, she had come face to face with domestic violence cases, which fueled a desire to seek justice for victims. The issue was personal for Siegler, who was just a child when she urged her mother to leave her abusive stepfather and watched helplessly as the system protected him. “I grew up in a world where ladies walked around all the time with black eyes,” she later said in a clip from “Cold Justice.”

Siegler arrived at the DA’s office as legendary District Attorney Johnny Holmes was becoming famous for seeking the harshest possible punishments. Before long, she was making her mark as an overachiever. Evaluations contained in her personnel file show that Siegler quickly gained a reputation as “a real trial tiger,” in the words of then-supervisor Chuck Rosenthal, who would eventually replace Holmes as DA. “I have seen her try a murder case based solely on circumstantial evidence and get a life sentence from the jury,” another supervisor wrote.

Siegler won her first death sentence in 1992. Her mother sat in the courtroom as Siegler urged jurors to send an alleged skinhead with a low IQ named Brian Edward Davis to death row for a crime he committed when he was 22. Despite her victory, Siegler cried and was sick to her stomach after the trial. “He was like every boy I grew up with,” she told the Chronicle.

But if she had any reservations about seeking the ultimate punishment, there was no hint of it in her record. Siegler was repeatedly lauded for securing convictions when the evidence was thin, or as Rosenthal put it, for her ability to make “a silk purse out of a sow’s ear.” Investigators and police detectives sent letters to Holmes praising her talent. “No average ADA would have gone to trial under the heading ‘Murder,’” one letter read. “‘Luckily, you don’t have an average ADA in Kelly Siegler.’”

Jurors were won over by Siegler’s folksy appeal and knack for weaving compelling stories from circumstantial evidence. She spent a ton of time preparing her witnesses — and it showed. Siegler credited her humble roots for helping her relate to jurors. “I practice every argument and time it out like I’m in that barbershop,” Siegler told the Chronicle. “I figure if I can talk to a jury like I’m explaining it to Daddy and his buddies, then I’m doing OK.”

At the start of the new millennium, Siegler was at the top of her game. Holmes, who retired in 2001, had transformed the DA’s office, putting Houston on the map as the most aggressive death penalty jurisdiction in the country. Siegler was both a product of the office and a trailblazer: a woman who thrived in a good ol’ boys club while pushing the boundaries of prosecutorial performance. She estimated that she’d won “at least 80 percent of the 150 felony jury trials” she’d handled, according to the Chronicle, although co-workers said the number was “much higher.” If there was anyone who could resurrect the cold case murders of Herrera and Tirado and win a conviction, it was Siegler.

It’s not entirely clear when Siegler first decided Prible was guilty of murder.

Brown, the lead detective, testified that he first brought his file on the murders to her office in late 2000. But it was another detective who helped Siegler revive the cold case: Harris County DA’s investigator Johnny Bonds, who would later become Siegler’s co-star on “Cold Justice.”

Like Siegler, Bonds started his career as an overachiever. Once the youngest Houston Police Department officer ever assigned to the homicide unit, he was immortalized in “The Cop Who Wouldn’t Quit,” a 1983 book chronicling his quest to solve a triple murder. After leaving the police force, Bonds did short stints working private security and home remodeling but quickly returned to detective work. In 1989 he joined the Harris County DA’s Office.

On March 1, 2001, Bonds received a fax from a Dallas-based DNA analyst named Bill Watson, who had examined forensic evidence submitted by the sheriff’s department, including the blood, hair, and saliva samples taken from Prible. The fax was a copy of Watson’s original two-page report from 1999. His findings were not revelatory. Scrapings taken from beneath Tirado’s fingernails had yielded only her DNA. A pair of white tennis shoes belonging to Prible was tested for blood, but Watson found none.

Still, one part of the report interested Siegler. Two male DNA profiles had been obtained from semen collected from Tirado’s body. Vaginal and anal swabs showed sperm that came from Herrera. Sperm from an oral swab was linked to Prible.

In his statement divulging the affair, Prible told detectives that Tirado had performed oral sex on him in the bathroom, which would explain the presence of sperm in her mouth. But Siegler was skeptical. Although Prible said the two had been “messing around” for some time, friends of Tirado’s rejected the notion that she was cheating on Herrera with Prible. Flores, the friend who told police about Herrera’s involvement in the bank robberies, said she’d known Prible since middle school and he gave her the creeps. Another friend said Tirado shared this opinion. “Nilda told me that she always thought Jeff was creepy,” the woman told detectives.

When these statements were first collected in 1999, the DA’s office did not consider the evidence strong enough to form the basis of a murder case. But with Siegler in charge, things changed. By the summer of 2001, Siegler had concluded that the DNA evidence from the oral swab could only be the result of sexual assault. In the absence of any other physical evidence against Prible, this would be a linchpin to her case.

In a probable cause affidavit, the DA’s office laid out the evidence against Prible, describing the bank robbery scheme and noting that Prible was the last person known to have seen Herrera and Tirado alive. The affidavit mentioned the weapons and paperwork recovered from the home of Prible’s parents; records from a local firearm retailer showed that Prible had purchased a .38 Taurus revolver in 1998, yet this weapon “has yet to be found among the defendant’s possessions.” A firearms examiner said that a projectile recovered next to Tirado’s body was “consistent with a .38 caliber.” The affidavit suggested that Prible shot Herrera and Tirado with the .38 Taurus, then successfully got rid of it.

Finally, the state cited the DNA evidence taken from sperm on the oral swab and the woman who said Tirado found Prible “creepy.” She “does not believe the complainant was having any sort of affair with the defendant based on what she thought about him.”

On August 29, 2001, a grand jury indicted Prible for capital murder.

4

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Texas v. Prible

Opening statements in the State of Texas v. Ronald Jeffrey Prible Jr. took place on October 14, 2002, at a courthouse in downtown Houston. Presiding over the trial was District Judge Mark Kent Ellis, a former Harris County prosecutor-turned-defense attorney who was elected to the bench on a Republican ticket. Siegler was accompanied by Vic Wisner, an ex-cop and veteran of the DA’s office with whom she’d teamed up in previous death penalty cases.

Siegler kicked off the state’s case with a provocation: “‘What kind of a man can go in a house and take out a whole family and come out clean?’” she began, over an objection from Prible’s lawyers. “‘That kind of person is a bad motherfucker — and I’m that kind of motherfucker.’ Those are the words of this defendant. … That’s what this man said about what he did on April 24, 1999.”

Prible’s words, Siegler told jurors, had been revealed by a man named Michael Beckcom, who was incarcerated at the federal prison known as FCI Beaumont. “And I’m going to stand here today and tell you he’s a vile, disgusting man himself,” she said. “He’s going to make you sick to your stomach.” But his testimony was crucial. This man would describe how he befriended Prible at Beaumont — and how Prible ultimately confessed to the crime.

Siegler previewed the state’s other key piece of evidence: the DNA taken from sperm found in Tirado’s mouth. A forensic expert would prove that Prible assaulted Tirado just moments before he shot her, set her on fire, and left her children to die, Siegler said. That’s the kind of man Prible is, she declared. “And he’s guilty of capital murder.”

The trial lasted two weeks, with the first several days focused on the fire and the deaths of the three little girls. Amid repeated warnings from the judge, who urged people in the courtroom to control their emotions, prosecutors introduced autopsy photos showing soot and mucus on the children’s faces, emphasizing their struggle to breathe before they died. Yet basic elements of the fire remained unclear, including precisely how or when it was set. Also puzzling was the missing murder weapon. Despite the affidavit arguing that Prible had used a .38 revolver, the same ballistics expert now testified that the weapon had likely been a 9 mm pistol.

But perhaps the most confounding testimony came from Brown, who said that he’d never considered any other suspect apart from Prible, a fact Siegler saw fit to reiterate. Yet the detective could not explain why his investigation justified such a singular focus. He didn’t pay attention to Prible’s interrogation, he said. Nor did he remember the names of anyone he interviewed in the aftermath of the murders.

Among the people Brown apparently did not recall was the most critical witness for the defense: a 12-year-old girl named Christina Gurrusquieta, who lived next door to Prible’s parents. She told police that she had seen Prible and Herrera arriving before dawn on April 24, 1999. Although there was no record of her eyewitness account in the police reports — Brown said he did not document their conversation — Gurrusquieta’s testimony lent credence to Prible’s claim that Herrera had driven him home around 4 a.m.

Gurrusquieta had turned 15 by the time she took the stand. She said she knew both Herrera and Prible; Herrera used to curse at her and her siblings when they played kickball and accidentally hit his car. In the early morning hours of April 24, she said, she got out of bed to use the bathroom and spotted the two men from her window, which faced the front of the house. It had to be after 1 a.m., since that was when her parents came home after working at the Mexican restaurant they owned. Gurrusquieta and her sister waited up for them on Friday nights. That night, Prible and Herrera “were just standing outside beside Jeff’s dad’s truck talking. And then I saw Jeff walk into his house and I seen Steve leave.”

Siegler did her best to pick apart Gurrusquieta’s account. “Is it possible, Christina, that the night you’re remembering was Thursday night instead of Friday night?” No, Gurrusquieta said. Did she “look at the clock to write down or memorialize forever what time it was when this all happened?” No, Gurrusquieta said. “Because a 12-year-old little girl would never do that, right?” Siegler said.

Siegler asked Gurrusquieta to read part of Prible’s statement aloud. “I then asked Steve to take me home. It was about 4 a.m.,” she read. So if Herrera did drop Prible off, Siegler said, “you wouldn’t have been awake to see if Jeff snuck back out of the house to get back over to Steve’s house anyway, would you?”

If it seemed like a stretch for Prible to have left Herrera’s place after a night of heavy drinking only to return to murder the whole household, Siegler and Wisner didn’t push this scenario very hard. Instead, they left the timeline vague. Jurors sought clarity during deliberations, asking the court to read back testimony about what happened when. The jury also seemed intrigued by Gurrusquieta, requesting more detail on when she was first interviewed by Brown.

But in the end, the alibi provided by Gurrusquieta was no match for the two witnesses at the crux of the state’s case: Beckcom, the jailhouse informant, and Watson, the DNA analyst.

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A 41-year-old former bodybuilder who once managed a Gold’s Gym, Beckcom was a smooth talker, fit and confident in his prison uniform. Siegler was upfront about Beckcom’s incentive to testify, asking him to describe his deal with the state. “We have an understanding that if I testify truthfully to this court that you will reciprocate by calling my federal prosecutor,” he said. The prosecutor would file what’s known as a Rule 35 motion to Beckcom’s judge. Under the federal rules of criminal procedure, the judge could reduce Beckcom’s sentence if he was satisfied that Beckcom had provided “substantial assistance” in the Prible case. But he had to be truthful, Siegler emphasized, or else no deal. Right, Beckcom said.

Beckcom testified that he’d gotten Siegler’s name from his cellmate at Beaumont, Nathan Foreman. After getting in touch with Siegler in the fall of 2001, Beckcom met with her and Bonds. She seemed skeptical of “another inmate maybe spinning a yarn,” Beckcom said. But after he laid out everything he knew in a letter, Siegler was convinced.

Beckcom said he’d met Prible through his exercise partner at Beaumont. Prible used to stop by while they worked out. One day he struck up a conversation with Beckcom directly. “I was sitting on the bleachers in the rec yard just catching some sun, listening to my radio, and Prible approached myself and Nathan Foreman,” Beckcom said. According to Beckcom, Prible was seeking advice on his case. Before long, they were discussing it every day, while also making plans to go into the asphalt business together.

Beckcom said that Prible’s account evolved over time. At first he said, “I didn’t do it.” He conceded that his DNA had been found on the female victim but said everyone knew they were having an affair. Did he say anything about a weapon? Siegler asked. Yes, Beckcom said. Prible said the cops were looking for a .38 caliber revolver he owned but that he’d sold it. That wasn’t even the murder weapon, Prible told him. Instead, he intimated that he’d successfully gotten rid of the weapon, telling Beckcom, “Asphalt’s good sometimes for hiding things.”

Eventually, Beckcom decided to get as much information as he could from Prible, thinking he could use it to his advantage. After becoming aggravated by Prible insisting on his innocence, Beckcom said, he told him, “I know what you did. … I don’t care.” After that, Prible spilled everything. The details Beckcom shared on the stand could only have come from Prible, Siegler told the jury. “How would Mike Beckcom know all the things that he does know unless the killer told him?” When Beckcom asked Prible how he got in and out of the house without being seen, he said Prible pointed to his time deployed as a Marine. “It’s a typical high-intensity, low-drag maneuver,” he said, in what was presumably special ops speak.

“It was over money,” Beckcom said Prible confessed. Herrera “fucked me out of my money and then he was going to kill me, so I handled my business.”

To illustrate the level of trust that had developed between the informants and Prible, Siegler displayed a photograph taken at the Beaumont visiting room in November 2001. It showed Prible with his mother, Beckcom with his mother, and Foreman with his parents. “He called us his brothers and said he loved us,” Beckcom said. Still, Prible was aware they might betray him. At one point he told them, “You’re the only ones that could convict me,” Beckcom said. “If you do that you’ll have to live with it. I’m prepared to die.”

He used those words? Siegler asked. “He used those words,” Beckcom said.

Prible’s lead attorney, Terry Gaiser, asked Beckcom if he had ever lied under oath. “Yes, I have,” Beckcom answered. In fact, Gaiser continued, hadn’t a federal judge in California explicitly found that Beckcom lied in a different case? “That’s correct,” Beckcom said. Yet Gaiser did not elicit further details about Beckcom’s apparent history of perjury.

If Beckcom’s testimony filled the gaps in the state’s case against Prible, Watson, the DNA analyst, gave prosecutors the tools they needed to conjure a final harrowing image of Tirado’s death. “Have you thought about what Nilda went through in the last moments of her life?” Siegler asked the jury. According to Siegler, DNA had unlocked this story.

Watson, 36, had spent two years as a forensic analyst for the Fort Worth Police Department and one year at the Dallas County Medical Examiner’s Office before moving to a lab called Gene Screen. In his years testing swabs for the presence of semen, Watson testified, he’d found that anal and vaginal swabs could retain usable quantities of sperm for roughly two to three days. But he couldn’t recall ever getting even a partial male profile from an oral swab, even in cases where the evidence was submitted quickly.

Watson drew a damning — and highly speculative — conclusion from this: Given the large amount of sperm on the swab, Tirado had not had a chance to eliminate Prible’s semen by spitting or swallowing before she was shot. Would the evidence “be consistent with the male depositing the semen in Nilda’s mouth moments, if not seconds, before she was killed?” Wisner asked. “It certainly would be consistent with that,” Watson said.

In his closing, Wisner exaggerated Watson’s testimony for maximum effect. “There is no way in the world that that semen wasn’t deposited either moments before or seconds after Nilda died,” he said. Prible shot Herrera, then “forced Nilda to orally copulate him at gunpoint and executed her as soon as he finished. As horrific as that sounds, that is the only logical conclusion that you can draw from that evidence.”

Siegler was even more dramatic: “She left this world with his penis in her mouth, knowing her husband was dead, hoping to God that her babies would survive the nightmare that is Jeff Prible.”

On October 23, Prible was convicted of murder. Two days later, jurors sentenced him to death.

It was another signature Siegler victory. “Her ability to do what few others can is a continual amazement to some, but not to those who watch her work,” her supervisor wrote in her next performance review. But while her colleagues in the DA’s office celebrated, others watched with a growing sense of alarm. For one man sitting in a Beaumont prison cell staring at a life sentence, the secret to Siegler’s success was starting to come into focus — and the picture looked eerily familiar.

The post Kelly Siegler Is a True-Crime Celebrity. Did She Frame an Innocent Man for Murder? appeared first on The Intercept.

The heat in Chicago on July 9, 2001, was blistering. At the Stateway Gardens public housing development, it was the sort of midsummer day that draws tenants and their children outside in hopes of catching a breeze. As adviser to the resident leadership at Stateway, I worked out of an office on the ground floor of a high-rise on South State Street with a small team of residents known as the Neighborhood Conservation Corps. One of our projects — a collaboration with professor Craig Futterman and law students from the Mandel Legal Aid Clinic of the University of Chicago Law School — was to monitor police performance in an effort to improve police-community relations. That afternoon, we were meeting with Futterman and two of his students to discuss an incident that had occurred a few months earlier.

Kenya Richmond, one of my colleagues, had witnessed white officers in a police vehicle strike a young Black man they were pursuing outside our State Street office. Richmond attempted to document the incident. The officers responded by arresting him on false charges, destroying his notes, and subjecting him to racist invective. En route to the police station, they told him to stay out of their way — “Who the fuck do you think you are?” — and called him “a fucking monkey” and “a fucking nigger.” The officers involved in the incident were members of the Special Operations Section, or SOS. When they failed to appear in court, the judge dismissed the criminal charges against Richmond. We were meeting on July 9 to prepare a civil lawsuit.

Our meeting was interrupted by a commotion outside. When we emerged on State Street, we found a middle-aged Black man — his name proved to be Nevles Traylor — pinned under a police car. He was moaning in pain and distress. Within a few minutes, the two white SOS officers were surrounded by a curious and then increasingly angry crowd of roughly a hundred residents. The officers’ names, we later learned, were Raymond Piwnicki and Robert Smith.

We fanned out through the crowd and set to work documenting the incident. According to multiple witnesses, Traylor had been riding a bicycle across the grounds of the development. Piwnicki, who was driving the squad car, had deliberately struck his bike from behind, pinning him against a fence. Piwnicki had then jumped out of the vehicle and repeatedly struck Traylor in the head.

Among the witnesses were several Black officers from the public housing unit. I spoke with one who was as outraged by what she had witnessed as any of the residents. Another exchanged sharp words with Piwnicki, then used wire cutters to cut through the fence and extricate Traylor from under the police car.

An ambulance arrived and Traylor, having been handcuffed by the SOS officers, was taken to the hospital. As the ambulance drove off, a television news crew drove by, assessed the situation, then, apparently realizing they had missed the “when it bleeds, it leads” moment, drove on.

Traylor was charged with two counts of possession of a controlled substance with intent to deliver, felonies that would require, if he was convicted, a mandatory minimum sentence of four years and would allow a maximum sentence of 15 years. Unable to make bond while awaiting trial, he remained in jail for four months.

The Mandel Legal Aid Clinic represented Traylor in his criminal case and later brought a federal civil rights suit against Piwnicki and Smith. In the criminal case, the officers testified that they had observed Traylor engage in a hand-to-hand drug transaction and had undertaken pursuit in the course of which he had fallen off his bicycle. They also claimed that they had found no money from the drug transaction on his person because he had flung it away during his flight. The defense demonstrated that it was physically impossible to see what the officers claimed to have seen from the location a block away where they placed themselves. (As a witness for Traylor, I testified on that point.) They argued that the officers struck Traylor with their vehicle to amuse themselves, then fabricated evidence and falsely arrested him to cover their abuse.

The judge found that Piwnicki and Smith arrested Traylor without probable cause, in violation of his constitutional rights, and dismissed all charges. The subsequent civil suit was settled in 2003.

On the day of the incident, a complaint was filed on Traylor’s behalf with the Office of Professional Standards, which at that time was the agency within the police department that investigated police shootings and citizen complaints of excessive force. As chance would have it, the OPS office was less than a block away from the site of the incident. Yet the investigator made no effort to interview any of the scores of witnesses to the incident. Nor did he interview the accused officers. On the basis of an interview with Traylor, his medical records, and written statements from Piwnicki and Smith denying the allegations, he made a finding of “not sustained” “due to lack of evidence to either prove or disprove” the alleged misconduct. After the judge ruled in the criminal case that Piwnicki and Smith had violated Traylor’s constitutional rights, OPS saw no need to reopen its investigation.

Racism as Sport

In 2006, the SOS unit imploded in scandal. Not surprisingly, in view of the quality of the Traylor investigation, OPS played no role in exposing the criminal activity within the unit. Rather, investigations were initiated by the Cook County State’s Attorney’s Office and later pursued by the U.S. attorney, after it became apparent that SOS officers were consistently failing to appear to testify in drug cases.

The investigations exposed a robbery and home invasion ring within SOS: A group of officers had begun by shaking down drug dealers, then graduated to robbery, extortion, and kidnapping of anyone likely to have cash on hand.

Ultimately, 11 officers were convicted. Jerome Finnigan, the reputed ringleader (and one of the officers who abused Richmond), was given a 12-year sentence for crimes that included soliciting the murder of another SOS officer whom he believed would testify against him. And the city has paid out millions of dollars in settlements and awards in civil suits brought by victims of the rogue SOS officers.

The political fallout from the scandal was intense. Together with other high-profile police misconduct cases at the time, it generated a serious crisis for Daley, who responded by forcing the resignation of his police superintendent, disbanding the SOS unit, and replacing OPS with a new investigative agency: the Independent Police Review Authority.

The true mission of OPS — to protect officers from discipline while maintaining the illusion that there was a system in place to investigate misconduct complaints — was made clear when it was revealed that an extraordinary number of citizen complaints accused Finnigan and his co-conspirators of precisely the forms of criminal activity for which they were ultimately convicted, yet they had virtually never been disciplined.

Finnigan is near the top of the list of CPD officers with the most citizen complaints. Also high on that list is Piwnicki. The difference is that Finnigan went to prison for his transgressions, while Piwnicki remains on the force. His career was not affected by the SOS scandal, for most of the citizen complaints against him allege not corruption, but racist abuse — something which the accountability system, then and now, largely ignores.

That is not to say that Finnigan and his cohort of rogue SOS officers were not deeply racist. Their racism was apparent in their selection of victims: Black and brown residents of low-income neighborhoods rendered vulnerable and presumptively not credible due to the criminalization of their communities by the war on drugs — a war in which the SOS unit served as shock troops. And it was apparent in their fluency with racial invective such as they inflicted on Richmond and many others. (I once heard an SOS officer, making a routine announcement about a traffic matter over the loudspeaker of his vehicle, address the residents of Stateway Gardens this way: “Listen, you hood rats.”)

Yet it was not their overt racism that brought down the SOS officers. Nor is that how their crimes are categorized. Their racism only made news as a coda to the scandal, when some nine years into Finnigan’s incarceration, a photograph became public in court documents that had been taken in a police station in 2003 or thereabouts. It shows Finnigan and Timothy McDermott, another member of SOS, holding rifles while kneeling over a Black man with antlers on his head and his tongue hanging out — their hunting trophy.

The photo provides a glimpse of something at once fundamental and elusive: the practice within the CPD of racism as sport. Officers so disposed have enjoyed license to toy with Black and brown Chicagoans. The performance of racial contempt is not incidental to some other purpose. It’s the point of the exercise, an end in itself, a perverse source of pleasure.

The U.S. Department of Justice report on its investigation of the CPD, undertaken in the wake of the police murder of Laquan McDonald, speaks to the failure of the department to identify and discipline patterns of racist behavior: “We have serious concerns about the prevalence of racially discriminatory conduct by some CPD officers and the degree to which that conduct is tolerated and, in some respects, caused by deficiencies in CPD’s systems of training, supervision and accountability.”

The report notes elsewhere that the sort of racist mindset reflected in the Finnigan hunting trophy photograph “has desensitized many officers from the humanity of the people of color they serve, setting the stage for the use of excessive force.”

In the years since the January 6 insurrection, the Chicago Police Department, like other law enforcement jurisdictions across the country, has been forced to acknowledge the problem of white supremacists in its ranks. It has, however, been slow to address the problem. Now the issue is receiving renewed public attention due to a Chicago Sun-Times series on the failure of CPD to terminate officers whose names appeared on Oath Keepers membership rolls made public by NPR in 2021.

In response to the Sun-Times series, Police Superintendent Larry Snelling, who assumed office in September, has said that the department will undertake “stringent” and “thorough” investigations of suspected “members of hate groups” and “will do everything we can to remove those members from our ranks.” A recently established citizens oversight panel — the Community Commission for Public Safety and Accountability — has adopted a policy banning officers from being active members of certain hate groups. And Cook County State’s Attorney Kim Foxx has placed active CPD members affiliated with the Oath Keepers on the “no call list” of officers barred from testifying in Cook County criminal cases. 

Predictably, a dissenting voice has been that of John Catanzara, president of the Chicago chapter of the Fraternal Order of Police. While he agrees that “there’s things officers should be disqualified over,” he has characterized the proposed remedies as “a broad brush” and argued that officers should be judged by their actions rather than solely on the basis of their affiliations. 

He has a point. Whatever the merits of monitoring officers’ political affiliations and social media activity — both of which raise possible First Amendment issues — the department has failed to make use of the most powerful tool at its disposal for the purpose of identifying white supremacists on the force: pattern analysis of citizen complaints. Such analysis can reveal racist behavior that is in plain sight, and it can illuminate the systemic conditions that allow racists to operate with impunity as police officers. For both purposes, the 25-year career of Chicago police sergeant Piwnicki, who has no known affiliation with extremist organizations, is instructive.

“Unfounded” Allegations

The 2001 incident at Stateway Gardens occurred early in Piwnicki’s career. A complaint filed against him with the Independent Police Review Authority, or IPRA, more than a decade later illustrates a pattern repeated again and again throughout his career. The occasion was a backyard family barbecue in the Englewood neighborhood on May 5, 2012. The alleged victim was 37-year-old Kendall McClennon. As McClennon tells the story, he stepped out into the alley to relieve his bladder at about 7:15 p.m. Moments later, Piwnicki and two other officers — Brian McDevitt and Thomas Carey — burst into the yard with their guns drawn. Piwnicki did a takedown of McClennon, forced him down on a wooden deck, handcuffed his hands behind his back, and struck him repeatedly.

McClennon’s 39-year-old sister Cicely took out a camera to document what was happening. One of the officers seized the camera and cuffed her hands behind her back. McClennon, face down on the ground in handcuffs, asked the officers to leave his sister alone. Piwnicki responded by discharging his taser into McClennon’s body. When the taser malfunctioned, he reset it to “dry stun” — a mode in which it functions as a “pain compliance” tool without incapacitating the subject — and applied it to McClennon’s ear. Throughout the incident, McClennon alleges, Piwnicki directed racial invective at him and his family, at one point calling them “animals.”

Piwnicki tells a different story: While patrolling the neighborhood, he and his partners observed McClennon urinating in an alley. When McClennon saw the police car approach, he fled. The officers gave pursuit and entered McClennon’s cousin’s backyard. McClennon resisted arrest. When Piwnicki attempted to handcuff him, a struggle ensued, in the course of which McClennon’s nails cut Piwnicki’s wrist.

After Piwnicki tased him, McClennon no longer resisted. When they searched him, the officers found a dime bag of marijuana. They arrested him and charged him with aggravated battery of a police officer, resisting an officer, possession of cannabis, and urinating in the public way. The aggravated battery charge is a Class 2 felony carrying a three- to seven-year sentence.

That evening, Cicely filed her formal complaint. Two years later, on May 29, 2014, IPRA issued the results of its investigation. The investigator, Alice Chico, determined that the allegations of excessive force against Piwnicki were “unfounded.” That is, she found that the alleged misconduct did not occur. Chico’s analysis focused on the accounts given by McClennon’s sister and his cousin who was the host of the barbecue. (Contacted on the night of May 5, 2012, at a hospital where he was being assessed for injuries, McClennon declined to be interviewed by IPRA.) In her interview, Cicely stated that when her brother was handcuffed on the ground, Piwnicki punched him five times in the face, kicked him once in the abdomen, and tased him. She also stated that Piwnicki smelled of alcohol and that officers took her digital camera but did not inventory it or return it.

The cousin was inside the house when the police entered the backyard. When she went to her back door, she found that three of her guests, including McClennon, were handcuffed. She says she saw Piwnicki strike McClennon once on the left side of his face. They struggled, and Piwnicki tased him. She also stated that as Piwnicki escorted McClennon out of the yard, he slammed him against the back gate.

Chico wrote that the two witnesses “gave conflicting accounts of the incident,” that there was no evidence McClennon had suffered any injuries, and that Piwnicki was within department policies when he tased McClennon, “who was an assailant.” She also noted that Piwnicki passed a Breathalyzer test and that Cicely’s camera was, in fact, inventoried.

“Based on the totality of the circumstances surrounding this incident,” she concluded, “there is no evidence to establish that the incident occurred as alleged.” In light of her finding of “unfounded,” she did not find it necessary to obtain reports from Piwnicki and the other officers on the scene.

The 2001-02 investigation of the Traylor complaint by OPS and the 2012-14 investigation of the McClennon complaint by IPRA share two characteristics that make findings of “not sustained” and “unfounded” all but inevitable.

First, the investigator’s assessment of credibility is heavily weighted toward the police: The credibility of officers is assumed, while that of complainants and witnesses is sharply questioned. In neither instance does the investigator find it necessary to interview the accused officers; a written statement suffices. In the case of community members, by contrast, any inaccuracies or inconsistencies, no matter how marginal to the alleged misconduct, are seized upon to impeach credibility.

Second, the investigators do not consider the officer’s disciplinary history in assessing the allegations in the particular case. This is not an oversight. The collective bargaining agreement between the police union and the city in force at the time effectively barred the agency from employing even the most rudimentary pattern analysis — e.g., reviewing a past history of complaints alleging similar misconduct — as an investigatory tool. In negotiations with the union, Chicago, like a number of other cities, had over the years made concessions with respect to discipline in lieu of increasing compensation and benefits. As a consequence, an accused officer’s disciplinary history could only be considered at the point at which the investigator, having sustained the complaint, was determining what discipline to recommend, and only past “sustained” complaints could be considered for this purpose.

At the time of the 2012 incident, McClennon, a man in his late 30s, had no criminal record. Piwnicki, by contrast, had accumulated a total of 87 complaints over his 14-year career, putting him close to the top of the list of active officers with the most complaints. In McClennon’s criminal trial, the defense demonstrated that in 42 instances, the complaints allege the same pattern of misconduct by Piwnicki: Approaching people of color, they argued, he subjected them to physical and verbal violence. When they challenged his behavior, he imposed false charges. Each of these elements of abuse — excessive force, racial verbal abuse, and false arrest — figured in the McClennon complaint. Yet those patterns were not considered by the investigator. She assessed the complaint in isolation and concluded that there was no way to determine whether the alleged abuse had occurred.

In 2014, in Kalven v. City of Chicago, a case in which I was plaintiff, the Illinois Appellate Court ruled that completed police misconduct investigations are public information under the Freedom of Information Act. Prior to that, the disciplinary histories of officers and underlying investigative files known as complaint registers, or CRs, were hidden from the public behind a heavily defended wall of official secrecy. Occasionally, CRs were produced in discovery in civil rights lawsuits, but under protective orders that barred the parties from sharing them with the public.

The victims of abusive policing practices had no doubt about the realities, and, despite the long odds, some brought formal complaints, but because the investigations of those complaints were kept from the public, it was impossible to document the nature and extent of the phenomenon.

According to CPD records, Piwnicki currently has 99 complaints, putting him in the 99.9th percentile of officers with the most complaints.

In the wake of the Kalven decision, that changed. The Invisible Institute created the Citizens Police Data Project, a public database that currently contains information about 250,000 investigations of allegations of misconduct and the disciplinary histories of 34,000 officers.

According to CPD records, Piwnicki currently has 99 complaints, putting him in the 99.9th percentile of officers with the most complaints.

Contacted through the Chicago Police Department, Piwnicki declined to be interviewed or provide comment.

It also should be noted that there is a large ghost phenomenon of individuals who believe they have been abused by the police but do not file a formal complaint. Studies by the Department of Justice’s Bureau of Justice Statistics based on national survey data indicate a ratio of roughly one complaint for every eight people who believe they were subjected to excessive force by the police. There is reason to believe that ratio is conservative, at least with respect to populations most affected by unconstitutional policing.

Nothing to See Here

Although these aggregate numbers are stunning, they do not fully reveal the realities. To grasp the racist nature of the abuse and the institutional failure to identify and discipline it, it is necessary to examine the CR investigations themselves. This is not only a matter of capturing concrete narrative detail; it is also necessary because of the manner in which CRs are categorized. When, as is often the case, a complainant makes multiple allegations of abuse, the CR is coded according to the investigator’s judgment as to the most serious of the allegations. As a result, allegations of racist behavior tend to disappear from an officer’s disciplinary profile, for excessive force will generally trump and thereby bury allegations of racist verbal abuse. But the difference between beating someone up and beating someone up while spewing racist invective is essential. Indeed, in another context, these would be elements used in identifying a hate crime.

Here is a sampling of complaints against Piwnicki and the outcomes of investigations of those complaints. Although none of these complaints were sustained by investigators, the pattern they form is powerful evidence.

August 13, 2000
A Black pregnant woman alleged she was stopped at gunpoint by an unidentified partner of Piwnicki, who forced her to get on the ground. She was handcuffed and placed in the back of a squad car, where she got into a verbal argument with Piwnicki, who slapped her face. Piwnicki’s partner said, “We don’t like black pregnant women,” and made other derogatory statements of a racist and sexist nature.
Not sustained. (CR 266694)

August 13, 2000
A Black man alleged Piwnicki and officer Louis Gade approached him in an unmarked police car in an alley and told him to come to the car. When he ignored the officer’s request, Piwnicki sprayed him in the face with pepper spray. Gade then hit him in the face with a flashlight. He fell to the ground. Piwnicki and Gade repeatedly kicked him. He was handcuffed and taken to the station. The officers refused his request for medical treatment.
Not sustained. (CR 265117)

October 26, 2000
A Black man alleged that he was walking to a restaurant when he was stopped by Piwnicki and other officers. Piwnicki searched under his car and claimed to find narcotics. He was arrested, handcuffed, and put in a squad car. While cuffed in the car, Piwnicki punched and slapped him in the face and punched him in the stomach.
Not sustained. (CR 267343)

November 27, 2000
A Latino man alleged that he was walking down the street when Piwnicki and two other officers stopped him and searched him for drugs. Piwnicki slapped him in the face, one of Piwnicki’s partners elbowed him and also slapped him in the face, and the third partner called him a “fucking Puerto Rican.” A bystander witnessed the incident and reported it to the OPS.
Not sustained. (CR 267496)

March 8, 2002
A Black man alleged that he was walking with his cousin, sister, and girlfriend when they were approached by a police car. Piwnicki and Robert Smith exited the car with their guns drawn. Smith pushed him against a wall, handcuffed him, and put him in the squad car, where Piwnicki punched him in the face. The officers accused the man of being involved in a car accident that caused damage to a police vehicle. When he denied the allegations, one of the officers said, “This one is going on you.” When he asked why he was being falsely charged, one of the officers said to him, “Shut up you black bitch. You are a waste of sperm, nigger.”
Not sustained. (CR 279202)

March 23, 2002
A 13-year-old Black girl alleged that she was playing with her brother and cousins when she threw a stick in the street as Piwnicki and Smith were driving by. The officers exited their car. Piwnicki approached her, pushed her face with his hand, grabbed her arm, and pulled it behind her back. He threatened to “smack the shit out of her” and called her and the other children “cocksuckers.”
Not sustained. (CR 279250)

June 2, 2002
A Latino man alleged that he was driving with his wife, father, and brother when he was stopped by Piwnicki and Smith. Piwnicki told him to “put his fucking hands up,” grabbed him, yanked him out of his car, and handcuffed him. When he asked what was going on, Piwnicki told him “to shut the fuck up” and smacked him on the back of his head. When he attempted to read Piwnicki’s badge, Piwnicki told him not to look at him. Piwnicki also told the man’s wife to “shut the fuck up” and ordered her away from the car. The complainant, who was not arrested, identified the license plate of the car driven by Piwnicki.
Not sustained. (CR 281125)

August 13, 2002
A Black woman alleged that she was standing inside the gate of her apartment building when Piwnicki approached and asked her where she lived. She replied, “I live here where I am standing.” “You better tell me, bitch,” he said and threatened to throw her to the ground and arrest her for trespassing. She countered that he could not do that because she was not trespassing. He grabbed her by the arm, called her a “cunt,” threatened to put marijuana on her, and handcuffed her. “You had to get fucking smart on me,” he said. “Now you are going to jail.” When she asked why he put the handcuffs on so tight, Piwnicki said, “Shut up you cunt nigger bitch,” and slapped her face. Piwnicki then put her in his squad car. “Why did you put your hands on me?” she asked. Piwnicki stopped the car, grabbed her hair, and struck her repeatedly in the face. Later, at the police station, when she asked to speak to a sergeant, Piwnicki grabbed her by the neck, threw her down on a bench, and said, “Shut up you fucking cunt.” Piwnicki falsely charged the woman with drinking on the public way. Witnesses unrelated to the woman corroborated her allegations of physical and verbal abuse. The victim received medical treatment for her injuries. The investigator sustained the allegations against Piwnicki. During the command channel review — the process by which supervisors review a complete complaint investigation into allegations against an officer under their command — Piwnicki’s supervisors objected to the findings, and the findings were overturned.
Sustained finding overturned. (CR 283229)

May 10, 2003
The complaint alleged that three Latino men and two Latina women were parking their car when the drivers in two vehicles behind them honked their horns. After parking the car, one of the men was approached by Piwnicki, who was in plainclothes. “What the fuck,” he said. “Why are you rolling your eyes?” The man replied he didn’t know Piwnicki. “Shut the fuck up, wetback,” said Piwnicki. The man told Piwnicki to leave them alone. Officer Jennifer Chapin Mayoski, who was also in plainclothes, approached and said, “You don’t know who you are fucking with,” and drew her gun. When the complainant started to write down the license plates of the police cars, Mayoski told Piwnicki they should go. As Piwnicki was leaving the scene, he punched the man in the face, breaking his glasses. A second Latino male in the car corroborated the allegations of the first. He also reported that as Piwnicki was leaving, he punched him in the jaw and said, “You ain’t going to do nothing! Fuck you, you spics, you wetbacks.” The two female passengers corroborated the versions given by the two men and further noted that both Piwnicki and Mayoski called them “fucking Mexicans” and “stupid Mexicans.”
Not sustained. (CR 289333)

October 5, 2003
According to the complaint, two Black men were approached by Piwnicki and officer Keith Rigan after one of them was in an altercation with a third party. They alleged that Piwnicki and Rigan asked the third party if they were having a problem with these “niggers and animals.” The officers then punched one of the men in the neck, knocked him to the ground, picked him up, and kneed him in the groin several times. The other man alleged that he was punched, knocked to the ground, and kicked. Both men received medical treatment for their physical injuries.
unfounded. (CR 292855)

June 17, 2007
A Black woman alleged that Piwnicki and officers Russell Willingham and Anthony Martin ordered her and two companions to get out of their parked car and pick up litter around the vehicle. In the course of the interaction, the officers called them “morons,” “ignorant,” and “nigger.”
No affidavit. (CR 1006665)(No action was taken because the complainant did not execute the required affidavit.)

June 17, 2007
A half hour after the incident above — a Black woman alleged that Piwnicki said to her, “Pick up this fucking trash from the ground, this is what niggas do, you fucking moron.”
No affidavit. (CR 1006666)

February 20, 2011
A Black man alleged that he was standing on the street giving his mother a hug when Piwnicki and officer Daniel Sullivan drove up in an unmarked squad car. Piwnicki ordered the man over to the car, saying, “Get over here, you fat greasy nigger.” When the victim responded “wow” and failed to head toward their car, Piwnicki and Sullivan exited their car, chased the man, and knocked a bottle of juice out of his hands. He was criminally charged.
Not sustained. (CR 1043517)

May 18, 2011
According to the complaint, a Puerto Rican woman was driving through an alley en route to a medical appointment when she was stopped by Piwnicki. When she acknowledged that she was cutting through the alley, Piwnicki told her that she was breaking the law. “You people should go back to Mexico,” he said. “Because of people like you, this City is messed up.” The complainant then exited the alley, parked her car, and returned to the area to request Piwnicki’s name and badge number. Piwnicki responded by handcuffing her tightly. He put her in the back of his squad car and berated her: “You people only understand beatings.” When she informed him the handcuffs were too tight, he responded, “I don’t care what the fuck they are.” He also threatened her with the loss of her job as a special education teacher, saying he was going to contact Chicago Public Schools and inform them of her arrest. She was eventually released from Piwnicki’s custody and received medical treatment for the slight fracture she sustained to her wrist from the handcuffs Piwnicki placed on her too tightly.
Not sustained; unfounded. (CR 1045507)

Notwithstanding the long odds of achieving redress, the complainants, all of them Black or brown — and presumably unacquainted with each other — independently filed strikingly similar complaints against Piwnicki alleging excessive force coupled with racist and sexist verbal abuse. The pattern that emerges has probative value, despite the fact that it cannot be determined, in the absence of further investigation, whether the allegations in any given case are true. In a high-functioning accountability system, that pattern would have been discerned early in Piwnicki’s career and prompted appropriate interventions. In a system committed to removing white supremacists from the force, analysis of that pattern would be a priority. In the system we currently have, it has been willfully ignored.

Beyond Impunity

The systemic conditions that have allowed Piwnicki to operate with virtual impunity throughout his career despite these multiple accusations are further illuminated by the rare instances in which complaints against him have been sustained. There are seven such cases:

July 15, 2000
A Black female CPD sergeant filed a complaint alleging that Piwnicki and two other officers were insubordinate, inattentive to duty, and disobeyed a direct order. Piwnicki received a reprimand.
(CR 2000-0263967)

May 6, 2005
A CPD lieutenant initiated a complaint against a CPD police officer for engaging in a bar fight while off duty, in the course of which he was accused of injuring a Black man and calling him a “fucking nigger.” The altercation resulted in the officer’s arrest by the Lake Geneva Police Department. Piwnicki, who was not present at the scene of the incident, subsequently bailed the officer out. Found to have violated a rule requiring that CPD officers file a report when a member of the department is under investigation by a law enforcement agency other than the CPD, Piwnicki received a reprimand.
(CR 297735)

September 29, 2005
A Black husband and wife were at the county courthouse to attend a court date for a relative. The wife alleged that while she was attempting to step into the elevator, Piwnicki (who was wearing a shirt that covered his uniform) slammed his hand across her chest and moved her away to create space for his partner to step onto the elevator. When the woman’s husband verbally confronted Piwnicki, he responded, “Shut the fuck up you coon … You fucking cluck.” Piwnicki then pushed the woman and started swinging at her husband. Piwnicki and the husband attempted to strike each other. During the encounter, Piwnicki grabbed the husband by the neck and called him a “nigger.” Cook County deputy sheriffs separated the husband from Piwnicki and held him against the wall. Even after the husband was physically restrained by deputy sheriffs, Piwnicki continued to attack him saying, “I’ll see you in court you fuckin coon, and I’m going to see to it that you will pay.” In addition to the wife and husband reporting these events, several deputy sheriffs corroborated the portions of the incident they witnessed. Piwnicki followed through with his threat and falsely charged the husband with making threats to an officer. The criminal charges were ultimately dismissed. The allegations made by the couple were sustained, and Piwnicki was suspended for 20 days.
(CR 308792)

October 12, 2005
Piwnicki had a verbal and physical altercation with a Black male CPD officer. He was in the process of arresting two Black women, when the officer, who was in plainclothes, approached him and asked to see his identification. Piwnicki refused. “I don’t know who the fuck you are,” he is alleged to have said to the officer, who proved to be Sgt. Ronald Watts. (It would later be established that Watts was the leader of a criminal enterprise that preyed on residents of the public housing development where the confrontation between the two officers occurred.) Piwnicki and Watts grabbed at each other. “I know how you motherfuckers roll,” Watts is alleged to have said. “You’re not on the plantation anymore.” The Internal Affairs Division found that the two officers engaged in an unjustified altercation. Each was suspended for 10 days.
(CR 309085)

July 10, 2006
A Black female CPD officer filed a complaint on behalf of her son. She alleged that her son was sitting in his yard when Piwnicki approached him. He told him, “Come here, you fucking Negro,” then slapped him in the face repeatedly and placed an empty alcohol bottle that was laying on the street in his back pocket. When the man removed the bottle from his pocket and threw it on the ground, Piwnicki kicked him in his groin area and repeatedly called him “nigger.” Piwnicki falsely arrested the complainant for drinking on the public way. The man’s mother observed the incident and heard Piwnicki call her son a “nigger.” The investigator sustained the allegation that Piwnicki verbally abused the man, finding there was “sufficient evidence to support the allegation that PO Piwnicki used profane and derogatory language toward the victim.” Piwnicki received a reprimand.
(CR 306868)

June 10, 2010
A Black woman was sitting on the porch of her home with several neighbors. From his squad car on the street, Piwnicki is alleged to have addressed them as “motherfuckers” and ordered them off the porch. “Well, sir, I live here,” she responded. Piwnicki is then alleged to have threatened “to lock her black ass up.” A male neighbor approached the porch and encountered Piwnicki, who is alleged to have said, “You gonna run, nigger?” “No,” he replied, “why would I run if I haven’t done anything?” Piwnicki got out of his vehicle, grabbed the man, and handcuffed and arrested him. As he left, Piwnicki told the woman on the porch, “When I come back, I’m locking your black ass up, too.” The woman called her landlord, a CPD officer, who advised her to call a sergeant to file a complaint. When the sergeant arrived, he refused to take her complaint. Piwnicki received a 10-day suspension, and a complaint against the sergeant was also sustained.
(CR 1037059)

March 15, 2019
Piwnicki failed to serve notice on the person named in an order of protection. The individual who had secured the order filed a complaint against Piwnicki for failure to provide service. The complaint was sustained, and he was given a reprimand.
(CR 2019-0003252)

Putting aside the last of these complaints, the other six sustained complaints against Piwnicki share a common feature: All involve other law enforcement personnel as antagonist, complainant, or witness. Under those circumstances, the disciplinary system responded. What it has proved unwilling to address are the scores of complaints alleging racist abuse by Piwnicki filed by Black and brown Chicagoans without any connection to law enforcement.

Despite the massive public record describing Piwnicki’s racism, the only change in his status within the CPD over the course of his career is that he was promoted to detective in 2013 and then to sergeant in late 2017. The latter promotion came more than two years after the political upheaval precipitated by release of the video of the police murder of McDonald and a year after the release of the Department of Justice’s report on its investigation of the CPD in which it expressed “serious concerns” about patterns of racially discriminatory conduct by CPD officers and found that “the impact of CPD’s pattern or practice of unreasonable force falls heaviest on predominantly black and Latino neighborhoods.”

Since his promotions, Piwnicki has had relatively few CRs. An obvious reason for this is that the nature of the job is different. There is less direct contact with community members. At the same time, as a sergeant, he remains in a position to do harm. It is a widely shared belief among those working to advance police reform that sergeants as first-line supervisors are the key to changing institutional culture. By the same token, Piwnicki’s promotion to sergeant puts him in the position to perpetuate the ugly racist subculture within the department that he has embodied throughout his career.

Piwnicki’s promotion to sergeant puts him in the position to perpetuate the ugly racist subculture within the department that he has embodied throughout his career.

Just as the Office of Professional Standards was replaced by the Independent Police Review Authority in the wake of a police scandal, the IPRA was replaced in 2017 by the Civilian Office of Police Accountability in the wake of the police murder of McDonald. Over time, the quality of COPA’s investigations of misconduct complaints has significantly improved, but it remains constrained by the police union contract from doing the sort of pattern analysis necessary to effectively curb the immense damage to public trust caused by officers such as Piwnicki.

Although those constraints have been relaxed somewhat, they continue to hobble effective pattern analysis. Under the most recent version of the union contract, negotiated last year, COPA and the Bureau of Internal Affairs may consider complaints up to seven years old alleging excessive force, racial verbal abuse, and criminal conduct for the purpose of assessing credibility. They may only consider other categories of complaints if they are sustained. And under no circumstances can they consider complaints that have been determined to be “not founded.”

Fraternal Order of Police president Catanzara’s argument that officers should be judged by their actions is impeached by his union’s long history of using collective bargaining to block such accountability. Applied to Piwnicki, the seven-year look back would not even begin to reveal his career-long pattern of behavior that results in complaints of racial abuse by Black and brown Chicagoans.

If the administration of Mayor Brandon Johnson is serious about addressing racism within CPD ranks, it will go beyond investigating officers affiliated with extremist groups and will prioritize vigorous pattern analysis of citizen complaints, while taking steps to remove the constraints imposed on such analysis by the police union contract. Unless and until it does, the career of Piwnicki will stand as the cautionary tale: An officer who, for over a quarter century, has been allowed to openly act out his racial hostilities by an oversight system that has only seen fit to discipline him when his abusive behavior spills over onto others in law enforcement.

Toward the end of his tenure, I asked Chicago Police Superintendent Eddie Johnson what he had learned since assuming leadership of the department. A Black officer who had not sought the position, he had been appointed by Mayor Rahm Emanuel in the aftermath of the McDonald revelations.

Johnson replied that he had been surprised above all by the intensity of the racism within the department — an unexpected observation from a Black officer who had risen through the ranks — and he expressed the hope that the problem would be resolved over time by the retirement of certain older officers.

Piwnicki refutes that hope. As he approaches the end of his career, his complaint history is a teaching. To the extent that the department has allowed him to abuse people of color with impunity while promoting him first to detective and then to sergeant, his career stands as a model for others disposed to engage in racial abuse within their job descriptions as Chicago police officers.

In response to inquiries from The Intercept, the Chicago Police Department provided the following statement:

The Chicago Police Department’s members are held to the highest standard and expected to conduct themselves with the utmost professionalism both on and off duty. Per CPD policy, all members are prohibited from engaging in any illegal discrimination against an individual or group on the basis of any protected class under federal, state and local law.

We have also been working to implement a strengthened policy prohibiting members from participating, supporting and associating with criminal and bias-based organizations. We are updating this policy in close collaboration with the Community Commission for Public Safety and Accountability (CCPSA), which recently voted to approve the revised policy. 

Allegations of Department members violating CPD policy are thoroughly investigated. During the course of these investigations, members are afforded due process. Members found in violation will be held accountable based on the findings of these investigations.

The post Why Does the Chicago Police Department Tolerate Abusive Racists in Its Ranks? appeared first on The Intercept.

Head south on state Highway 96, past a stretch of soybean crops and tobacco fields, and you’ll arrive in Zebulon, North Carolina, population 8,665. There, on a quiet stretch of Industrial Drive, sits a nondescript commercial building. It’s easy to miss; the name on the front door is barely legible. But atop that humble three-acre lot lies a leading solution to the global plastic pollution crisis — well, according to the plastic industry.

The facility is home to the 24-hours-a-day, 7-days-a-week operations of Braven Environmental, a company that says it can recycle nearly 90 percent of plastic waste through a form of chemical recycling called pyrolysis. Traditional recycling is able to process only about 8.7 percent of America’s plastic waste; pyrolysis uses high temperatures and low-oxygen conditions to break down the remaining plastics, like films and Styrofoam, ideally turning them into feedstock oil for new plastic production.

The American Chemistry Council, the country’s leading petrochemical industry trade group, claims that chemical recycling will create a “circular economy” for the bulk of the world’s plastic, diverting it from oceans and landfills. Plastic giants have gone so far as to dub the process “advanced recycling,” but environmentalists say this is a misnomer because the majority of the plastic processed at such facilities is not recycled at all. In fact, researchers have found that the process uses more energy and has a worse overall environmental impact than virgin plastic production. Numerous companies have tried and failed to prove that chemical recycling is commercially viable.

Despite these challenges, lawmakers nationwide are now embracing the technology, thanks to a massive lobbying push from the ACC and other petrochemical groups. As of September, 24 states have passed industry-backed bills that reclassify chemical recycling as manufacturing. The change effectively deregulates the process, since manufacturing facilities tend to face less stringent guidelines than waste incinerators.

As one of only seven commercial facilities currently operating in the United States, Braven Environmental is at the vanguard of the growing chemical recycling boom. An Intercept investigation, however, found numerous issues at its Zebulon facility.

A review of meeting minutes, permit applications, and compliance documents reveals that Braven misled the public about the risks of its pyrolysis operation and has potentially endangered human health and the environment through “significant noncompliance” with hazardous waste management regulations. While the ACC has touted Braven as a sustainable success story, documents also show that much of the company’s pyrolysis oil was not converted into useful plastic or fuel — it was disposed of as highly toxic waste.

“Chemical recycling is really a greenwashing technique for burning up a bunch of petrochemicals in a new way, and it’s releasing tons of air pollutants into the environment,” said Alexis Luckey, executive director of Toxic Free NC, in an interview. “What we’re talking about is incinerating carcinogens and neurotoxicants in a community.”

“Hazardous Items, We Have None”

On April 8, 2019, the Zebulon Board of Commissioners held a joint public hearing with the town planning board to gather community feedback on several proposed construction projects. One of the developments on the docket was from a company called Golden Renewable Energy, based in Yonkers, New York. 

Golden Renewable — which changed its name to Braven Environmental in the North Carolina business registry in 2021 — was requesting a special use permit to “locate a refinery and the storage of flammable liquids” on a parcel of land zoned for heavy industry.

According to minutes from the hearing, Meade Bradshaw, former assistant planning director for Zebulon, explained that Braven must show the proposed development “will not materially endanger the public health, safety, or welfare” in order to be granted a special use permit. In response, Ross Sloane, Braven’s business development director, made a series of promises to this effect, painting the company as a safe, family-run operation.

“We’ve never had an incidence in an operation that’s been operating up in New York now for seven years,” Sloane said. “My entire family operates the machine, so I don’t want to lose sleep.”

While Sloane pointed to Braven’s operations in Yonkers as evidence of the company’s safety record, The Intercept’s review of New York State Department of Environmental Conservation records found no indication that the company’s facility in Yonkers has ever been legally permitted to conduct plastic pyrolysis activities.

An air quality permit completed on February 22, 2013, states that the facility’s function was the conversion of vegetable oil to biofuels — a far cry from advanced thermal decomposition of plastic waste. In July 2014, inspectors from the DEC visited the facility and observed plastic waste being accepted and processed without authorization. The company agreed to resolve the violations, pay civil fines, and apply for a modified permit to accept recycled plastics, but the permit was never completed. DEC staff inspected the site again in 2021 and confirmed that Golden Renewable had moved its processing equipment out of state. DEC public records did not contain any additional permit information, and the Yonkers operation is Braven’s only other facility.

Public hearing meeting minutes also show Sloane told the town that Braven does not handle any hazardous materials. “Any kind of material trash, landfill items, hazardous items, we have none,” he said. “We do not contain any kind of hazardous materials. We have nothing that goes into a drain. … It’s all biodegradable.”

This turned out to be false. According to the Environmental Protection Agency’s Resource Conservation and Recovery Act database, Braven’s Zebulon facility generated and shipped 9.6 tons of hazardous ignitable waste and benzene in 2021 alone. In March of that year, Braven registered with the EPA as a large quantity generator: a facility that generates at least 1,000 kilograms per month of hazardous waste.

One list of warnings in a Braven air permit application reads like a toxicologist’s worst nightmare: The pyrolysis oil may cause cancer and genetic defects, as well as damage to organs, fertility, and unborn children. Other hazards included being “extremely flammable” and “very toxic to aquatic life” with “long lasting effects.”

Stephanie Hall, a parent of students at a nearby K-12 charter school, voiced concerns about air emissions during the hearing in Zebulon. She pointed out that the Braven lot would be adjacent to a community college and a public housing community, as well as only 780 feet from the charter school.

Sloane offered reassurance that Braven would “have no smells or emissions that are emitted to the air.” But when a planning board member asked for more information, he backtracked.

“It’s not a zero-emission process,” he clarified. “We do have an emission of CO2. It’s the exact same CO2 that comes through in your gas logs at your home.”

In response to The Intercept’s request for comment, Michael Moreno, Braven’s co-founder and chief commercial officer, wrote, “Braven strives to operate its Zebulon facility safely, responsibly and in compliance with its permits and regulatory requirements. Any discrepancies found are proactively resolved with the agencies involved.”

Braven’s special use permit application notes that the facility will have an exhaust stack but still characterizes the operation as a “closed loop process where all by products are fully contained without being discharged into the atmosphere.” An emissions test report prepared for Braven in March 2020 contradicts this claim, revealing that, in addition to CO2, the company’s plastic pyrolysis emits air pollutants such as carbon monoxide, nitrogen oxides, sulfur dioxide, and particulate matter. The report also found that Braven would emit an estimated 5.14 tons of volatile organic compounds per year. It did not specify which VOCs were present, though known human carcinogens like benzene and styrene are commonly found in emissions from petrochemical operations. On the day that I visited the Braven facility and adjacent lots, a faint acrid scent — like burning plastic — was detectable as far as 700 feet away.

On the day that I visited the Braven facility and adjacent lots, a faint acrid scent — like burning plastic — was detectable as far as 700 feet away.

Certain industrial facilities must annually report their chemical emissions for inclusion in the EPA’s Toxics Release Inventory. Since pyrolysis facilities are classified by the EPA as waste incinerators, they’re required to meet Clean Air Act guidelines but are excluded from TRI reporting requirements. This makes it difficult to assess the full health risks that Braven and other plastic pyrolysis units could pose to surrounding communities. In April, more than 300 environmental and public health organizations filed a petition with the EPA for the inclusion of waste incinerators in the database.

Ilona Jaspers, director of the Center for Environmental Medicine, Asthma, and Lung Biology at the University of North Carolina School of Medicine, has studied emissions generated from the burning of plastic waste. She called the TRI’s lack of pyrolysis and waste incineration data “a giant loophole.”

“I am all for finding good ways to make plastics into something usable, but the danger of generating air toxics in the process is considerable,” she said. “When we looked at the list of chemicals generated in the emissions of the plastics, a lot of it is not good. It’s kind of terrifying what gets generated when you burn plastics.”

In addition to air pollutants, residents raised the risk of potential water contamination. Hall, a professional engineer with a background in water resources, noted during the public meeting in Zebulon that the building slated to house Braven’s operations was built in 1994, so the lot would not have established stormwater control measures to treat any potential runoff. “You may want to include some sort of sand filter or proprietary stormwater device to help with any incidental spills,” she suggested, since the lot lies near a Federal Emergency Management Agency floodplain.

“When that industrial park was developed, there were no regulations for stormwater control,” Bradshaw, the former assistant planning director, told The Intercept. “Because they’re just occupying an existing building … from a site standpoint, it did not need to meet current regulations. But the commissioners, as part of the special use permit, could’ve made that a condition if they wanted to.”

At a subsequent session, the planning board unanimously recommended denial of the permit, based on “lack of evidence and testimony” showing Braven would not endanger public health and safety. But the planning board’s decision was “just a recommendation,” Bradshaw noted, and did not dictate the final decision. The Board of Commissioners unanimously voted to approve the special use permit on May 6, 2019, under the sole condition that masonry screening be conducted around the fuel tanks.

Braven was up and running by March 2020. Four months in, one major company had already bet big on the nascent operation’s long-term success: To further its “corporate responsibility” goals, Sonoco agreed to deliver its waste plastics to Braven for the next 20 years.

Significant Noncomplier

As part of an unannounced hazardous waste compliance inspection, an environmental specialist from the North Carolina Department of Environmental Quality, or DEQ, visited Braven’s Zebulon facility on September 26, 2022. The details of the resulting compliance report paint an alarming picture of a business operating in stark contrast to the health and safety promises made to Zebulon residents three years prior.

Inspectors cited Braven for numerous regulatory violations, including accumulating more than 400 containers of hazardous waste without a permit over the course of two years, as well as failing to “manage waste material in a manner to prevent it from discharging to the ground and storm drain system.”

The report details one incident in April 2022, when Braven sent 31,080 gallons of hazardous waste to a rented warehouse facility about one mile down the road. The transfer was conducted by a local trucking company, not a licensed hazardous waste transporter, and the warehouse was not permitted to receive such waste. The containers, which contained toxic chemicals like toluene and ethylbenzene, were then disposed of by a waste management service, though the transportation manifests for the disposal contained numerous inaccuracies.

The report also states that Braven generates light, medium, and heavy cut oils through plastic pyrolysis but has been unable to find a buyer for the heavy cut oils. As a result, the oil accumulated in a tank until it was eventually discarded as hazardous waste — twice. “The facility has been unable to demonstrate that it has been or can be legitimately used or recycled,” inspectors wrote.

“It’s an open question for a number of these facilities what it is they’re actually producing and what it’s used for.”

“There’s very little actual monitoring data from these facilities that are doing plastic pyrolysis,” Veena Singla, a senior scientist at the Natural Resources Defense Council, told The Intercept. “It’s an open question for a number of these facilities what it is they’re actually producing and what it’s used for.”

Even Braven’s purportedly recyclable products pose substantial risks. In June 2021, Braven announced a “long-term agreement” to supply pyrolysis-derived oils to Chevron Phillips Chemical. The press release did not state outright what the oil will be used as feedstock for, stating only that it will help Chevron “achieve its circularity goals.” However, ProPublica reported in February that one Chevron refinery in Mississippi is turning pyrolysis oil into jet fuel; according to EPA documents, air pollution from the fuel production process could subject nearby residents to a colossal 1 in 4 cancer risk.

The Intercept confirmed that some of the pyrolysis oil at this Chevron facility is indeed supplied by Braven: The chemical name and unique registry number listed in an EPA record obtained by ProPublica matches the details of Braven’s pyrolysis oils found in a North Carolina air quality permit exemption application. Additionally, in July 2022, the EPA published notice in the Federal Register of several new pyrolysis oils manufactured by Braven, including the same one on the EPA record.

Some residents within one mile of Braven were already at an increased risk for environmental carcinogens before the business moved in: One nearby census tract has worse particulate matter and ozone exposure, hazardous waste proximity, and air toxics cancer risk than over 90 percent of the country.

During the town hearing, Sloane had emphasized Braven’s “proactive” safety features; the special use permit application promised “daily inspections.” The compliance investigation, however, noted numerous deficiencies in emergency preparedness, including the absence of a fire extinguisher in the main room where containers of flammable waste were accumulating, some of which were left open and unlabeled.

According to the report, Braven staff admitted that personnel had not conducted weekly inspections, and they were unable to provide documentation that an engineer’s certification had been completed for a hazardous waste tank. Neither safety data sheets for the pyrolysis oils nor an emergency contingency plan had been completed with all required information, and the plan had not been distributed to local emergency authorities.

Additionally, inspectors observed during the visit that oil-contaminated stormwater was being pumped from a containment pit into a storage tote, but the connecting hose was leaking and “dark staining was evident” on the paved area between the pit and the storm drain.

Christopher Serrati, Braven’s manager of operations, told inspectors at the time that the concrete surrounding the storm drain had been “power washed in the past to remove staining.” The report noted an absorbent sock had been placed around the storm drain, and dark staining was present on soil adjacent to the property’s stormwater outfall, indicating hazardous waste may have been discharged to the ground.

Following an assessment period, the North Carolina DEQ cited Braven as a “significant noncomplier” and issued the company an “initial imminent and substantial endangerment order” on April 28, 2023. Braven has not received any state or federal penalties.

“This is an ongoing state lead enforcement matter, and EPA is currently not involved. EPA cannot further comment regarding the facility’s compliance or enforcement activities,” wrote an EPA spokesperson.

As part of a spill remediation plan, the DEQ required that Braven test both stormwater and soil from the contamination sites. Four of the contaminated stormwater samples tested positive for high concentrations of benzene, according to a report submitted to the agency in January. The report notes, however, that Braven believes the high benzene levels can be attributed to oils that were left in the sampling totes.

Top/Left: Braven Environmental received a special use permit to store flammable liquids on Industrial Drive in Zebulon, N.C. Bottom/Right: Birds sit atop a water tower in downtown Zebulon, N.C. Photos: Schuyler Mitchell/The Intercept

“In the past, all waste including dike water was shipped as hazardous waste and therefore, our crew did not realize the new operations and they inadvertently used the old empty oil totes for dike stormwater storage,” wrote Braven. The report states that going forward, “Braven will use only clean totes to store dike stormwater, if any, to avoid any potential hazardous waste conditions for the stormwater totes.” Braven has also installed an oil/water separator for stormwater discharge.

However, Braven’s claim that contaminated stormwater had previously been disposed of as hazardous waste appears to contradict notes in the initial compliance investigation. “Records dated April 2022 documenting shipment of rainwater … were provided after the inspection and document the material was previously disposed of as non-hazardous,” inspectors wrote.

Singla, of the Natural Resources Defense Council, called the storm drain discharge a “big concern.”

“We know that when there’s spills or leaks from industrial facilities, benzene can contaminate surface water, groundwater especially,” Singla said. “If there’s any built environment over that groundwater, the benzene can migrate up through the soil into indoor spaces and then contaminate the air, and people can be exposed that way.”

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Another report submitted by Braven in June notes “site-specific groundwater investigations have not been conducted,” though a contractor completed a reconnaissance survey of potential “wells, springs, surface-water intakes, and sources of potable water” within 1,500 feet of the facility and did not observe any apparent water supply wells. The contractor said it also contacted the county for more information on potential water sources in the area but did not receive a response.

In late August, a new remedial action oversight report was posted to the DEQ’s public records database. A state chemist’s review of Braven’s soil samples found “evidence of elevated hexavalent chromium and arsenic” in the site’s underlying soil. The state’s report attributes these findings to “a release of waste,” since the results were above the levels found in background samples. Both arsenic and chromium are considered occupational carcinogens by the Centers for Disease Control and Prevention.

The state offered Braven two remediation options: complete additional sampling and remove the contaminated soil, or close the impacted areas as a landfill. According to Melody Foote, a public information officer from the DEQ’s Division of Waste Management, Braven completed the additional sampling in late September. The DEQ is waiting for the sampling results and findings report, which is expected in three to four weeks.

Zebulon Commissioner Shannon Baxter called the noncompliance report “extremely disturbing” and noted that the public hearing testimony given in 2019 “appears to be in conflict with how Braven is actually operating.” Baxter was previously a member of the planning board and recommended denial of Braven’s permit in 2019. She noted that her views should not be interpreted as representative of the entire Board of Commissioners.

“I had my concerns as a member of the Planning Board, which is why we voted to recommend denial of the Special Use Permit,” Baxter wrote in a message to The Intercept. “Now, as a Commissioner, I am troubled about how these violations will affect the safety of our Community, especially the students attending school down the road from the Braven facility.”

Aggressive Expansion

A troubled record hasn’t deterred the petrochemical industry from throwing its weight behind Braven in recent months. The company has announced three major executive hires since April, including a chief operating officer, development director, and president and CEO. Heath DePriest, the new COO, previously served in leadership positions at Phillips 66, a petroleum company. A press release notes that CEO and President Jim Simon held roles at the refinery subsidiary of Koch Industries.

In June, Braven announced a new “strategic framework agreement” with another Koch Industries subsidiary, Koch Project Solutions, to “support Braven’s aggressive expansion plans.” The press release cited a new project to be built in the Gulf Coast region, which will allegedly produce 50 million gallons of pyrolysis oil per year.

Braven’s past expansion plans, however, have not materialized. In 2020, the company was the subject of a number of splashy headlines for its plans to invest $32 million in Cumberland County, Virginia, a rural region west of Richmond. Promising the creation of more than 80 new jobs, the project marked the first economic development opportunity for the county since 2009. Braven was slated to break ground in late 2021, but the year quietly came and went, until a sole public update arrived via an article in a Cumberland County newspaper: “Braven No Longer Coming.” The article, published in January 2022, did not explain why Braven had pulled out, and the company declined to comment at the time.

Braven has also been the subject of several legal actions. In 2015, sisters Joan Prentice Andrews and Jane Prentice Goff filed a lawsuit against Golden Renewable in New York, which also named four executives, including co-founders Moreno and Nicholas Canosa, as defendants. The suit claims that the sisters had collectively invested a total of $650,000 in Golden Renewable’s “bio-energy business” after Canosa had given the false impression that the company was “imminently signing a contract” to sell its biofuels to the Pentagon. The suit’s charges included wire fraud, mail fraud, and violations under the Racketeer Influenced and Corrupt Organizations Act. The case was settled out of court and voluntarily dismissed less than one month after the defendants were summoned.

The following year, a New York court ruled that Golden Renewable owed a different plaintiff over $10,000 in a civil debt lawsuit. The company was also released from a New York state tax warrant in 2018 after paying an outstanding balance of $16,522. In January 2020, Moreno was released from another New York tax warrant along with his wife, totaling over $300,000. After stepping down as Braven’s CEO in April, Canosa remains on the company’s board of managers. Moreno currently still serves as Braven’s chief commercial officer.

In April, Braven announced it had completed a financing round led by institutional investors Fortistar, Arosa Capital, and Avenue Capital, where Moreno also serves as senior managing director. While Fortistar and Arosa have investments in the energy sector, Avenue backs businesses in financial distress — or as it calls them, “good companies with bad balance sheets.”

But any bad balance sheets that Braven might have are unlikely to dissuade the numerous major petrochemical companies now banking on chemical recycling. Last year marked the ACC’s highest lobbying spend on record, up to nearly $20 million. That same year, the group shelled out more than $265,000 for Facebook and Twitter ads focused on promoting chemical recycling. One ACC ad effort included the sponsorship of a promotional video specifically for Braven, which features Canosa and Moreno alongside the ACC’s associate director of plastics sustainability.

Dow, Shell, and Chevron have all invested in developing their own plastic pyrolysis technology, while Exxon Mobil launched one of the largest chemical recycling plants in North America earlier this year, the first of 13 facilities it says it will launch by the end of 2026. Worldwide, the advanced recycling market is projected to grow by 3,233 percent in less than a decade, from $270 million in 2022 to more than $9 billion by 2031.

As chemical recycling spreads, we know from existing studies that the facilities are most likely to harm communities that are already vulnerable and marginalized.

“We found that these facilities are commonly sited in places where the surrounding community is disproportionately low income, or disproportionately people of color, or both.”

“We found that these facilities are commonly sited in places where the surrounding community is disproportionately low income, or disproportionately people of color, or both,” said Singla, who authored a report for the Natural Resources Defense Council on the environmental justice impact of chemical recycling.

Meanwhile, North Carolina could soon become the 25th state to take up the reclassification of chemical recycling. In April, three Republican state Senators introduced Senate Bill 725, which would amend the state’s waste management laws to explicitly note “solid waste management does not include advanced recycling.”

Braven, the only advanced recycling facility in North Carolina, was already exempt from obtaining a solid waste permit, according to Foote, the public information officer. Foote told The Intercept that since Braven processes “recovered material” — defined in state laws as “material that has known recycling potential, can be feasibly recycled, and has been diverted or removed from the solid waste stream” — it is not regulated as “solid waste.”

There has been one recent development that could slow chemical recycling down. In June, the EPA unveiled new proposed rules under the Toxic Substances Control Act that would establish reporting requirements for 18 substances derived from plastic pyrolysis. The agency would require companies to submit their chemical feedstocks for review so the agency can screen them for “impurities,” including PFAS, dioxins, heavy metals, bisphenols, and flame retardants.

The public comment period ended on August 19. The EPA is currently reviewing responses and is targeting early next year for follow-up action, according to a spokesperson.

The ACC, American Petroleum Institute, and Dow were among those who submitted comments urging the EPA to withdraw the proposed new rules.

“The ACC would welcome the opportunity to meet with EPA leadership to clarify misconceptions about advanced recycling,” the ACC wrote, “and invite Agency officials to an advanced recycling facility for a first-hand sense of their operations.”

In response to The Intercept’s request for comment, Ross Eisenberg, president of America’s Plastic Makers from the ACC’s Plastics Division, wrote in a statement, “Progress towards a circular economy can only be achieved with smart, cohesive approaches that avoid inconsistent and conflicting approaches by regulators. … ACC remains committed to working with EPA as a constructive stakeholder in the development of effective, practical, and responsible policies.”

Braven already appears to be pulling from the ACC’s playbook in its efforts to curry favor with state lawmakers. Democrat Deborah Ross, who represents the North Carolina congressional district that includes Zebulon, made a trip to Braven’s facility on August 25.

“I enjoyed meeting and learning from Braven’s innovative leaders and employees this morning in Zebulon,” Ross is quoted as saying in a Braven press release. “I look forward to applying the insights and information I gained during my visit to the important discussions in Congress about advanced recycling technologies.”

The Intercept emailed the compliance report to Ross’s office and asked whether Braven had mentioned the inspection and ongoing remediation efforts before, during, or after the representative’s visit.

“Congresswoman Ross does her best to accommodate invitations she receives from constituents and visits dozens of businesses in her district every year — these tours and constituent meetings should never be interpreted as expressing support for any particular company’s policy positions or business practices,” wrote a spokesperson. “She was not aware of this investigation before touring Braven, nor was it discussed during or after her visit. As a vocal supporter of environmental protections, she takes these allegations seriously and strongly supports NC DEQ’s work to hold companies in our state accountable for harmful waste or activities that threaten our people and our environment.”

The post They Promised “Advanced Recycling” for Plastics and Delivered Toxic Waste appeared first on The Intercept.

This article includes descriptions of sexual violence.

BUCHA, UKRAINE — The first Russian soldiers arrived several days after Bucha had fallen, looking for any men left behind. Anna, a widow, lived alone with her mother and teenage daughter.

“We have no men,” Anna told the soldiers, speaking in Russian. She warned her mother not to speak, worried that the soldiers would pick up on her distinct Western Ukrainian speech and mark her as a banderivka, a pejorative Russians often use to refer to Ukrainian nationalists or people they think of as such.

Anna showed the Russians her father’s death certificate, which noted that he had been born in Russia’s far east. “It’s what saved us,” she later told me.

She tried to appear welcoming, heeding a neighbor’s advice. “It’s going to be worse if you don’t let them in,” the elderly woman had warned. 

At first, the fact that they were three women alone did not feel uniquely threatening to Anna. Some of her neighbors were hiding male relatives in the basement — a far more dangerous proposition. In the early days of the occupation, Anna and her daughter, Maria, ventured into town, where they collected humanitarian aid from the local hospital and scavenged for melted ice cream in abandoned stores. They saw the mutilated bodies of men on the streets.

Anna’s friendliness seemed to appease the first group of soldiers — the “orcs,” as she and many Ukrainians routinely call Russian troops. After searching the home, they gave Anna and her daughter white armbands to wear, a signal that they had been “filtrated” and posed no threat to the occupiers. 

It wasn’t until the second group of soldiers barged into Anna’s yard when she realized that women, alone in the occupied ghost city, faced a different sort of risk. Their leader, a tall man in his early 20s, struck her temple with the back of his weapon and demanded oral sex. He also threatened to rape Maria, who was 13 at the time. Anna acquiesced to his threats to protect her daughter, she says, setting off a chain of events that would lead her own government to investigate her for collaboration with the Russian occupiers even as it eventually came to recognize her as a victim of wartime sexual violence.

I met Anna and Maria this summer at their home in Bucha: the city that first became synonymous with the horrors of Russia’s full-scale invasion of Ukraine. They spoke for hours, talking excitedly over one another, repeating a story they had told many times but rarely, it seemed, to a willing listener. (Anna and Maria are pseudonyms; I am withholding their full names to protect their privacy.) Well into the conflict’s second year, as Ukrainian forces seek to liberate territories that remain under Russian occupation, their story is emblematic of the fissures tearing through Ukrainian society. On the one hand, Anna’s ongoing ordeal is a product of enduring stigma around sexual violence. On the other, it reflects deep-seated social divisions that have plagued Ukraine for years and have only escalated amid the current conflict.

As survivors in each liberated town revealed fresh evidence of Russian atrocities, Ukrainians clamored for justice and nursed a growing vindictiveness against those perceived to have helped the occupiers. Ukraine’s President Volodymyr Zelenskyy set the tone, signing a sweeping and unforgiving law targeting collaborators just days after last year’s invasion.

In Bucha, neighbors summarily judged Anna’s wartime choices and shunned her as a traitor. But her interactions with Russian soldiers also posed a set of challenges for law enforcement officials, who have pledged that no crime stemming from the conflict will go unpunished. Local and international prosecutors have opened hundreds of investigations targeting Russian soldiers over wartime atrocities, including sexual violence. At the same time, local authorities have investigated thousands of Ukrainian citizens for collaboration.

At once a victim and a suspected collaborator, Anna was caught between overlapping quests for justice, facing neighbors — and a law enforcement apparatus — unable to reconcile those contradictions.

“People don’t understand exactly what collaboration is, and so they think that any contact with the enemy is collaboration.”

“At the beginning no one believed that the Russians were capable of such things. People believed that those under occupation were not exactly collaborators but were quite friendly with the Russians,” said Kateryna Ilikchiieva, Anna’s attorney, referring to the sexual assault her client described. “People don’t understand exactly what collaboration is, and so they think that any contact with the enemy is collaboration.”

The legislation passed last year further entrenched that belief. The law does not specifically prohibit relationships with Russians, but it does bar Ukrainians from sharing information that could have “serious consequences” with enemies of the state. In practice, any contact with Russians is fodder for speculation. “People understand even sex with Russian soldiers as collaboration,” said Alena Lunova, advocacy director at the Ukrainian human rights group ZMINA.

In Anna’s case, the suspicion alone prompted relentless questioning by multiple law enforcement agencies and the dismissal, for months, of her reports that she was abused. She is probably not alone; human rights advocates warn that some victims of Russian sexual violence are not speaking out because they fear being labeled and possibly investigated as collaborators.

In that sense, Anna’s story is a cautionary tale.

Anna walks in her backyard in Bucha, Ukraine, on July 6, 2023. During the occupation, Russian soldiers regularly came to her home and sexually abused her.

Pasha Giraffe

Long before Russian troops invaded Bucha in February 2022, Anna’s all-female household generated rumors. Neighbors had gossiped for years about her supposed drinking and promiscuity. They even whispered about Maria, who stopped going to school after the pandemic. The two lived with Anna’s 74-year-old mother in a disheveled house surrounded by a large, overgrown yard — on the margins of both the city and society, not caring much about what people said about them. Anna, with her blue hair and extravagant jewelry, looks at once much older than her 41 years and also like a sister to Maria, who dyes her hair bright red and wears artsy makeup.

While most of Bucha’s residents fled as the Russians advanced, Anna and her family stayed put. Her mother, who is largely bedridden, didn’t want to leave her home. Besides, they had little money and nowhere to go. They followed news of the incursion on TV until the power went out and the sky filled with smoke.

When the first group of soldiers came knocking, Maria noticed many of them seemed barely older than she was. She tried hard to seem friendly, thinking it safer.

The terror began in mid-March, when the leader of the second group of soldiers, called Pasha Giraffe by his compatriots due to his towering height, told Anna that some man would eventually have his way with Maria, so why not now. It had taken them three months to get to Ukraine, another soldier said; they missed women and “needed relaxation.” Anna insisted that Maria was a child and pleaded with the soldiers; she told them she knew they were good men. She agreed to sleep with them so they would not touch Maria. “I took everything on myself,” she told me.

After that, different groups of soldiers started coming by the house several times a day. They would announce themselves by firing shots in the air and hang around a pit fire in the yard, bragging about the people they had killed. Sometimes they would tell jokes and ask Anna and Maria to sing with them. Other times they were more menacing; Pasha Giraffe would cock his weapon when talking as if to remind them that he was in charge. Some of the soldiers were convinced that Anna and her daughter were spies for the Ukrainian army: They once burned Maria’s L.O.L. dolls — plastic figurines that are popular around the globe — because they believed that a laser light in the toys was a recording device. The soldiers were unpredictable and “twisted,” Anna and Maria said. They were always drunk, and most came to the house for sex.

Anna didn’t want her mother to know what was happening, so she never took them inside. Instead, one by one, they filed into a garage in the back of the yard, “like they were waiting in line for the bathroom,” Anna said. There were sometimes up to 10 men a day, she recalled, maybe 30 to 50 different soldiers in a two-week period.

Meanwhile, the other soldiers lingered in the yard with Maria. They put their arms around her waist, sometimes touched her legs, but never more, she said. She credits her mother, but also what she described as her wits. “I learned how to be around them,” she said. “We were playing nice, trying not to be rude. We played their game, said Zelenskyy is a jerk, Putin is great, telling them they were liberators.”

Anna believes most of the soldiers must be dead by now, but she said she would kill Pasha Giraffe herself if she could. She got to know some others by their nicknames as well: There was Sergeant, Shamil, Puppy, and Monarch, who broke down toward the end of the occupation and apologized to Anna. He didn’t know why they came to Bucha, he said, nor why they did what they did.

Her familiarity with the soldiers would come in handy, months later, when Anna was summoned to identify perpetrators of war crimes.

Maria sits in her backyard, where Russian soldiers would often linger during their occupation of Bucha, Ukraine.

Return to Bucha

Throughout the monthlong occupation of Bucha, Russian soldiers killed at least 501 people, according to a newly erected memorial that officials warn is incomplete. When the city was liberated in early April 2022 and residents returned, they found dozens of Ukrainian bodies in mass graves. There was a mound of partially burnt corpses in a shallow patch in Anna’s neighborhood. Others were scattered in the streets, some with their hands tied behind their backs, bearing signs of torture.

Not far from Anna’s home, on the leafy outskirts of the city, three brothers were found slain, at least one of whom had worked as a police officer. There was also a woman who taught the Ukrainian language, whom neighbors believe was targeted along with her husband and son for refusing to speak Russian to the occupiers. Some people who had fled found their homes looted and burnt; other homes were untouched.

Ira, a neighbor who lives down the street from Anna and asked me to use only her first name, was among those who returned. On April 4, the first day returning residents were allowed into the city, she walked through her yard, cradling her cat, as the executed bodies of her husband and two other male relatives lay on the ground nearby.

Ira remembers seeing Anna and Maria that day. Like other residents, she had heard rumors that the two were among those looting abandoned houses. Blurry photos and videos had circulated on social media, some taken surreptitiously through slits in neighbors’ fences. In one, Anna is pushing a wheelbarrow carrying a large piano. In another, she stands next to a resident whom neighbors also accused of looting; after the invasion, he killed himself because of the shame, Ira said. In yet another photo, Anna appears to be smiling.

The smile is what bothers Ira most. The day she returned to Bucha, she photographed Maria and Anna: the daughter flashing a wide grin, the mother a more subdued one. Ira said they had greeted her from down the street waving a victory sign. “We were so happy to see living souls,” Maria told me.

But to Ira and others, the fact that they were still alive, seemingly in good spirits, and that their house was mostly intact, were indisputable signs of their treason. “They are smiling at the same time that there are bodies in my yard,” she said. “Does a victim act like that?”

Rumors about Anna grew worse as more residents trickled back into the city. On social media, people referred to her as a “whore”; some asked for her address and threatened to kill her. Some neighbors said that she had been “in charge” of the looting, an offense they put on par with the actions of Russian soldiers. They also reported her to the police.

The looting is not all that neighbors blame Anna for. Some municipal workers who had stayed during the occupation and were beaten by soldiers accused her of riding in an armored vehicle with the Russians and guiding the soldiers to them. Neighbors speculated that two elderly residents, whose bodies were found piled among others not far from Anna’s home, were targeted by the Russians after yelling at her for looting. Some neighbors wondered how the soldiers had been able to identify the police officers, former members of the military, and community leaders they executed. “Someone told them,” said Ira. “Maybe it was Anna.”

As I spoke with Ira, an elderly woman stopped to listen, interjecting that the white armband the soldiers gave Anna was a sign “she was in their camp.” Another neighbor, who only gave her name as Svitlana, noted with scorn that Anna had taken to wearing earrings with a Ukrainian flag after the city was liberated. “She started working on her new image after the occupation,” said Svitlana. When residents hurled insults at her, she added, Anna told them that the Russians would be back. Her father was Russian, Svitlana stressed. “It’s in her DNA.”

Then there was the sex with soldiers. Her neighbors accused her of enjoying it. They told me about rumors that she drank with the soldiers, danced with them, and even fired their weapons.

Anna doesn’t deny taking the piano, which she said she found in the street and took into her home, with the help of some neighbors, after the Russians left the city. Many residents who remained in Bucha looted, she added, thinking that those who fled wouldn’t return. But she said she never gave the soldiers information about her neighbors, nor did she fire their weapons. She laughed when I told her what the neighbor said about her riding in an armored vehicle. And she says she spoke openly to her neighbors of having slept with soldiers, telling them she had done it to protect her daughter.

Ira doesn’t believe her. She noted that several other women in Bucha who were raped by soldiers had been killed afterward, while another woman who emerged from a cellar after the invasion looked barely alive and was unable to speak of the abuses she had survived. “That’s an example of how a person goes through violence, not smiling,” Ira said. Anna, she insisted, “either is a very good actress, or has a mental problem, but it’s not sexual violence.”

Anna next to the garage where she was sexually abused by Russian soldiers, in Bucha, Ukraine, on July 6, 2023.

Our Orcs

As Anna’s neighbors whispered, Ukrainian authorities began to investigate her. 

For several weeks, a steady stream of law enforcement officials came to her house. Throughout the visits, Anna took every chance to report the soldier’s abuses, repeatedly asking for a lie detector test to prove she was telling the truth. Nobody believed her, she said, because she wasn’t beautiful and because her clothes were dirty. “If you survived the occupation, you were a collaborator,” she said. “People who were not in the occupation just do not understand what happened here and what it was like.”

Ukrainian soldiers were the first to stop by, looking for weapons the Russians might have left behind. After that, most of the officials who came didn’t explain what they were looking for, and Anna didn’t always know what agency they were with. Photos Maria took on her phone show that several worked for the Department of Strategic Investigations, a special unit of Ukraine’s national police.

“If you survived the occupation, you were a collaborator.”

Someone from the local prosecutor’s office came too. Anna is not sure how the office learned of her ordeal but said the prosecutor, Roman Pshyk, was the only one who appeared to take her account of the sexual violence seriously. Pshyk accompanied her to a gynecological exam shortly after the city was liberated, where she was horrified to see many elderly women. In the waiting room, she thanked herself for having protected her mother in addition to Maria.

Pshyk, who has since left the office, told The Intercept that Anna’s case was one of more than 100 investigations into Russian crimes the prosecutor launched after Bucha’s liberation. “Any report of sexual harassment prompts a criminal prosecution investigation,” he said. “We can’t only take the position of the victim. We need evidence.” He added that his office had not yet heard the rumors about Anna and focused only on her testimony. He said the office later referred the case to national police and to Ukraine’s intelligence services, the SBU, though Anna didn’t hear from them until several months later.

When the local police came to her house, they found cans of spray paint in the garage and claimed that it was used by Russians to mark the homes of allies. Other officers searched every room in the house, rummaging through drawers and asking for receipts to prove that items weren’t stolen. Svitlana, the neighbor, told me that police shared photos of items they discovered at Anna’s home with other residents, in an effort to identify stolen property. The police did not respond to The Intercept’s questions.

Some of the officers were rough. In June last year, they demanded all the phones in the house, with no explanation. When Maria yelled at them and tried to film them, they snatched her phone and shoved and handcuffed her. Vitaliy Pelehatiy, a senior investigator with the Department of Strategic Investigations who was in charge that day, told The Intercept that officers were searching for stolen property and confiscated the phones as part of the investigation.

“They behaved like orcs,” said Anna. “Our orcs.”

A Slow Reckoning

Sexual violence goes substantially underreported virtually everywhere, but in conflict zones, the stigmatization of victims can be exacerbated. As Ukrainian forces seized back control of occupied territories last year, reports began to emerge of widespread sexual violence by Russian troops. The true toll may never be known, particularly in large swaths of the country that remain under occupation. Even in liberated areas, advocates caution that fear and persistent taboos about sexual violence make the scale of the abuses virtually impossible to assess. Often, they say, law enforcement agencies’ own biases and failures only compound the problem.

“Because it is a shame to talk about sexual violence, our society charges these people as if they’re not a victim but more of a perpetrator,” said Gyunduz Mamedov, a deputy to Ukraine’s previous prosecutor general and a rare, outspoken critic of the collaboration law. The suspicion with which sexual violence victims are routinely treated, he said, amounts to “a double victimization.”

Seven months into the war, in September 2022, Ukraine’s prosecutor general opened an office within the war crimes division to investigate and prosecute conflict-related sexual violence, or CRSV. It was a formal recognition of systemic abuses — and the fact that an array of Ukrainian agencies has failed to adequately support survivors.

It was around this time that Anna’s interactions with the authorities took a turn. “After that, they started to work on the sexual violence case more sensitively, or to work on it at all,” said Ilikchiieva, her attorney, a volunteer who was connected to Anna by a legal nonprofit earlier this year.

Late last summer, two SBU officers came to Anna’s house and handed her a document recognizing her status as a victim. In the months that followed, they asked more questions about her contacts with soldiers, and last November they finally gave her the polygraph she had been demanding for months.

In a two-hour interview with the SBU officers, she told me, they asked her a wide range of questions: Was she raped? By how many people? What about the looting? Did she work with Russia’s security services or kill anyone? It felt just as much an investigation into war crimes by the Russians as a probe into Anna herself. The officers warned her she would go to jail if she lied, and she answered all their questions. Afterward they drove her home, and a few days later an officer called to say she had passed the test.

The officers’ questions were the closest Ukrainian officials came to acknowledging that they suspected Anna of collaboration. The SBU did not respond to The Intercept’s request for comment. Anna’s lawyer said she was never notified of a formal investigation, though Anna’s various interactions with law enforcement authorities pointed in that direction. Despite the lack of formal charges against her to this day, Anna’s neighbors in Bucha have no doubt about her guilt. 

Iryna Didenko, the prosecutor in charge of conflict-related sexual violence at the office of the prosecutor general of Ukraine, acknowledged in an interview that “huge mistakes” were made in the first months after the invasion and that law enforcement officials were unprepared to deal with victims. Investigators often didn’t keep information confidential, she noted, at times sharing it widely within the community. When she came in, she took over cases involving sexual violence from other agencies and overhauled the investigative interview process. Now, there must be a woman on every team, and investigators have been instructed to speak to witnesses and victims more empathetically. Didenko launched pilot programs in Kherson and Kharkiv, territories that Ukrainian forces liberated last year, where multiagency teams were trained by international experts on best practices when dealing with conflict-related sexual violence.

Changing the culture of law enforcement, Didenko said, will take time. She also said there is a need for greater public education about sexual violence. She cited a USAID-led survey, published in May, in which most respondents noted that survivors of sexual violence “constantly face biased attitudes from Ukrainian society,” discouraging them from seeking help. “People will sometimes say a victim of rape may not have been against it,” she said. “But we are seeing changes; there is stronger support for victims.”

Didenko declined to comment on Anna’s case specifically, citing confidentiality, but Anna said Didenko visited her earlier this year and was shocked to learn about how investigators had treated her. A week later, the phones Anna had been trying to get back from police for nearly nine months were returned to her. 

By the end of last year, Didenko’s office had opened more than 220 sexual violence investigations; the office ultimately filed charges against Russian soldiers in 62 cases. Didenko acknowledged that there are likely many more incidents that are not on her office’s radar because of the stigma associated with sexual violence and fear, in some liberated areas, that the Russians might return. Earlier this summer, Ukraine’s prosecutor general Andriy Kostin introduced a new plan to strengthen protections for victims of wartime sexual violence. Russia often uses such violence, he wrote, “as a form of torture, a way to humiliate and break resistance.”

Bodies of civilians lie on Yablunska Street in Bucha, Ukraine, after the Russian army retreated from the city on April 2, 2022.

Splitting Society

The first calls for legislation to punish Ukrainian collaborators came on the heels of the 2014 Donbas conflict, during which Ukrainian separatists, backed by Russian troops, seized large swaths of land in the country’s east, in a precursor to the current war. Russia went on to unilaterally annex those lands following last year’s full-scale invasion. 

Vitaliy Ovcharenko, a prominent blogger-turned-soldier from the Donbas’s Donetsk region, helped draft a law in 2017 that would have imposed civil penalties on officials and administrators who had supported the separatist effort, including banning them from holding public office. In towns that remained under Ukrainian control, he told me, residents who had aided pro-Russian forces, at times leading to the abuse or death of their neighbors, roamed freely. It wasn’t uncommon for people who had been tortured to run into their torturers at local shops. “There was a crisis of justice in Ukrainian cities, and no one cared, no one was taking responsibility, and no one knew how to bring these collaborators to justice,” Ovcharenko said.

Ovcharenko’s proposal stalled after being introduced in Parliament in 2018. He and other local activists believed there was no appetite among Ukraine’s political leadership for criminalizing collaboration. He said that human rights advocates in Kyiv, some 500 miles away, accused him of being a traumatized veteran out for vengeance and warned that the proposed law had a violent, “vigilante” connotation to it. “They said, ‘We don’t need this confrontation in society.’ I told them, ‘If you left Kyiv and got to the ground, you would see that there are already confrontations,’” he said. “When society feels that there is no regulation from the government, it starts mass regulation by the people — and that ends with broken tires, broken windows, Molotov cocktails, and violence.”

Several parties, including Zelenskyy’s, introduced similar proposals in later years, but they never came up for a vote, partly because of Ukrainian legislators’ concerns that they would enflame social divisions. It was also unclear how collaboration would overlap with existing laws, including on treason.

Until last year: After the invasion, legislators voted Zelenskyy’s version into law so hastily that the legal advisers who evaluated the bill noted that they had done so under time pressure and “in extraordinary circumstances.” The result, many critics charge, was a “bad law” whose overly vague contours effectively criminalize a much broader range of behavior than originally intended. In some parts of the country, it could potentially apply to tens of thousands of people.

The law prohibits participation in political, legal, and law enforcement activities under the occupying authorities and the transfer of resources to them, as well as acts that lead to the “death of people or other serious consequences.” It bans Russian propaganda in educational institutions and the “public denial by a citizen of Ukraine of the armed aggression against Ukraine.” Penalties range from bans on holding government jobs to confiscation of property and prison sentences of up to 15 years.

The legislation leaves little room for the complexities of war and people’s need to survive it.

While its proponents argue that it serves as a deterrent, the legislation leaves little room for the complexities of war and people’s need to survive it. The law applies to Ukrainians providing Russian forces with information about military or civilian targets — as was the case with the agent who helped direct a Russian missile attack on a crowded café earlier this summer that killed 13 people. But it has also been used against local officials who remained in their posts under the new authorities, teachers showing up for work in occupied areas, and private citizens selling hogs or other goods to Russians or expressing opinions, including via social media, that are seen as supportive of the invasion.

So far, prosecutors have investigated more than 6,000 cases of alleged collaboration, according to Ukrainian government records. While many were tried in absentia, scores of people have been convicted already.

Some civil society groups and officials have called on the government to amend the law and apply it more selectively. Iryna Vereshchuk, the Ukrainian minister responsible for reintegration, warned against branding “everybody” who remained in occupied territory a collaborator. “Many people look to the future with fear because they don’t know if they fall under those categories,” she said last year. Tamila Tasheva, the government’s permanent representative for occupied Crimea, also called for a separate approach for Ukrainians who have lived under occupation for years.

But lawmakers have so far refused to budge, with few politicians willing to be seen as soft on those who are considered traitors in the popular imagination.

“The government is pretty understanding of what’s going on. It’s not a secret for those who are working with the issue, but the problem is that you need to explain to society why we need to change this law,” said ZMINA’s Lunova. “They can split society with this issue of collaboration.”

The phenomenon is hardly unique to Ukraine. “Every war has its collaborators, and every war has an often brutal response to those collaborators,” said Shane Darcy, deputy director of the Irish Centre for Human Rights at the University of Galway, who has researched the issue globally. Still, models for how to address it are scarce. Even international humanitarian law — the body of law that rules conduct in armed conflict — has a “blind spot” when it comes to collaboration, Darcy added.

International law posits that life should continue as normally as possible under occupation and requires occupying authorities to continue providing administrative services to civilians, allowing them to recruit former public servants to keep running them so long as it is not by coercion. “Of course, in a situation of occupation, it’s very hard to draw a fine line between what’s coercive and what’s not,” said Darcy. At the same time, international law also allows states to punish collaborators, provided they do so humanely. “Ukraine — to their credit — seem to be subjecting everyone to a legal process,” he added. “They’re not stringing collaborators from lampposts.”

Ukraine’s justice system is grappling with how to handle some 80,000 alleged crimes by Russian forces. Critics of the collaboration law argue that, at best, it’s impractical because it places more strain on a system that’s already overburdened. “We understand the situation, but you can focus on those whose crimes are really critical, against state security, whose actions really have heavy consequences,” said Lunova. “You shouldn’t prosecute those who put a like on Facebook.”

“They are pitting people against each other.”

Nadia Volkova, a human rights attorney and director of the Ukrainian Legal Advisory Group, who helped draft a never-implemented transitional justice plan after the 2014 conflict, argued that the mass prosecution of low-level collaborators risks causing long-term harm. Already, last year’s invasion deepened divisions that had long split Ukraine. “They are manipulating these differences that have always existed in Ukraine, because it was never a unified nation in a way,” she said. “They are pitting people against each other. One might think that they want to show everybody that if you’re not going to be supporting Ukraine, this is what is going to happen to you, you’re going to be held responsible. But if they want to unify the nation, it’s not really the way to go.”

Neighbors and Traitors

As Ukrainian forces wrestle territory back from Russian control, accusations of collaboration have become ubiquitous across the country. Old conflicts are sometimes recast in light of the ongoing conflict. Victims turn on victims.

“Sometimes it’s real cases, with real records, real evidence,” Leonid Merzlyi, the chief judge in Irpin city court, whose jurisdiction includes Bucha, told me when I visited his courtroom. “In other cases, it is neighbors’ fights.”

Though collaboration cases are usually investigated by national authorities and heard before higher courts, Merzlyi was well aware of their nuances. “If someone didn’t leave an occupied area, we need to know, why? And if someone had Russian soldiers visiting their house, why?” he said. “We need to analyze every case. It’s very crucial for Ukrainian society.”

While some Ukrainians in occupied areas “were supporting the enemy before, and it was clear,” he continued, others may have been “protecting their children, and they were forced by this natural feeling of protection, and it’s hard to judge in that case.”

Anatoliy Fedoruk, the mayor of Bucha for 24 years, noted that there were fewer allegations of collaboration there as compared to other areas that were occupied for longer periods of time, but he acknowledged that long-standing hostilities between neighbors were exacerbated by the conflict. “Often, people on the same street or even in the same family are ready to eat each other,” he said. “We are a civilized society and we do not prove things by conjecture: There should be evidence — whether of collaboration or of rape — not rumors.”

When we met, Fedoruk said that he wasn’t familiar with Anna’s case and couldn’t comment on ongoing investigations. The next day, however, a team of municipal workers came to inspect Anna’s rooftop. It had been damaged by shelling, and she had been asking the city to repair it for months. (They still haven’t fixed it, she recently told me.)

Anna and Maria’s war crimes case is currently in the pretrial phase, Ilikchiieva told me. As part of the prosecutor general’s investigation, the two have traveled to Kyiv in recent months to identify soldiers in hundreds of photos authorities pulled from Russian social media. During one visit, Pelehatiy, the senior police investigator who had repeatedly visited Anna at home and who had been in charge when police handcuffed Maria, stood on a side of the room, watching skeptically. Pelehatiy told The Intercept he had heard about Anna’s reports of sexual violence by soldiers, but that she had never told him directly about them. “He does not believe her,” Ilikchiieva said.

He’s not the only one. According to Ira, she and other neighbors have spoken with officers who agree that Anna is a liar, playing the part of the victim. “Everyone can see it,” she said, “but they can’t do anything with it.”

For Anna, it makes little difference whether she will ever face criminal charges for looting or collaboration. Either way, she is now an outcast in Bucha.

Last winter, someone vandalized her fence. On Christmas Eve, while she and Maria were out, two young men from the neighborhood smashed their windows with baseball bats, stole a TV, and beat her mother, she said. After she reported the attack to police, one of the men returned to fix the fence and brought a different TV; he told Anna that he had not touched her mother. In January, the same men attacked Maria as she walked home, threatening her with a knife. Again, Anna reported the incident to police. She said they did nothing.

Anna has come to resent her neighbors and the Ukrainian officials who failed her just as much as she hates the Russian soldiers who abused her. “The worst part,” she said, “was not the orcs.”

The post A Ukrainian Woman Protected Her Daughter From Russian Soldiers — and Was Accused of Collaborating With the Enemy appeared first on The Intercept.

Like many who knew Sanchez, Beattie couldn’t believe he’d committed such a horrible crime. She’d never known him to be violent — not like Glen, who could be terrifying. One Valentine’s Day, she said, Glen put a gun to his head at his home in Norman, Oklahoma, only to swing it around and put a bullet in the wall. Other times she saw Glen put a gun to Sanchez’s head. Although she said he never hit her — she threatened to stab him the one time he tried — Glen inflicted “mental abuse.” He was especially sadistic during sex, raping her repeatedly.

Still, it wasn’t until many years after Sanchez was sentenced to death that Glen started dropping hints that there was more to the story of his son’s case. On Friday nights, they would drink in a shed behind Beattie’s house, where Glen had put a warning sign: “WHAT HAPPENS IN THE MAN CAVE STAYS IN THE MAN CAVE.” It was there that Glen brought up Busken.

“He’d just all of a sudden start talking about her,” Beattie said. He said ugly things, calling her “the ballerina girl” or “that Busken bitch.” Perhaps most chilling, “He’d always say, ‘I should’ve done a better job at it.’” When Beattie asked Glen if he was saying what it sounded like, he deflected. She didn’t press him. But she came to call those nights “his confession time.”

Beattie always knew Glen had secrets. In the decades he came in and out of her life, he showed up when he needed a place to crash and refused to answer questions. He parked his black Trans Am behind her house so it wasn’t visible from the street. “Probably because he was running from something,” she said.

But in the spring of 2022, Glen was dying of cancer and spending his time on the couch in her home. Oklahoma was on the verge of setting a slew of execution dates, and Sanchez was likely to be among the men scheduled to die. One day Glen brought up the murder again. “He just made it sound like he was there,” Beattie said. He said his son didn’t know how to tie the knots that had bound Busken’s wrists. And he repeated something he often said: that he never could have survived prison like Sanchez. “‘He’s a bigger man than I am,” Glen said.

On April 24, 2022, Beattie was in her bedroom talking on the phone. The 10 o’clock news had just come on when she heard a gunshot. She ran outside to find Glen dead on her front porch. Beattie was still processing his suicide months later. “You sit here and wonder: Did you really want to die because you don’t want the truth out there? Are you making your son pay for what you did?”

Beattie told her story on an icy morning in late January, at her home outside Oklahoma City. Her adult son Charles played “Assassin’s Creed” in the living room. Charles had negative memories of Glen from childhood. “Whenever I knew that he was coming back, I had bad dreams,” he recalled.

Beattie first shared her account with Sanchez’s death row spiritual adviser, who persuaded Sanchez’s attorneys to look into it. Although the lawyers, Mark Barrett and Randall Coyne, had sought funds to hire an investigator before filing Sanchez’s federal habeas petition in 2011, their motion was denied. In an unusual arrangement, they agreed to use money raised by the abolitionist group Death Penalty Action. Last December, a private investigator named David Ballard came to Beattie’s home and took a statement. He also collected personal items belonging to Glen, including a cowboy hat and a toothbrush. They planned to test the items for DNA.

In February, Barrett and Coyne filed a state post-conviction petition with the Oklahoma Court of Criminal Appeals. It included an affidavit from Beattie recounting Glen’s “confessions” and explaining why she had never come forward before. “I was too scared of Glen while he was alive to even consider revealing what he admitted to doing,” it read. The attorneys asked for a hearing on the new evidence.

Three weeks later, Oklahoma Attorney General Gentner Drummond filed a response. The office had obtained a blood sample from Glen through the medical examiner’s office, which was analyzed by the Oklahoma State Bureau of Investigation. The DNA “does not match” the profile from the case, the bureau said. The results confirmed “what the state and the courts have already known for many years now,” Drummond wrote. Sanchez — and Sanchez alone — was responsible for murdering Busken.

Now 44, Sanchez is scheduled to die at the Oklahoma State Penitentiary in McAlester on September 21. He has insisted on his innocence for almost 20 years. His pleas have been dismissed by prosecutors, the courts, and, according to Sanchez, his own attorneys, who have never been able to overcome the incriminating DNA. Earlier this year, Sanchez asked a federal judge to replace Barrett and Coyne with an attorney introduced to him by his spiritual adviser, Jeff Hood. After his motion was denied, Sanchez waived his clemency hearing. A month later, Barrett and Coyne withdrew from the case.

The state of Oklahoma maintains that its evidence against Sanchez was overwhelming. Prosecutors say he abducted Busken from her Norman apartment complex early on the morning of December 20, 1996. He forced her into her car and drove to Lake Stanley Draper, where he raped her and shot her in the back of the head. The case hinged on two critical pieces of evidence: DNA taken from sperm found on Busken’s underwear as well as a leotard left at the scene.

Sanchez has long contended that the DNA evidence must have been planted or manipulated. He blames his court-appointed lawyers for failing to defend him at his 2006 trial and accuses Barrett and Coyne of abandoning him. The allegations have been amplified by Hood and Death Penalty Action, which launched a Free Anthony Sanchez campaign earlier this year. The activists insist that Glen Sanchez, not his son, killed Busken. Over the summer they placed billboards from Norman to McAlester urging people to watch a short film they produced called “Evidence Unraveled.”

In a state where 10 people have been exonerated from death row, the risk of executing someone for a crime they did not commit is real. “It is undeniable that innocent people have been sentenced to death in Oklahoma,” a bipartisan commission on capital punishment found in 2017. Poor lawyering, a lack of funding for capital defense, and overzealous prosecutors have contributed to wrongful convictions in the state. Particularly disturbing is the sordid history of misconduct within the Oklahoma City Police Department crime lab, where a forensic chemist named Joyce Gilchrist was fired for manipulating evidence — including in death penalty cases. Although Gilchrist was not the analyst in Anthony Sanchez’s case, she was a supervisor during the time that evidence from the case was examined and stored.

There are good reasons to question the forensic evidence behind any criminal case from that era. Yet some of the activists’ claims do not withstand scrutiny. “Evidence Unraveled” downplays and mischaracterizes the DNA. Ballard, the private investigator, now a vocal advocate for Sanchez, insists that the evidence was contaminated based on the fact that the DNA profiles for Busken and Sanchez, who were unrelated, shared alleles: the pairs of genes that appear on a specific location on a chromosome. Veteran DNA scientist Laura Schile, the forensic analyst who blew the whistle on Gilchrist’s misconduct more than 20 years ago, rejects this as egregiously misinformed. Ballard is not a DNA expert, she points out. “It takes a lot of years to understand DNA. And people share alleles with other people.”

Schile is one of dozens of people I interviewed while probing Sanchez’s case. A monthslong investigation and review of the available record — including trial and hearing transcripts, appellate briefs, and portions of the case file — left me with more questions than answers. But it also revealed significant problems that are all too familiar in Oklahoma death penalty cases. Sanchez, who is part Mexican and Choctaw, was convicted by an all-white jury, a fact his attorneys did not challenge at trial. No witnesses were called on Sanchez’s behalf at the guilt phase. And despite several mitigating factors that could have moved jurors to spare his life — Sanchez had just turned 18 at the time of the crime and grew up amid violence, abuse, and addiction — his trial team did little to develop such evidence.

“DNA is an investigative tool. It is not an investigation in and of itself.”

In Oklahoma, these problems have been eclipsed by the debate over Sanchez’s innocence and controversy over the Free Anthony Sanchez campaign. Local abolitionists have publicly disavowed Hood and Death Penalty Action for their incendiary rhetoric against the attorney general and lawyers appointed to represent people on death row. Barrett and Coyne have denied that they abandoned Sanchez. They accuse Hood of turning their former client against them and persuading him to forgo clemency. Sanchez has maintained that the decisions were his alone. He accuses his former attorneys of sabotaging his case by refusing to turn over his case files — a collection of more than 50 boxes. Last week, a federal judge reversed a previous order denying Sanchez the files but refused to stay the execution to give Sanchez’s new attorney time to review them.

With his execution imminent, unanswered questions still linger over Sanchez’s case. Among them is what role, if any, his father had in the crime. Sanchez’s trial lawyers either declined to be interviewed or could not be reached for comment. But documents in the case file show that his defense team suspected Glen was the real murderer — even if the DNA suggested Sanchez sexually assaulted Busken.

Indeed, even if the DNA implicates Sanchez, it is not at all clear what actually happened on the day Busken was killed. The rest of the state’s case was assembled from flimsy circumstantial evidence that did little to connect Sanchez to the murder. “Nothing else adds up besides the DNA,” Barrett told me. “I can’t believe that for so long the prosecution convinced the courts there was some meaningful corroborating evidence.”

“DNA is an investigative tool,” Schile said. “It is not an investigation in and of itself.” Even in a cold case, it is incumbent on prosecutors to close evidentiary holes that surround it. To forensic DNA expert Tiffany Roy, a death penalty case that relies solely on DNA is a red flag. “If it’s just the DNA, and that’s all you have, then it isn’t enough,” she said. If you can’t go back and put the DNA in context to ensure it is proof of the alleged crime, then it is certainly not enough to justify an execution. “The chances that you’re going to get it wrong, for me, the risk is just too high.”

Juli Busken’s murder was any parent’s nightmare.

Five days before Christmas in 1996, Bud and Mary Jean Busken drove a U-Haul from Benton, Arkansas, to Norman to help their daughter pack up her apartment. Busken had studied ballet at the University of Oklahoma, most recently performing in “Swan Lake.” She finished a semester early and was accepted to the University of Arkansas for a graduate degree in elementary education. Busken planned to go home for the holidays, then return to Norman so she could walk across the graduation stage with her friends.

Busken lived in an apartment complex on East Lindsey Street, just east of campus. As her parents pulled up around 11:30 p.m., they expected to see her red 1991 Eagle Summit parked outside. But it wasn’t there. On the door of her apartment, Busken’s mother found a note that said to contact the University of Oklahoma Police Department.

At the station, the campus police chief told them Busken had been reported missing earlier that day. He also said there had been a body found at Lake Stanley Draper, a large recreation area 15 miles north of Norman. He asked the Buskens for a photo of their daughter, then stepped out of the room. When he returned, he broke the news. The body at the lake was Juli. She had died from a gunshot wound to the head.

News of the murder shocked the college community. Some 300 people attended Busken’s funeral, and a scholarship was swiftly established in her name. Meanwhile, multiple law enforcement agencies began investigating the crime, including both the Oklahoma City and Norman police departments, along with members of the university police, the Oklahoma State Bureau of Investigation, and the FBI.

The overlapping efforts did not ensure all leads were followed. In the days after the murder, multiple tips to police were apparently missed, including calls from eyewitnesses who believed they saw Busken’s car on the morning she disappeared.

The last person to see Busken alive was her friend Megan Schreck, a fellow ballerina who spent the night with her on the eve of her death. Around 10 p.m., Schreck met Busken at a mutual friend’s apartment, where they exchanged Christmas gifts; Busken gave Schreck a pair of angel earrings. Busken planned to drive Schreck to the airport for an early flight the next morning, so the two decided to stay up all night, going out to eat around 2 a.m. They drove separate cars back to Schreck’s apartment, splitting up while Busken went to get gas.

Years after the case went cold, Schreck told a reporter that Busken seemed to take a long time filling up her car — and that she noticed a man’s name on Busken’s cellphone when she finally returned. For years Schreck wondered if this was important. When she was called as a witness at Sanchez’s trial, however, the name on the phone did not come up.

Instead, Schreck testified that Busken showed up with a cappuccino, then took a nap before heading to the airport before 5 a.m. “She drove me to the Delta check-in,” Shreck said. “She dropped me off and that was the last I saw of her.”

When a violent crime took place in Oklahoma County or its surroundings in 1996, the evidence went to the Oklahoma City Police Department crime lab. The lab had attracted good press over the years for its crop of forensic analysts — the “detectives behind the detectives,” as The Oklahoman put it. The year before Busken’s murder, the newspaper ran a flattering story about forensic analyst Joyce Gilchrist and two of her colleagues. “Criminals beware!” it read. “It’s getting harder and harder to go undetected.”

At the time, Gilchrist was in charge of opening the lab’s new DNA section. “We’ll be able to extract DNA from the root of one hair or a very small sample of semen or blood and establish a profile,” she told The Oklahoman. “It wouldn’t be an exaggeration to say that a single drop of blood will give us all the information we need.”

At first glance, there was plenty of potential forensic evidence in Busken’s case. Her unlocked car had been found at an apartment complex a block away from hers. There was reddish sand on the floorboard of the driver’s side. The car was messy, filled with papers, CDs, and a bunch of clothes, including pajama bottoms and multiple pairs of underwear. Half a dozen hairs were lifted from the car. Forty-nine latent fingerprints were found on the inside and outside.

At the autopsy, the medical examiner noted that Busken’s blue jeans were undone; her underwear was soiled and “slightly rolled down.” There was bruising on her thighs and labia and a small scrape on her anus. Her hands were bound behind her back “by a black shoestring ligature.” She had been shot at close range; a “significantly distorted” small caliber projectile was recovered from her skull. A ballistics analyst said it came from a .22.

Yet the murder weapon was never recovered. Neither were a number of key items: an opal ring belonging to Busken, as well as a radar detector, small stereo, and cellphone she kept in her car. Although phone records would provide critical clues — dozens of calls were made from the device following her murder — they did not lead to a suspect.

Evidence found at the lake was largely inconclusive. Shoe prints leading to the spot where Busken was found were not documented before the wind filled them with sand overnight, rendering them “useless,” as one evidence technician later testified. A discarded beer bottle and Coke can were examined for prints but yielded none.

Other items were disregarded, like a small purse found in some tall grass. It was red, with a square pattern that looked like a Native American design. “The sun kind of glimmered on it,” the sergeant who spotted it testified. “It was something that didn’t look like just some trash laying there.” The purse contained what appeared to be drug paraphernalia: a plastic-tipped cigar, two brass faucet screen aerators, and a pair of razor blades, along with a small jar of Carmex lip balm.

Authorities decided the purse had nothing to do with the case. But one item found a few feet away would prove vitally important: a crumpled pink dance leotard. It was marked with Busken’s initials, and according to a forensic analyst, it was stained with semen.

Police calls to Lake Stanley Draper were not particularly rare. With 34 miles of shoreline, the lake made an attractive place for illicit activity, from illegal dumping and drug use to more serious crimes. In 1980, at least eight women were reported to have been raped on the north side of the lake by a man dubbed the “Draper Raper.”

Not long after Busken’s murder, there was another attack at the lake. On the night of December 29, 1996, an 18-year-old woman was assaulted by a man in a 7-Eleven parking lot nearby. He forced her inside his car at knifepoint, “struck her in the face,” according to a police report, and drove to Draper Lake. He told her to “cooperate and you won’t get hurt,” ordered her to pull down her pants, and sodomized her.

The man was described as 6 feet tall and 180 pounds, between 31 and 35 years old. He had a medium complexion, medium build, and brown “short, shoulder length” hair. The victim briefly got ahold of the knife, according to the report; after struggling over the weapon, she managed to flee to the nearest building and call the police.

It’s not clear how much police probed a connection between the rape and Busken’s murder. But there are indications they tried to find a link. According to a report obtained by The Intercept, a detective submitted underwear and a vaginal swab from the rape case for DNA testing at the Oklahoma State Bureau of Investigation, or OSBI, on the same day that he submitted a cutting from Buskin’s leotard.

An OSBI analyst later reported DNA results in both cases. From Busken’s leotard, a complete male profile was found. From the underwear in the rape case, there were only partial results.

The rape case was never solved. In a phone call, the victim told me no one ever spoke to her following her initial report to police. She did not learn the results of the rape kit or whether it yielded any DNA. “Nobody ever contacted me afterwards to follow up,” she said.

Left/Top: A forensic sketch of the suspect in Juli Busken’s murder based on the eyewitness account of Kay Keller Merryman. Right/Bottom: A forensic sketch of the suspect based on the eyewitness account of David Kill. Credit: Oklahoma City Police Department

The Oklahoma City police released the first in a series of forensic sketches of a possible suspect in late January 1997. All of them came from drivers who had spotted a vehicle resembling Busken’s car — small and red, with Arkansas plates — on the morning of December 20. Residents of Busken’s apartment complex had said they heard a woman’s scream at around 5:30 a.m., followed by a door slamming and a man’s voice. Investigators concluded that Busken had been abducted, driven to the lake, raped, and murdered within two hours.

This time frame was based on the eyewitness account of David Kill, an aircraft mechanic at Tinker Air Force Base, just north of the lake. Kill told police that around 7 or 7:15 a.m., he was driving along the lake’s perimeter when a red car with Arkansas plates suddenly pulled out in front of him. The driver looked over at Kill, who decided to follow him, driving as fast as 80 miles an hour. Although it was still dark and he only saw the man from behind, Kill described him as roughly 23 years old, with collar-length, light brown hair and a medium complexion. There was nobody else in the car.

Kill gave his description to veteran law enforcement officer Harvey Pratt, who was Oklahoma’s only full-time forensic artist. Pratt was renowned for his skills, drawing countless composites in high-profile cases. The resulting sketch was heavily publicized, appearing on “America’s Most Wanted.”

Forensic sketches are highly fallible. They rely on the memory of an eyewitness, as well as the interpretation of a forensic artist with their own unconscious biases. As with any eyewitness account, the most accurate descriptions are likely to come soon after an event; the more time passes, the more memories can be distorted by new information. In Busken’s case, most eyewitnesses did not share their descriptions until months or even years after the murder.

With few apparent leads, however, police relied on the drawings to solicit tips. In March 1997, they released a second forensic sketch that bore little resemblance to the first. It came via a man who said he was driving in Norman around 6:30 a.m. on December 20 when he did a “lane dance” with a red car with Arkansas plates. A white woman with blonde hair was in the passenger seat. According to the police report, the witness sensed that the people in the car “had just finished arguing or fighting and were stewing in it.” The driver was white, in his mid-20s, with brown hair “about one inch long.”

A third man, John Henderson, contacted police in October. He had tried to call 10 months earlier, the day after Busken’s murder. But no one called back. Henderson worked at a water treatment plant on the grounds of Lake Stanley Draper. He said he was driving to work between 11:30 a.m. and noon when he saw a red car with Arkansas plates driving erratically. “The driver acted as if he was looking for some place to pull off the main street and stop,” Henderson said. There was a blonde woman in the passenger’s seat, but he could not see her face; she was hunched over in such a way that he thought she might be performing oral sex on the driver. The man was white with a dark complexion, Henderson said. He wore a military-style haircut and a black baseball cap.

Henderson’s account didn’t fit with the timeline the state later presented at trial. Although Busken’s body was not found until around 1 p.m., prosecutors argued that by 7:30 a.m., she had already been killed and left at the lake. Police spoke to Henderson twice; he led them to the location where he spotted the car. But he was not asked to help produce a forensic sketch. Instead, they asked him to submit blood and saliva samples. “They were never really interested in much of anything I had to say,” Henderson told me. He was not interviewed by Sanchez’s defense attorneys, despite his account casting doubt on the state’s version of events.

The last forensic sketch was not revealed until the fall of 1999. Like Henderson, Kay Keller Merryman had tried to come forward with information in December 1996 but never heard back from police. When they finally got in touch with her, she said she was on her way to work at Tinker Air Force Base early on the morning of the murder when she pulled up at a stop sign next to a red car that she would later see on the news. The car was making a right toward the southern part of the lake. The driver was a man between 25 and 30. He looked unkempt, with hollow cheeks, a “day or two’s worth of beard,” and long, dark hair. He wore a stocking cap and looked angry, Merryman said. A young blonde woman next to him looked scared.

According to the police report, Merryman said it was 6:37 a.m. when she pulled up next to the car. She remembered because she was planning to get to work early, and she had been checking her watch. Lead Detective John Maddox wrote that, according to Merryman’s account, the suspect would have had “just had enough time” to drive from the spot, “rape and execute the victim Busken, then leave the crime scene between 7:00-7:15 and be spotted by the witness David Kill.”

Busken’s case had gone cold by the time Cleveland County District Attorney Tim Kuykendall ran for reelection in 1998. The veteran prosecutor found himself embroiled in an ethics scandal over a memo he’d sent to the homes of his staff. “Every employee should be doing everything they can to see that I get reelected and their job is secure,” Kuykendall had written. Defense attorneys called the memo coercive; Kuykendall’s opponent called for him to resign. The Oklahoma Ethics Commission reprimanded Kuykendall, but by then, he had already been reelected.

In an interview with The Oklahoman, Kuykendall was ready to leave the scandal behind. He discussed his love of beans and cornbread over steak and his habit of keeping raccoons as pets. More importantly, he emphasized his “tremendous success” winning murder cases. “We have gotten seven death penalties, 15 life without paroles, and nine life sentences,” he said of the three counties he represented as district attorney. Kuykendall did not discuss the Busken case. But it was never far from his mind. “This is the case I think about every week,” he later told reporters.

Kuykendall’s tenure as district attorney coincided with the advent of forensic DNA analysis in Oklahoma. The OSBI opened its DNA lab in 1994, the year he was first elected. In 1998, the federal government launched the Combined DNA Index System, or CODIS, which provided a national database of DNA profiles taken from people convicted of crimes.

Some experts sought to make clear that DNA was not a magic bullet. “We are not specifically identifying a person,” OSBI analyst Mary Long told The Oklahoman, explaining that results are expressed in terms of probabilities: the chance that an identical profile would appear in a given population. But such nuances were mostly lost on juries. As an expert witness on the stand, Long told me, it was important not to conflate the presence of DNA with the guilt of the defendant. “Unless you saw him do it, you don’t have any idea who did it,” she said.

From the earliest days of the Busken case, the one thing investigators had was DNA. In 1997, the OSBI used an early form of DNA typing that required a large sample of biological material. The pink leotard contained enough sperm for analysts to obtain a male profile using this method. Later, the OSBI analyzed the garment again using PCR testing, which is still in use today. The resulting male profile included alleles at 13 locations, or loci. If a suspect could be found whose profile corresponded with all 13 loci, it would be considered a match.

On March 20, 2000, Kuykendall held a press conference in Norman. He announced that he was filing charges of first-degree murder, first-degree rape, forcible sodomy, and kidnapping against a “John Doe” in the Busken case. In lieu of a name, there was a series of numbers and letters: the DNA profile found on the leotard.

Kuykendall acknowledged how unusual it was to file charges against an unnamed defendant. But he maintained that the evidence was strong enough for a murder charge, and the DNA would be the crux of the case. He hoped that the profile might produce a random hit in a DNA database.

In the meantime, the profile spurred detectives back into action. The Oklahoma City Police Department undertook a DNA dragnet, requesting blood and saliva samples from men in and around Norman. The sweep raised the concerns of civil libertarians. One criminal defense attorney criticized detectives for violating people’s right to privacy rather than doing a more thorough investigation. “Police are basically saying, ‘If we pop a needle into enough arms, we’re bound to get lucky sooner or later,” he told The Associated Press.

Bo Ireland, now an Oklahoma City pastor, was one of the many men who submitted to testing. He remembers being called to the OU campus to answer questions only to find himself surrounded by 75 to 100 others at the health center, all being asked for blood and saliva. “I was like, ‘Wait, What? … I thought you had to have a warrant for that.’” As he recalls, his reaction sparked the officers’ interest — “like, ‘Do we need to get a warrant?’” Like almost everyone else, Ireland agreed to give a sample.

Maddox, the lead detective, bluntly acknowledged that refusal would be viewed with suspicion. “For them not to cooperate with us,” he told CBS News, “it leaves an open end out there for us to look at.” Busken’s father told the media that he did not understand why someone would not willingly give their DNA. “If you don’t want to give your DNA, you have something to hide,” he said.

In the summer of 2004, Kuykendall finally got what he’d been waiting for. An OSBI letter to the Oklahoma City Police Department reported that an autosearch had been conducted of the CODIS database, seeking a match between a forensic item in the Busken case and a sample from a man named Anthony Sanchez. According to the letter, “a candidate match was obtained.”

Prosecutors in Kuykendall’s office were familiar with Sanchez. In 2001, he had been accused by an ex-girlfriend of rape. She told police that she had come home at 2 a.m. to find Sanchez in her living room, where he tied her up and assaulted her. Sanchez insisted it was a false allegation — and the rape charge was ultimately dropped. Sanchez pleaded guilty to burglary. But there was one detail that leapt out from the police report: The girlfriend said Sanchez had tied her up with shoelaces.

There is “no question that this is our guy,” Kuykendall told The Oklahoman.

Sanchez swore from the start that he was innocent. He said he had no idea how his DNA would have ended up at the scene, but he believed it could have been planted using evidence from the alleged rape. As he tells it, he had never heard Busken’s name until two detectives came to see him at the Lawton Correctional Facility, where he was incarcerated on the burglary charge. After he refused to speak without an attorney, he was escorted back to his cell. It was the prison guards who told him that he was a suspect in Busken’s murder.

Someone in Sanchez’s position had good reason to question forensic evidence that had been handled by the Oklahoma City Police Department lab. Just a few years earlier, the lab had been the center of a national scandal when Gilchrist, the lab’s supervisor, was revealed to have manipulated evidence in criminal cases, sending innocent people to prison. One man had already been exonerated and released after being wrongly imprisoned for rape.

The forensic analyst who blew the whistle on Gilchrist’s misconduct was Laura Schile, a DNA scientist who arrived at the lab in 2000 and took over from Gilchrist. Schile had worked with DNA at a cancer research center, then spent three years at the Texas Department of Public Safety. What she found at the OCPD lab was disturbing. “The evidence was scattered throughout the police department,” she later told the OCPD’s departmental review board. There were boxes in the hallway, in the lab itself, and in the old jail. “It was quite obvious that all of the evidence was being compromised, potentially compromised,” she said.

In the case of Jeffrey Todd Pierce, the man who was exonerated of rape, Schile found a box of evidence that also contained evidence from an unsolved homicide. The items were “loose and unsealed,” she wrote in a memo. “Trace evidence was being potentially mixed and evidence was being contaminated.” Gilchrist, she learned, had packaged the items together because she suspected that Pierce was responsible for both crimes.

“It looks like they killed someone who didn’t do it.”

Especially concerning was Gilchrist’s role in some two dozen death penalty convictions, including the case of Malcolm Rent Johnson. A Black man convicted by an all-white jury, he professed his innocence until his execution in early 2000. Schile later reexamined forensic slides in the case and found that, contrary to Gilchrist’s testimony at Johnson’s trial, they did not contain his sperm after all. Although prosecutors insisted the rest of the evidence against Johnson was strong, the case was full of holes. “It looks like they killed someone who didn’t do it,” a defense attorney who reviewed the evidence told The Associated Press.

Gilchrist was fired in 2001. Schile left the OCPD the same year, after getting the DNA lab up and running. She went to work for the Oklahoma Indigent Defense System as the organization’s first in-house forensic analyst. The office provided state-funded trial and appellate representation throughout Oklahoma. For defense attorneys who wanted to challenge forensic evidence in the wake of the Gilchrist scandal, there was no better resource. Schile knew what to look for; she helped with discovery requests, asking defense lawyers to get everything she would need to review forensic evidence, including chain of custody documents, testing methods, lab notes, and raw data. “I would have had no control whether they got it for me or not — that was often the problem,” she told me.

Court records show that Sanchez’s lawyers fought for almost a year to get the Cleveland County District Attorney’s Office to turn over materials related to the DNA evidence in his case. A private attorney who was initially hired by Sanchez’s family filed a motion for discovery in September 2004, only to leave the case a few weeks later because he was not being paid. Lawyers with the Oklahoma Indigent Defense System took over. In August 2005, they wrote that while multiple labs had been involved in “the collection, storage, and/or analysis of evidence in this case,” the lawyers had yet to receive records documenting their work. “Thus far, the information provided has been limited, scant, and obviously incomplete.”

Sanchez had an additional reason to harbor suspicion about the DNA evidence. The earliest filings in the case show that defense attorneys were under the impression that there was only one piece of evidence containing Sanchez’s DNA — and it was so small that further testing would completely consume it. But later they learned that there were multiple items containing DNA. Nobody ever explained the discrepancy, according to Sanchez and his family. To them, the evidence seemed to appear out of nowhere.

The fight over discovery was ultimately resolved at a hearing on the DNA, where Sanchez’s defense team told the judge they had reached an agreement with the state. According to the trial transcript, Schile met with OCPD forensic analyst Melissa Keith, who had tested the leotard and other items in the recently opened DNA lab. They examined the evidence item by item, Keith testified. “I believe we spent the better part of a whole day.” Schile said this would be consistent with her job at the time. Although she has no specific recollection of reviewing the evidence, she confirmed that she received the necessary items from Keith prior to Sanchez’s trial. “I looked at this case,” Schile said. “I can say that I did not see any issues in the DNA testing.”

Sanchez came to mistrust his legal team. He was especially outraged upon learning that one of his attorneys — who later went to work for the Oklahoma Attorney General’s Office — was a member of the same church Busken had attended in Norman.

Today, Sanchez has a term for loyalty he sees among the network of people in Norman’s legal community: the “Crimson blanket.” “They all stick together,” he told me. “It’s like a gang. The cops all go to OU, the judges go to OU.” Sanchez had been raised on the east side of town, which he described as “the ghetto side.” Growing up poor in Norman meant being outside of this powerful, insular world.

Sanchez was born in Ardmore, Oklahoma, in 1978. His father, Glen, who was part Choctaw, had grown up in a large Mexican family in Lampasas, Texas. His mother, Gloria Faulkner, who was Choctaw and Chickasaw, was raised in Ardmore. Glen and Faulkner separated around the time that Sanchez was born. Both had severe substance abuse problems; Faulkner was addicted to drugs, Sanchez said. “I think I was like 6 or 7 years old when her house got raided the first time,” he told me. He was hiding under some covers when it happened, and the cops mistook him for someone trying to evade arrest. “That was the first time police beat me up.”

Sanchez’s older sister Lujuana remembers trying to protect him from their father as a child. “I tried to get him to run away with me,” she said. “Today it’s called abuse, but Daddy was just trying to make him tough.” At Sanchez’s trial, his grandmother recalled seeing Glen hit Sanchez in the chest when he was just 2 years old. “I said, no, you’ll make his heart fibrillate doing that,” she testified. But Glen responded that it would toughen him up.

“Today it’s called abuse, but Daddy was just trying to make him tough.”

When Sanchez was young, Faulkner suffered a disfiguring burn. Glen told Sanchez that his mother had been cooking meth. But Lujuana said that she had been burned by a man she’d gotten together with after the divorce. “Anthony was told that she was making drugs. And she wasn’t. She was trying to get away from an abusive relationship.” Sanchez remembers visiting Faulkner in the hospital and running away when he saw her. “She looked like Freddy Krueger,” he told me. “That’s how bad she was burned.”

Documents in Sanchez’s appellate file show that, according to family members, Glen tried to turn his son against Faulkner, taking him to live with Glen’s new wife, Cathy Hodge, when Sanchez was about 18 months old. According to Hodge, Glen wanted to save Sanchez from an unsuitable environment. But their own home life soon became violent.

“He was fine whenever he wasn’t drinking,” Hodge said about Glen. On weekends he would get drunk and beat her. During one particularly violent attack, Hodge tried to hide in a closet, but Glen found her; Sanchez yelled at his father to leave Hodge alone. Nonetheless, Hodge remembers Sanchez as a mostly happy kid. She showed me childhood photos of Sanchez wearing orange floaties in a swimming pool, sitting on Santa’s lap, and posing in a school football uniform. “The only time that I’d seen [Glen] really being ugly with Anthony was when he was trying to protect me,” she said.

Another one of Glen’s ex-wives remembers him treating Sanchez as “his golden boy.” But Beattie, Glen’s longtime girlfriend, said he “beat the crap out of Anthony.” As she described it, Glen was confident that Sanchez wouldn’t tell anyone.

According to his friends, Sanchez did not talk about his relationship with his dad. Adam Sheets, who knew Sanchez as a teenager, remembers Glen as a “mean, nasty” man who “talked to Anthony like he was a piece of shit.” Sanchez seemed to fear his father while also seeking his approval.

“I saw Anthony pretty much every day of my whole adolescent life,” said Kristina Bryan, Sanchez’s best friend. “We would just like hang out, smoke weed together. … I mean stupid teenage stuff.” Glen was clearly abusive, she said — he even pointed a gun at her once, which her mother also remembers. Bryan and Sanchez later had a temporary falling out over Sanchez’s drug use. As she recalls, he was doing crank, which “was changing who he was.” During a heart-to-heart, he opened up about physical abuse inflicted by his father. But that was the only time Bryan could remember him talking about it.

Hodge finally left Glen for good when Sanchez was about 15. That’s when Sanchez’s run-ins with police seemed to start. “I don’t know if he just didn’t have a family life,” she said. “I think he was just running the streets.” Before that, she said he was often followed in stores and wrongly suspected of crimes based on his ethnicity. One neighbor accused him of breaking into her house when he was actually in school. “She didn’t like them because they were Hispanic,” Hodge said.

The population of Norman was almost entirely white in the years Sanchez grew up there. As late as 1967, it was a sundown town: Black people were explicitly prohibited from staying out after dark under threat of violence. As Norman became more diverse in the early 1990s, racist backlash followed; The Oklahoman reported a rise in racist graffiti and police harassment of nonwhite residents.

Sanchez remembers facing plenty of racism growing up in Norman. “People would tell me to go back to my country, go back where I was from,” he said. He doesn’t remember it affecting him all that much. Most of his friends in Norman were Native American, he said. It was harder to feel like he didn’t fit neatly in either community. “If you’re not fully bilingual, you’re not Mexican,” he said. “If you don’t speak Choctaw, you’re not Choctaw.”

But facing a murder trial in Norman was a wake-up call. “It was all white people, even in the audience,” he said.

Sanchez’s trial began on January 30, 2006, at the Cleveland County District Court in downtown Norman. Media and spectators filled the gallery, including at least one local celebrity, famed football coach Barry Switzer, who attended almost every day. There was a heavy security presence; Sanchez remained shackled throughout. The Court of Criminal Appeals later found that the shackling was illegal but it would not have changed the outcome.

The jury was all white, which did not seem to faze Sanchez’s lawyers or the presiding judge. In a post-trial questionnaire, the judge acknowledged that there were no Hispanic or Native American people on the jury but said Sanchez’s attorneys had not objected. Asked if jurors had been instructed to “exclude race as an issue,” the judge answered only with a question mark.

Hodge brought a suit for Sanchez to wear but was barred from giving it to him. Along with the rest of his family, she was prevented from watching most of the proceedings. “We went and sat at restaurants or sat outside,” she said. She was distressed to realize that the lawyers did not plan to call anyone at the guilt phase of the trial. Like another person close to Sanchez I interviewed, Hodge said the lead attorney, Silas Lyman, told them that his goal was not to prove Sanchez’s innocence but to keep him off death row. Lyman declined to be interviewed about the case.

Representing the state was Assistant District Attorney Richard Sitzman, a veteran of the office who had been prosecuting homicides since the 1980s. As he described it, he did not want to rely too heavily on the DNA. “There are some people who think that DNA is hocus pocus,” he told me. “So it was very important to me and to the police department to prove this case without the DNA.”

“Evil sits right here in front of you today. And it’s Anthony Castillo Sanchez.”

In his opening, Sitzman emphasized how long it had been since Busken’s was killed. “Nine years, one month, and about 16 days,” he said. “That’s how long I’ve been waiting to tell you this story.” He told the tale of a ballerina with a bright future whose life was violently cut short. But instead of explaining how the crime took place, Sitzman described how DNA had finally identified the killer years later. “I call him ‘the cold hit guy,’” Sitzman said. “And the DNA is going to tell you what it’s told the rest of us, and that is that evil sits right here in front of you today. And it’s Anthony Castillo Sanchez.”

Despite Sitzman’s claims about proving the case without DNA, the additional evidence implicating Sanchez was elusive. One of Busken’s neighbors described hearing the scream at 5:30 a.m. on December 20, followed by a man’s voice saying, “Shut up and get in the car.” The state theorized that Sanchez was breaking into cars when he spotted Busken returning from the airport. But there was nothing placing him at her apartment complex that morning. Merryman, the eyewitness who told police she saw a blonde woman looking scared in the passenger seat of a red car, was not asked to identify Sanchez from the stand. Neither was Kill, the eyewitness who testified that a red car had cut him off later that morning. Of the 49 fingerprints found on the car, none of them matched Sanchez.

An acquaintance of Sanchez’s who allegedly told police he’d once seen Sanchez with a .22 caliber pistol testified that it was actually a .25. “I felt like they were wanting me to say something that didn’t happen,” the man told me, adding that he didn’t believe Sanchez had killed Busken. Sanchez’s former landlord testified that, after police tore apart the walls of Sanchez’s old apartment in search of a .22-caliber projectile, the landlord discovered a slug in the debris. Yet there was nothing directly linking it to Sanchez. His ex-girlfriend, Christin Martin Setzer, testified that Glen, not Sanchez, had shot bullets into the wall. “Glen was drunk, and Anthony made me stay in the bedroom,” she said.

Nor was there much linking Sanchez to the slew of numbers found in Busken’s cellphone records in the days after the murder. Prosecutors called a man whose phone number was on the list, but he testified that he did not know Sanchez or Busken — he couldn’t say why his phone would have been called by the killer. There was one compelling piece of circumstantial evidence pointing at Sanchez, however: an old day planner belonging to Setzer, in which she had listed the phone numbers of friends in their social circle. One of them was Melanie Crain, who had dated Sanchez. The number under her name matched one of the numbers in the phone records.

“I hadn’t spoken with Anthony in years by the point that he would have called that number.”

Crain now goes by Melanie Thompson. She remembers being bewildered when detectives contacted her to say that her number had shown up in the records. But she also said that the number in question was no longer hers in December 1996, which made her doubt that the person who used the phone was trying to reach her. When detectives contacted her again to say that the DNA matched Sanchez, “I was really confused,” she said. “Because I hadn’t spoken with Anthony in years by the point that he would have called that number.”

Of all the pieces of circumstantial evidence presented at trial, Sanchez is perhaps most adamant about debunking one: shoe prints found at the scene that investigators ostensibly linked to a pair of Nike sneakers he owned. For years Sanchez has argued that, according to the state, the prints were left by a man who wore a size 9. “I wear a size 11 1/2 wide and have since I was 12 or 13,” he told me.

There were other reasons why the shoe-print evidence was absurd on its face. OCPD officers testified that sand had blown into the prints on the lakeshore, making them impossible to examine. This was clear from a crime scene photograph entered into evidence, which captured a barely discernible shoe print with a vaguely waffle-patterned sole. Even if the print had been left by the killer, there was no way to determine which specific shoe had created the print — and the state did not call a footprint examiner to try.

Instead, OCPD detectives described how a pair of colleagues had taken the photograph of the print to local stores and compared the sole to athletic shoes in stock. “They believed it to be a Nike Max Air 2,” Maddox, the lead detective, testified.

Investigators contacted the Nike corporation and requested an overlay of the shoe model, which was presented to jurors. The visual insinuated a match between the shoe print and the Nike Air Max 2. Prosecutors then utilized Setzer’s planner to show that Sanchez had purchased a pair of Nikes in the months leading up to the murder. In bubbly handwriting on October 14, 1996, Setzer, who was pregnant at the time, wrote that Sanchez had given her a necklace, a baby bed, and a pair of Nikes. “He got matching shoes but boy style,” the planner read.

The link was tenuous. In an interview with detectives, Setzer was shown a photo of a pair of Nike Air Max shoes. “I can’t say they were identical,” she testified.

Left/Top: The Nike Air Max Tailwind, pictured, which had the same sole as the Air Max 2, was shown to jurors at Anthony Sanchez’s 2006 trial. Right/Bottom: A shoe print believed to belong to the man who killed Juli Busken found on the shore of Lake Stanley Draper on Dec. 20, 1996. Detectives said the print was unusable but claimed to match it to a Nike Air Max 2. Credit: Courtesy of Oklahoma Attorney General’s Office

The strength of the shoe-print evidence became strikingly distorted in the years after the trial. Sitzman remembers the prints at the lake as being “pristine.” Kuykendall, the district attorney, has attributed the match to the Nike corporation itself, claiming in a “Forensics Files” episode that “they were able to identify the specific shoe that they believed made this impression in the sand.”

The star witness for the state was Melissa Keith, the DNA manager for the biology unit of the OCPD lab, who laid out her handling of the leotard. “In 1996, when I originally received this item, I examined it. I marked areas for testing,” she said. When she found sperm on the leotard, she sent it for DNA testing at the OSBI. Later, she did DNA testing on the leotard and other items herself. She got a complete male profile from the leotard and the underwear. Sitzman asked her to go through the profile step by step for the jury. The results were decisive. The profile and the reference sample from Sanchez “were found to be the same at all loci tested.”

“If I find a sample to be consistent with a certain person, I can then take that DNA profile, put it into a program called population statistics, and calculate how, let’s say, rare that profile would be,” Keith testified. The probability of finding another donor with exactly the same DNA profile as Sanchez was 1 in 200 quadrillion Caucasians, 1 in 20 quintillion African Americans, and 1 in 94 quadrillion Southwest Hispanics, she said.

On February 15, 2006, Sanchez was convicted on all counts. Two days later, jurors sentenced him to die.

It wasn’t long after Sanchez was sent to death row that his aunt had an odd interaction with her brother, Glen, who came by her house while she was watching TV. “Out of the clear blue sky he said, ‘I might be a woman beater and a drunk, but I’m not a killer,’” she said. “And I thought, ‘Why would he say that?’”

Another time, he pulled up in his truck while she was smoking a cigarette. She can’t remember exactly when. But he gave her a black beanie-style hat and said something like, “Here, you do something with this.” Although his son’s trial was over, Glen seemed concerned that he might still be targeted as a suspect. “Before I know it, they’ll be trying to pin that on me,” his sister remembered him saying.

“Before I know it, they’ll be trying to pin that on me.”

Glen was not wrong to think he was suspected of being involved. Documents in the case file show that Sanchez’s trial lawyers believed that Glen might have been the real killer. Even if the DNA showed that Sanchez had sexually assaulted Busken, there was no real proof that he was the one who shot her. At least one of the crime scene photos also showed what appeared to be a print from a cowboy boot in the sand; Glen was known to wear cowboy boots.

Unlike the vast majority of men questioned by Oklahoma City police, Glen was not asked to give blood or saliva samples. During an interview in 2004, he was evasive and “difficult,” according to a police report. He couldn’t answer basic details about his son’s life, such as where he’d gone to high school or where he was living around Christmas 1996. When he was told about the DNA evidence implicating Sanchez, Glen got agitated, suggesting this was another false accusation, like the one by his son’s ex-girlfriend — “just because of a woman’s loud mouth, a lie.”

According to Glen, “Anthony wasn’t capable of killing at 17 or 18 years old,” the detective wrote. When he asked Glen if he ever went fishing with his son at Lake Stanley Draper, Glen said, “I think so.” The location he gave caught the detective’s attention. It was on the lake’s south side, “just west of the location where the body of Jewell Busken was located.”

According to Sitzman, Glen was investigated alongside the rest of his son’s friends and acquaintances. “I’m not aware of anything that ever raised him to the level of suspect or even a person of interest,” he said. Despite the trial lawyers’ suspicions, it is unclear how thoroughly the legal team investigated the theory. A defense investigator’s memo shows that Glen was interviewed only once before Sanchez’s trial. “After that, he has refused to talk to anyone on the defense team,” the investigator wrote. “Glen is paranoid, does not trust lawyers, cops, or white people.”

Nevertheless, Sanchez’s appellate lawyers argued that evidence of the murder pointed more directly at Glen than his son. To support the argument, they cited the forensic sketch based on Merryman’s account. In Sanchez’s direct appeal, his lawyers noted that Merryman had described the driver as older than the 21-year-old Busken. “Sanchez had just turned 18 at the time and looked quite young,” the lawyers wrote. The state’s own timeline also suggested that Busken was not raped at the lake. There was too much time between her apparent abduction at 5:30 a.m. and Merryman’s sighting well over an hour later. It was more likely that she had been taken to “some other location,” which opened up the possibility that someone else — possibly Glen — had driven Busken to the lake.

“I wish you could look into my eyes and see what I saw because it’s indelibly etched in my mind.”

If his lawyers’ theory cleared Sanchez of murder, it did not offer much proof against his father. What’s more, although the lawyers argued that the evidence was insufficient to convict Sanchez of first-degree rape, they conceded the “presence of what appears to be his DNA at the crime scene.” In a letter after his direct appeal was rejected, Sanchez assailed his attorney for arguing that his father had killed Busken. “What kind of demented lawyer are you?” he wrote. “I feel that you have done your best to help seal my fate at death.” The attorney replied that he had done his best under the circumstances. “The one fact that could not be overcome in your case was the fact that your semen was present at the crime scene.” He reminded Sanchez that they tested his DNA themselves, and the results were the same. “You wish to ignore this aspect of your case, but wishing it away won’t make it so.”

Sanchez’s advocates have continued to use the sketch based on Merryman’s account. It is prominently displayed by the Free Anthony Sanchez campaign — and it’s easy to see why. The drawing shows a man of possible Indigenous ancestry, who looks quite a bit older than 18. With long black hair, the man in the drawing bears a striking resemblance to Glen.

Yet Merryman remembers being frustrated by the sketch. In a phone call, she told me that the forensic drawing didn’t look much like the man she saw. “I said to the artist, ‘I wish you could look into my eyes and see what I saw because it’s indelibly etched in my mind. I don’t seem to be able to convey it to you,’” she said. Today she believes that the man was Sanchez and the frightened woman was Busken. “I couldn’t understand why she didn’t attempt to notify me or say help or something,” Merryman said. “It weighs on me to this very day.”

In November 2010, Sanchez was appointed a new attorney to challenge his conviction in federal court: veteran post-conviction lawyer Mark Barrett. In many ways, Barrett seemed ideally suited to litigate Sanchez’s innocence claim: He had helped exonerate two different clients from death row, including Ron Williamson, whose story was later immortalized by John Grisham in “The Innocent Man.”

Barrett was joined by Randall Coyne, a University of Oklahoma law professor and seasoned capital defense attorney who had been part of the legal team that defended Oklahoma City bomber Timothy McVeigh. Like Barrett, Coyne had a heavy workload; when he entered his appearance in Sanchez’s case in June 2011, he was facing deadlines for the fourth edition of his reference book, “Capital Punishment and the Judicial Process,” while also editing a professional journal covering death penalty trends.

Sanchez was hopeful about his new attorneys at first. In a letter to Coyne, he wrote that he and Barrett were the first lawyers to listen to what he had to say. “All of my other lawyers always say, ‘There is DNA, you did it, nothing else matters.’” Still, Sanchez admitted that he was leery of Coyne given his affiliation with the university. Sanchez asked him to answer questions, including “Where do you go to church?” In a P.S. Sanchez wrote, “For what it’s worth, I am innocent!”

Barrett remembers getting along well with Sanchez in the beginning. “He clearly was a person that had had a rough life in some ways but still wasn’t all that hardened,” he said. Given his age at the time of the crime, Sanchez was “barely eligible for the death penalty,” he said. Yet the state had gone out of its way to make him into a monster. “He was sentenced on 6/6/06,” Barrett said. “I’m almost certain they did that on purpose.”

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Like any federal habeas lawyer in Oklahoma, Barrett was hamstrung by the work of Sanchez’s previous appellate attorneys, who themselves faced daunting procedural hurdles. In most death penalty states, a direct appeal and state post-conviction proceedings are two distinct phases of a capital case. When a direct appeal is denied, a person on death row has a couple of months to a year before their state post-conviction appeal is due. This is critical because the latter is the first opportunity for an appellate lawyer to investigate and present evidence outside of the trial record. When it comes to arguing that a client received ineffective assistance of counsel, often the most viable path to relief, an investigation is usually the best way to reveal a trial lawyer’s failures.

But in Oklahoma, the direct appeal and state post-conviction proceedings happen simultaneously. What’s more, the Court of Criminal Appeals has held that a claim of ineffective assistance of trial counsel must be raised on direct appeal. The practical effect is to prevent appellate lawyers from uncovering evidence that could have been presented at trial. “At the point we come in, if it wasn’t brought up by the lawyers ahead of us, it’s pretty much unusable by us,” Barrett said.

“There has to be another way that this has happened.”

Barrett and Coyne sought to build on the argument that there were alternate suspects. They met with Sanchez’s stepmother, Cathy Hodge, who shared documents that pointed to other potential perpetrators. “There has to be another way that this has happened,” she wrote. “I truly believe that Anthony is innocent.”

Among the documents were two letters from a man named Rocky Dodd, who was on death row when Sanchez arrived in McAlester. The two had known each other in Norman. The letters said that Dodd had spoken with his younger brother Shaun, who had information that Sanchez might be able to use. Around the time of Busken’s murder, Shaun said, two men named Tony and Scott showed up at his mother’s house looking nervous and “in a hurry to get out of town.” They asked Shaun to go to Tennessee with them and he did. There, Tony pawned a number of items, although Shaun did not know what they were. But he suspected the items might have belonged to Busken.

The Tony in question was Tony Reynolds, an acquaintance of Sanchez’s who had been identified by police as a “person of interest” in the Busken case. He had a long rap sheet and lived with his girlfriend in the apartment complex where Busken lived. They moved out shortly after the murder. An OCPD detective testified at trial that Reynolds had answered questions over the phone from Tennessee. Maddox, the lead detective, said they obtained DNA from Reynolds. But rumors persisted long after the trial that Reynolds was involved — and that he had pawned Busken’s opal ring and other belongings after leaving the state.

Dodd said it was possible that Shaun knew more than he’d shared in their phone conversation, which took place over the prison’s monitored line. “Are you wanting to have an investigator talk to Shaun?” Dodd asked Sanchez. “Just let me know and we can get it arranged.”

Barrett and Coyne filed a motion in federal court seeking an investigator. They planned to argue in Sanchez’s federal habeas petition that his trial attorneys had provided ineffective representation by failing to present any proof of his innocence, even though there was evidence pointing to alternate suspects. They also wanted to show that the trial attorneys failed to uncover “substantial mitigating evidence” that could have spared Sanchez a death sentence. Although the trial lawyers called some witnesses during the sentencing stage, they presented a limited view of the abuse and trauma Sanchez experienced as a child.

At the time of Sanchez’s trial, the American Bar Association had developed specific guidelines defining the importance of mitigation. Today, capital cases involve mitigation specialists — people trained to investigate a defendant’s family history to shed light on things like generational trauma, addiction, and violence. But Sanchez’s trial team did not include such a person. Family members mistrusted the lawyers; although a defense investigator interviewed Faulkner, Sanchez’s biological mother, she was “unable to provide the kind of testimony we needed,” according to a subsequent memo. Faulkner then asked to be released from her subpoena and threatened that if she wasn’t, she would “go to the DA and testify for their side.”

Federal District Judge Joe Heaton denied the motion for an investigator. Barrett and Coyne had failed to show why that was necessary, he wrote. Besides, the U.S. Supreme Court had recently decided a case that further restricted the right of petitioners to present new evidence in federal court. In light of this ruling, an investigator would “fail to serve any purpose.”

The lawyers’ resulting petition challenging Sanchez’s conviction was thin, largely reiterating points made by his previous attorneys. There was no new mitigation evidence or evidence pointing to different potential perpetrators. Although the petition mentioned Reynolds by name, it did not explain who he was or why he should have been investigated in the first place.

The following year, Sanchez’s petition was denied.

I first traveled to Oklahoma in January. At that time, Sanchez was set to be executed in April. But Drummond, the attorney general, asked the Court of Criminal Appeals to slow down the state’s frenzied execution schedule. After news broke that Sanchez’s date had been pushed to September, I wrote to get his reaction. He told me I was the first to share the news. He did not hear from his attorneys often.

At the time, Barrett and Coyne were still collaborating with Hood, Sanchez’s spiritual adviser. But after the Court of Criminal Appeals rejected the state post-conviction petition containing the affidavit from Beattie, Glen’s longtime girlfriend, the relationships fell apart. Sanchez and his family sided firmly with Hood. If not for his activism, they told me, no one would know about Sanchez’s case.

Much of my time in Norman was spent seeking records in the case. Some were at the Cleveland County Courthouse. Others were stored in dozens of boxes at Barrett’s office. Among the documents I hoped to review were the police reports, which the OCPD would not release, and additional records related to forensic testing. Barrett did not share them. Over time, our conversations gave me the sense that their contents would not necessarily help Sanchez’s case.

One of the questions I wanted to answer was not about Sanchez but about Busken. A woman who briefly worked as a defense investigator for Sanchez’s original trial attorney told me that she had uncovered evidence that Busken was involved in dealing drugs. She had found multiple witnesses who could testify to this. The red purse found at the lake was almost certainly Busken’s, she said.

The woman said she’d given all her materials to the trial lawyers with the Oklahoma Indigent Defense System. But they did not use what she found. This didn’t surprise her. Although presenting such evidence could have undermined the state’s case, it also could have backfired. “We go from this innocent ballerina OU student that does no wrong to ‘Oh my god, she’s into drugs,’” she said. It would have looked like they were attacking the victim.

Ryan James, a close friend of Busken’s, was the first to report her missing when she failed to meet him for a lunch date on December 20, 1996. James rejected the notion that Busken was dealing drugs. “She was the furthest thing from anything to do with any kind of drugs or alcohol,” he said. Barrett’s recollection was that Busken “was supposed to be a super clean, strait-laced lady.” He didn’t remember evidence pertaining to drugs, but he conceded that it could have been pursued by the trial lawyers if it offered an alternate theory of the crime. “If it helps the client, you have to use it, but you have to be very careful in how you use it.”

Documents in the case file show that at one point, Sanchez said Busken looked like a drug dealer he knew. When I asked Sanchez about this, he said he had no recollection of it. As for Reynolds, Sanchez said the two did not get along, but he did not know whether he was involved in Busken’s murder. “There’s a lot of people who say that he was bragging about it, but I don’t know,” Sanchez said. “I wouldn’t put it past him.” Reynolds did not respond to multiple messages seeking comment.

In the months I spent investigating the case, I was struck by the number of people who believed Sanchez was innocent. Most of his friends and family members said that he was not capable of murder but his father definitely was. Still, many found it hard to believe that Glen would have allowed his son to be executed for a crime he himself committed. And they balked at some of the wild claims made by the activists, like the open speculation that Glen might have been a serial killer.

I also came to wonder what, exactly, Glen told Beattie before he died. In our conversation, she described more insinuations than confessions. But the more she spoke publicly, the more detailed and vivid her accounts became. With no other direct proof of Glen’s involvement, it was impossible to conclude that he was responsible for the crime. But as in so many cases I’ve written about, it also seemed clear that Sanchez was profoundly shaped by his father in ways that led him to death row.

When I first asked Sanchez how he felt when the attorney general’s office released Glen’s DNA results in February, he said he felt “relieved.” He didn’t want his father implicated in the crime. “Don’t get me wrong, I know my dad had his flaws,” he said. “But if he wasn’t drinking, he was a really actually good guy.” Glen’s alcoholism made him act “like an idiot,” Sanchez said. “He was very violent.” But Sanchez had also been accustomed to it from an early age. “I mean, that’s my dad … that’s what I grew up knowing. I didn’t know no different.”

On September 13, the day before Sanchez was transferred to death watch, he went outside for the last time. He had already given away his belongings — mostly clothes and art supplies he used to send paintings and cards to his family over the years. Now he just had to pack up his cell, including the photos that decorated the wall. “I have a lot of family photos,” he said. “I have my three kids. I have my grandbabies. I have my mom, my dad.”

It was a beautiful day in McAlester, he told me. It had been nice to see other people, even if he could only talk to them inside a cage. The recreation yard looked like a “dog pound,” he said, but he was used to it. He’d been at McAlester for almost his whole adult life. “I know a lot of people in prison,” he said. Some of them were pretty cool. But “if I was to get out today, I would not take none of these people home.”

For a man so close to execution, Sanchez sounded calm, if not particularly hopeful. There had been a hearing in Oklahoma City earlier that day about the boxes of files in Sanchez’s case. Heaton, the same judge who denied him an investigator in 2011, had agreed to allow Sanchez’s new attorney access to the records. But he also denied a request for a stay of execution. There was no way the lawyer would have time to go through the boxes before Sanchez was scheduled to die.

Sanchez was looking forward to a visit from Hodge. She was supposed to bring one of his daughters and a grandchild he’d never met. But he refused to put any family or friends on the witness list for his execution: “I don’t want this being the last vision of me for people that I love.”

We talked about what he might say when it came time for his last words. He said he wanted to acknowledge the Buskens. The worst thing about his decades on death row was that it kept him away from his children, he said. The Buskens had lost their child too. “What happened to their daughter was a tragedy. It should have never happened. And if this is what they need to feel closure, then I hope it helps.” Still, he said, “I didn’t kill Juli Busken.”

Now he mostly seemed to want to shut out the world. For the past few weeks, he’d been watching movies on his tablet. “I can put my earphones in and turn it all the way up and I don’t hear nothing.” He’d watched the “Lord of the Rings” series and “The Fast and the Furious.” And he’d watched “Harry Potter,” but he didn’t like it. “I don’t believe in magic like that.”

The post DNA Evidence Sent Anthony Sanchez to Death Row. But Did It Actually Solve the Crime? appeared first on The Intercept.

It was still dark outside when Umar Khalid sat down to make the farewell video. He had stayed up all night at a close friend’s apartment, where he had just celebrated his 33rd birthday, blowing out candles and cutting a chocolate cake. Now he sat on the couch stiff with tension, dark circles under his eyes, his face tinged a sickly yellow. He had been smoking nonstop for hours and eaten so little that he was feeling unwell. His friend was seated on the ground nearby, his phone ready to record.

“If you’re watching this video,” Khalid said, “it means that I’ve been arrested.”

It was September 2020, on a hot, stuffy morning in Delhi. Seven months earlier, in late February, a wave of sectarian violence had ripped through the Indian capital. Amid mass demonstrations against a restrictive citizenship law that targeted Muslims, a mob goaded by a local leader clashed with Muslims in the area. Over the next four days, violence swept through predominantly Muslim neighborhoods; at least 53 people were killed and 14 mosques gutted.

The timing was noteworthy: U.S. President Donald Trump arrived in India to meet with Prime Minister Narendra Modi the day after the riots erupted. While Trump and Modi hugged and lavished each other with praise, Delhi’s northeastern district burned.

As the violence unspooled, Khalid was halfway across the country in the eastern state of Bihar. He was headlining a protest where he told the audience seated cross-legged before him that many Hindu supremacists “have nurtured the dream that Muslims will leave the country, that they will go to Pakistan.”

“They have spread hate to make it happen. They have nothing but hate. But we will respond with love,” he said. “They are trying to provoke us. They are trying to start a riot. They are saying, ‘Shoot them.’ What are we saying? We are saying, ‘There is no better place in the world than India.’”

The secular activist rose to national prominence giving powerful speeches criticizing Modi and his far-right political party for leading a campaign of repression previously unseen in independent India. Khalid has compared Modi to India’s British colonizers, whose centuries-long stranglehold was enabled by policies that pitted religious and ethnic groups against each other, fueling mutual suspicion and resentment. A target of the Modi government since he was a university student, Khalid was now among the leaders of a broad-based movement that had emerged to protest the prime minister’s anti-Muslim policies — and the government was eager to squash its momentum.

Khalid was among the leaders of a broad-based movement that had emerged to protest Modi’s anti-Muslim policies — and the government was eager to squash its momentum.

In March, Amit Malviya, the social media chief of Modi’s Bharatiya Janata Party, tweeted a video of a speech Khalid had given ahead of Trump’s visit in which he urged protesters to fill the streets and tell the U.S. president that Modi was dividing India and mocking Gandhian values of nonviolence. Malviya described Khalid’s audience as “largely Muslim.”

“Was the violence in Delhi planned weeks in advance by the Tukde Tukde gang?” he wrote on Twitter, using a pejorative to refer to the BJP’s political critics. This single tweet was turned from a question into a statement and reported as fact by cable news channels aligned with Modi. It soon became the basis for accusing Khalid of masterminding the riots.

The Covid-19 outbreak and the government’s nationwide lockdown forced an end to the demonstrations, as well as Khalid’s speeches at protest sites. Exhausted, Khalid and his partner of 10 years, Banojyotsna Lahiri, went to visit her family and unwind.

In April, while Indians were ordered to stay in their homes, the Delhi police began arresting student leaders and activists who had participated in the citizenship protests, charging over a dozen high-profile activists with a slew of offenses, including murder, sedition, and, not long after, terrorism. News of the arrests put Khalid on edge. Lahiri recalled, “There was crazy tension in the air.”

In August, Khalid received a phone call from the Delhi police. The summons was couched as a request for help with the police’s investigation into the riots, but Khalid knew his turn had come.

Over the next few weeks, Khalid was called in twice for questioning. He knew the interrogations weren’t intended to establish the facts; they were a sham to make it seem as if the officials were doing their job. He was fully aware of how this would end.

He decided to record the video, telling his close friend to release it at a press conference when the police finally made their move.

“They are silencing me,” Khalid said, staring into the smartphone camera. “They are putting me behind bars. But they also want to imprison you — with lies. They want to frighten you into silence. I’d like to end with an appeal: Don’t be afraid. Raise your voice up against injustice.”

Three days later, on September 13, the police called Khalid to the office of the city’s counterterrorism unit. This time, they didn’t let him leave. Nearly three years on, he remains in jail without a trial date.

The Modi government has made a habit of hounding anyone who criticizes the prime minister’s efforts to transform the world’s largest democracy into a majoritarian police state. Since Modi came to power in 2014, his government has wielded the law to target every kind of critic on every platform, from students expressing opinions on social media to human rights activists investigating atrocities. In March 2023, a court in Gujarat — where Modi was born and had a long political career before becoming prime minister — convicted the leader of India’s main opposition party, Rahul Gandhi, of defaming Modi. The decision led to Gandhi’s disqualification as a member of Parliament and jeopardized his eligibility to contest Modi in national elections next year. Though the Indian Supreme Court has since suspended the conviction, the move was the clearest sign yet that India is now an elected autocracy.

Two decades-old laws have been Modi’s favorites for suppressing dissent and removing his critics from public life: the colonial-era sedition law and the Unlawful Activities (Prevention) Act, a so-called anti-terror law. Khalid is among the few Indians who have been charged under both.

Between 2014 and 2020, more than 7,000 people were charged with sedition, according to a database published by Indian news site Article 14. The UAPA accounted for more than 8,000 arrests between 2015 and 2020, according to a study by the Indian human rights nonprofit People’s Union for Civil Liberties.

“These laws were already on the books — what we are seeing now is malice,” said journalist Aakar Patel. “This is a government that has weaponized the legal system to ensure that dissent is curbed through jail.”

“This is a government that has weaponized the legal system to ensure that dissent is curbed through jail.”

When I visited Delhi late last year, even mere conversations about the state — or “the regime,” as many called the Modi government — were steeped in fear. People wanted to communicate with me through secure messaging apps. When we met, it was at places such as a park at dusk, where they could not be recognized or overheard. A transcriptionist based in India later declined to work on this piece for fear of being implicated in journalism that was critical of the government. The culture of pluralistic debate that inspired economist Amartya Sen to coin the term “the argumentative Indian” has been all but wiped out.

Despite India’s divisive and unstable political environment, Modi remains very popular among voters and is almost certain to win a third term next year. The BJP has spent hundreds of millions of dollars in taxpayer money to build a cult of personality around him. His face is everywhere, from front-page newspaper ads to Covid vaccination certificates. A satellite launched into space in 2021 carried a photo of Modi. Despite being only 5 feet, 7 inches tall, Modi towers over the Indian people in giant cardboard cutouts that have popped up all over the country.

The purpose of this symbolism is not lost on Indians. It is a loyalty test. Long after Independence Day last August, gas stations, homes, and even street vendors in Delhi continued to fly the Indian tricolor. One woman told me that as a personal act of resistance, she had decided not to display the flag. Then she heard that gangs of Hindu vigilantes were roving the area, noting down the names and addresses of those who refused to fall in line. She went up to her terrace and raised her flag.

Growing Up Muslim in India

Last fall, two years after Khalid was arrested, I spent time with his family in Delhi. Their elegant apartment was full of books and photographs. A maid worked in the open-plan kitchen while one of Khalid’s younger sisters chatted with a cousin. His father, Syed Qasim Rasool Ilyas, brought out a tray filled with snacks and served tea. At first, Khalid’s parents were politely reserved. But when his mother, Sabiha Khanam, a soft-spoken woman who wears a hijab, sat down next to me, she planted her feet firmly on the ground as though determined not to hold back.

“My son had a bright future,” she said. “He could have moved abroad, bought a nice house, a nice car. It was all within his grasp. But he said, ‘I only want to live in India.’” She shook her head. “And he’s the one they call a terrorist?”

Khanam’s parents moved from the North Indian state of Uttar Pradesh to Delhi when she was a child; she grew up among a large extended family helmed by her father, a sales tax officer with the city government. Ilyas came from an activist family: His paternal grandfather had been a freedom fighter with the Muslim League and after independence joined the Jamaat-e-Islami Hind, a movement to establish Islamic fundamentalism in India that later moderated its views because they were so unpopular among Indian Muslims. Khanam and Ilyas met as members of Students’ Islamic Movement of India, or SIMI, launched in 1977 to offer Muslims moral support and camaraderie in a nation that was often openly antagonistic toward them.

The friction around the acceptance of Muslims as Indian can be traced back to the Partition of 1947 and the division of British India along religious lines: Hindu- and Sikh-majority regions remained inside independent India, while Pakistan was created as a homeland for Muslims. Though 35 million Muslims chose to stay in India, the Hindu supremacist groups that mushroomed in the run-up to Partition — namely the Rashtriya Swayamsevak Sangh, the ideology’s mothership and the world’s largest volunteer paramilitary force, which Modi joined as a child — viewed them as an even greater threat after the subcontinent was split.

Since then, despite being India’s largest minority religious group, the country’s more than 200 million Muslims have been systematically underrepresented and discriminated against in virtually every area of public life, from education to employment to housing. SIMI impressed upon members the need to uplift the community through education and job training; the group came to be known for its cadre of educated Muslims, including Ilyas, who has a Ph.D. in chemistry.

By the time Ilyas became SIMI’s national president in the 1980s, Khanam was in charge of the Delhi women’s wing. “When it was time to marry,” Ilyas told me, “I wanted someone related to the movement. So I married her.” Was it a love marriage? I asked. “No, no,” he replied, looking offended. “Not at all.” Khanam burst out laughing. “Not for me either,” she said.

When their first child was born in 1987, Ilyas and Khanam named him after their favorite religious figures: the second caliph Umar ibn Al-Khattab, who is regarded as the father of Islamic jurisprudence, and the seventh-century military commander Khalid ibn al-Walid. Khanam took her son everywhere she went, including to religious gatherings.

To his parents’ disappointment, Khalid showed no interest in Islam. In his late teens, he declared himself an atheist. If Khalid had a religion, it was cricket. His dream was to play for India, like his hero Irfan Pathan. Khalid was an all-rounder with a special gift for fast bowling, and he gained a reputation for trash-talking opponents. Doted on by his family, the eldest child and only boy out of six kids, Khalid grew up self-confident and resilient. But starting in his late teens, he became preoccupied with the abject state of his neighborhood. 

Khalid’s home was in Zakir Nagar, a Muslim area of the capital known for being overcrowded and unsanitary. Dangerous coils of electric wires hung over the streets, and the pungent combination of sewage, livestock, and exhaust fumes lent the area its signature smell. “We [can’t] get pizzas delivered, you don’t get internet, you don’t get home loans,” a teenage Khalid had said about his neighborhood in a student documentary.

“He’d look at his classmates and think, ‘These people are from the same social class, so why do I live in a ghetto?’”

“He’d look at his classmates and think, ‘These people are from the same social class, so why do I live in a ghetto?’” said Anirban Bhattacharya, the friend in whose apartment Khalid recorded his farewell video. Khalid would come to realize that even privileged Muslims would rather raise their families in a ghetto than in a religiously mixed area, where their Hindu neighbors might turn on them.

Khalid’s political consciousness developed as he grew into adulthood. In 2008, when he was 21 and studying history at Delhi University, a police inspector and two young Muslim students who police described as terrorists were killed in a shootout near where Khalid grew up. The Batla House encounter — named for the area where the incident took place — remains controversial. Police have used so-called encounters to mask extrajudicial killings and support official narratives about threats to national security, including in Kashmir, where Indian security forces frequently claim they’re defending themselves in gun fights that kill civilians active in the region’s independence movement.

The police used the Batla House encounter to increase surveillance of Muslims in the area; stop-and-frisk became routine. For Khalid, it was a seminal moment in his understanding of how security agencies violently target Muslims, regardless of whether they commit a crime.

“I could see how deeply the injustice had affected him. He insisted on being present when the students’ last rites were carried out.”

“I was in the kitchen, and he came over and rested his head on my shoulder,” Khanam told me. “I could see how deeply the injustice had affected him. He insisted on being present when the students’ last rites were carried out.”

The stereotyping and ostracization of Indian Muslims had increased since September 11. Days after the attacks, U.S. President George W. Bush told a joint session of Congress, “Every nation in every region now has a decision to make: Either you are with us, or you are with the terrorists.” Eager to please a powerful ally, and with its own ax to grind, the Indian government, which was then also run by the BJP, banned SIMI, declaring it a terrorist organization.

Ilyas and Khanam had long left SIMI. In 1985, Ilyas started working for a media company; Khanam launched a boutique selling hijabs and organized literacy classes for adults from disadvantaged backgrounds. But the stigma of having once belonged to SIMI haunted the couple: The anti-terror law the BJP used to crush SIMI was the same one that, years later, it would deploy against Khalid.

Modi’s Reign of Terror

The Indian government’s determination to stamp out terrorism didn’t extend to Hindus, and by the early 2000s, Hindu extremist groups had been linked to numerous deadly attacks on Muslims, including the bombing of a train connecting India to Pakistan, a blast at Mecca Masjid in Hyderabad, and another blast at a mosque near Mumbai at the end of Ramadan.

The most notorious episode of Hindu terror in India’s recent history occurred under Modi’s watch in 2002, when he was chief minister of the state of Gujarat. After a train full of Hindu pilgrims caught fire, killing 59 people, Modi declared the incident a “terrorist attack” and had the charred bodies put on display at the state capital. According to Human Rights Watch, Hindu mobs immediately responded to the dog whistle with a frenzy of bloodletting that lasted three days and left at least 2,000 people, mostly Muslims, dead as police either stood by or participated in the violence. Despite accusations of complicity from several domestic and international human rights groups, Modi was reelected in a landslide victory later that year and became Gujarat’s longest-serving chief minister.

In 2005, after an investigation by the Indian government concluded that the train fire was an accident, the U.S. State Department denied Modi a visa to speak at Madison Square Garden in New York under a law that prohibits the entry of foreigners who have committed “particularly severe violations of religious freedom.” The Obama administration lifted the ban after Modi became prime minister.

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As India’s top elected official, Modi has harnessed the country’s already rampant anti-Muslim bigotry and weaponized the law to reward his acolytes and punish his detractors. The Modi government has empowered local right-wing officials and Hindu vigilantes to make life for many Indian Muslims not just difficult, but unbearable. Muslims have faced economic boycotts of their businesses and bulldozers destroying their homes after officials arbitrarily deem them illegal constructions. Several states have adopted laws that target Muslims, including criminalizing the slaughter of cows, possession of beef, and interfaith marriage.

Few Hindu vigilantes who have lynched dozens of Muslims have been arrested — even though many of these crimes were committed in public, captured on video, and shared online.

“Towards what end?” said Patel, the journalist. “Exclusion. Apartheid. To say, ‘We don’t want you.’ This is ideological. [Hindu supremacists] genuinely hate these people.”

Even punishments for past wrongdoing can be reversed at the government’s whim when the victims are Muslim. In August 2022, 11 Hindu men convicted of gang-raping their Muslim neighbor during the Gujarat riots walked free after an intervention from the government. Bilkis Bano was five months pregnant at the time of the attack. The men killed her 3-year-old daughter by smashing her head to the ground, as well as 14 other family members, including female relatives who were also sexually assaulted. They had been sentenced to life in prison, but a review committee decided to release them. A BJP politician on the committee told an Indian news outlet that the men were “honest people. … Their behavior in prison and the behavior of their family is very good.”

Modi has harnessed the country’s already rampant anti-Muslim bigotry and weaponized the law to reward his acolytes and punish his detractors.

In a statement released by her lawyer, Bano said the decision left her “bereft.” “I trusted the highest courts in our land. I trusted the system, and I was learning slowly to live with my trauma,” she said. “The release of these convicts has taken from me my peace and shaken my faith in justice.”

From the bold-faced discrimination and subjugation of Muslims emerged a vocal opposition to Modi and his Hindu supremacist agenda. In response, the government has used a legal dragnet to sweep up his critics and stifle dissent.

When it was first passed in 1967, the Unlawful Activities (Prevention) Act was only applicable to organizations; the Islamic State and Al Qaeda were later banned under the law. When Modi came to power, his government amended the UAPA so individuals could be accused of terrorism and detained for up to six months without formal charges.

“Every country has counterterror laws, but the UAPA does not meet international standards,” said Meenakshi Ganguly, deputy director of Human Rights Watch’s Asia Division. “Is Umar Khalid really comparable to the 9/11 terrorists? And if not, the government is undermining the entire principle of a legislation that is meant to protect the public from extremely brutal acts.”

Like Khalid, many Indians who have been charged under the UAPA are public figures who have spoken out against injustice and command widespread respect for their work. Stan Swamy, an 84-year-old Jesuit priest with Parkinson’s disease, was among 16 prominent human rights activists arrested on terrorism charges in 2018, accused of engaging in a Maoist plot to assassinate Modi. Swamy had moved to a remote area of eastern India about three decades earlier to live among Indigenous communities under threat from mining corporations, including Adani Group — owned by billionaire coal tycoon and Modi confidante Gautam Adani — that was permitted by the government to expand its mining operations on Indigenous forest land.

In prison, Swamy was deprived of a straw and sipper he needed to drink water. His requests for bail on medical grounds were denied multiple times. When he died of cardiac arrest in 2021, he was still awaiting trial. A U.S.-based digital forensics firm later found that the computers owned by Swamy and at least two other activists had been infiltrated by a hacker who planted evidence that was used to arrest them.

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When courts do grant bail in UAPA cases, it is under conditions that force once outspoken activists to exist as half-citizens. Safoora Zargar, one of the student leaders arrested after the citizenship protests, was granted bail two months later because she was pregnant. However, she was forbidden to leave Delhi without permission from the court and had to call the investigating officer on her case every two weeks. Zargar told me that her lawyers advised her not to speak publicly “just to be on the safe side.” Though she hasn’t given speeches since her release, she still attends protests and is active on social media, a decision she said she makes at “great personal risk.”

Modi’s critics have also been charged under an anti-sedition law introduced during British rule to imprison freedom fighters, including Mahatma Gandhi. According to Article 14’s database, from 2010 to 2021, 149 people were charged with sedition for making “critical and/or derogatory” remarks against Modi; the maximum penalty is life in prison.

Notably, young people are the most vulnerable to sedition charges. From 2015 to 2020, most of the people arrested for violating this law were under the age of 30.

“By crushing students of any sort, the government is stifling the political future of the country,” said Ganguly, “because from these students will emerge a democratic space with a variety of political opinions and a diversity of political thought that will enrich any democratic process.”

“By crushing students of any sort, the government is stifling the political future of the country.”

Last year, in response to nine petitions challenging its constitutionality, the Supreme Court suspended the law, asking the government to stop issuing sedition charges or punishing those already charged while the terms of the law are reassessed. The Law Commission of India, which is under the government’s purview, has argued not only that the sedition law should be reinstated, but also that the punishment should be more severe.

Despite the high-profile nature of many of the arrests, they rarely result in widespread protest, in part because the arrests are often the culmination of a media campaign in which government critics are vilified as anti-Indian. By the time these dissidents are imprisoned, the tide of public opinion may have turned against them.

Indians are so consumed by Modi’s brand of politics that they overlook the lack of jobs for young people and any real hope of a promising future, Harsh Mander, a human rights advocate who himself has been targeted by the government, told me. “They are persuaded by the idea of scapegoats, and they are willing to accept anything — hunger, joblessness, even bodies decimated by Covid floating down the Ganges — because they are preoccupied by something else: hatred.”

Khalid became one of Modi’s targets in 2016, when he and a group of fellow graduate students who had spent most of their adult lives with their noses stuck in books were branded enemies of the state.

“Creating a Witch Hunt”

I met Khalid in May 2016 while reporting on the events that had led to his arrest and those of other student organizers accused of sedition at Jawaharlal Nehru University in Delhi. Khalid, who had recently been released after nearly a month in jail, invited me to tea at the same outdoor café where, three months earlier, he and other students had held a vigil for a Kashmiri man accused of terrorism and hanged after a botched trial — an annual demonstration that the media blew up overnight into a national news story.

The JNU campus — like cinemas, malls, and other public venues in Delhi — had private security personnel at the entrance. When I arrived, there were also police officers in their trademark khaki uniforms, extra security introduced after the vigil. The air buzzed with the sound of walkie-talkies.

Once through the gates, I was transported from the crowded street full of potholes to broad, spotless vistas, lush greenery, and the unvarnished brick structures that the architect CP Kukreja had left exposed to match the red soil upon which they were built.

It was morning, and the café was full of students. Khalid was sitting at a table talking to a friend. He wore a kurta with jeans and stout sandals, a shawl thrown around his neck and shoulders. Though he appeared gaunt, Khalid was full of energy, his eyes intent, his speech fast. Between his fingers rested a Navy Cut cigarette, his favorite brand, which he bought in packs and smoked one after the other.

Khalid was working on his history Ph.D. at JNU, a liberal arts institution known for fiery intellectuals who have gone on to mold global ways of thinking, becoming political leaders, Nobel Prize winners, and renowned novelists. Here, Khalid was introduced to the works of Fyodor Dostoevsky, Vladimir Lenin, and Leo Tolstoy, and studied Karl Marx, whose vision for a stateless, classless society he came to believe was the best solution for a country as unequal as India. Khalid’s doctoral research focused on an Indigenous community’s struggle to maintain control over their land. He was so sure he wouldn’t leave India that he had never applied for a passport.

To some at JNU, Khalid’s ideas sounded like loony leftism. But his restless optimism, inquiring mind, and activist spirit made him popular and easy to get along with. He loved films and pestered friends to watch them with him, offering a play by play. He was also known as a prankster with what some have fondly described as “a cringeworthy sense of humor.”

To some at JNU, Khalid’s ideas sounded like loony leftism. But his restless optimism, inquiring mind, and activist spirit made him popular and easy to get along with.

“In the milieu in which I’ve grown up, I’ve known people who have been arrested on false charges,” he told me during our meeting, referring to people he’d met through his parents’ activism. “I know of people who have been brutally tortured or forced to sign false confessions or spend years in prison before being acquitted of all charges. I only spent 24 days in jail. That’s nothing compared to some.”

On the evening of February 9, 2016, Khalid, Bhattacharya, and other students marked the 2013 execution of a Kashmiri shopkeeper, Muhammad Afzal Guru. Though he had denied aiding the 2001 attack on India’s Parliament that killed nine people, Afzal Guru was sentenced to death based on what novelist and activist Arundhati Roy described as a “pile of lies and fabricated evidence.” For many, including the JNU students, Afzal Guru’s case represented a confluence of injustices: the use of capital punishment, the unfair treatment of Muslims by India’s criminal justice system, and state repression of Kashmiris. Past events to commemorate him had been held on campus without incident, so the students were taken aback when a TV crew showed up.

Members of Akhil Bharatiya Vidyarthi Parishad also came out. Since Modi’s election, ABVP and other Hindu supremacist student groups have increasingly acted as proxies for the BJP on college campuses. They rejected the existence of caste-based discrimination and used claims of “Hinduphobia” to deflect criticism. A month before the JNU event, members of ABVP at the University of Hyderabad had targeted a doctoral student who was Dalit, a member of India’s lowest and most disadvantaged caste. Rohith Vemula was subsequently suspended for fighting caste discrimination on campus; after the university upheld the decision, he hanged himself.

At JNU, ABVP had prevented the screenings of two documentaries critical of the BJP. But among most students, the group wasn’t despised so much as dismissed for being on the wrong side of history. Khalid referred to ABVP’s joint secretary as bhai, or brother. Another member of the group was Khalid’s neighbor, and Khalid often stopped by his place to bum a cigarette or a lighter.

At the event commemorating Afzal Guru, ABVP members heckled the organizers. “He who speaks of Afzal will die Afzal’s death,” they shouted.

The students replied with a call-and-response chant borrowed from India’s feminist movement: “What do we want?” “Freedom from hunger! Freedom from casteism!”

The scene was chaotic, but no one was hurt, and by the time the students were back in their rooms, many had already chalked up the evening as just another unpleasant encounter with India’s emboldened right wing.

The next day, however, #shutdownJNU was trending on Twitter. Confident that they had nothing to hide, Khalid and other student organizers responded to media requests for interviews. This proved a costly mistake. That evening, Khalid appeared on Times Now, a cable news channel known for its right-wing bias, as part of a panel discussion about the vigil.

“You are more dangerous to this country than Maoist terrorists,” screamed Arnab Goswami, the channel’s editor-in-chief at the time. “Someone is going to name you as anti-national, and I’m naming you as anti-national tonight.” Khalid, struggling to get a word in over Goswami’s berating, responded with a bewildered smile.

Over the next few hours, other cable channels adopted the same rhetoric, describing the students as pro-Pakistan and secessionist while running clips from the event on a loop. Khalid, with his Muslim name, was singled out. The channels labeled him the event’s “mastermind” — foreshadowing the accusations that would lead to his imprisonment years later — and falsely claimed that he had visited Pakistan. They called him a sympathizer of Jaish-e-Mohammed, a militant group listed by the U.S. Treasury Department as a terrorist organization, an accusation the media claimed was based on an Indian government report. The government later denied the report’s existence, but none of the news outlets issued a retraction.

“The regime wants to portray young Muslims as people influenced by Al Qaeda, ISIS, and Muslim fundamentalism,” Shuddhabrata Sengupta, an artist and writer who is a close friend of Khalid’s, told me. “By selecting Umar for persecution, the government sent out a signal to people like him.”

Within days, Modi’s home minister, the cabinet official responsible for national security, tweeted that he had ordered Delhi police to “take strong action against the anti-India elements” at JNU. The rhetoric ignited a public frenzy. Mobs of furious people converged outside the university gates, where they had to be held back by riot police. Fearing they would be lynched, Khalid, Bhattacharya, and other students fled the campus.

The mainstream media’s dependence on state support has enabled the Modi government to put political pressure on journalists, and as a result, most news outlets have yielded their independence. Veteran journalist Ravish Kumar — who coined the term “Godi media,” or lapdog media, to describe pro-Modi news outlets — has direct experience of what happens when news outlets resist falling in line. NDTV, where Kumar worked as managing editor, was subject to repeated raids by the income tax department before Adani, the billionaire businessman, bought the channel last November. On the day the buyout was made public, Kumar resigned.

“I’ve never seen TV used so successfully to whip up mass hysteria.”

As the mobs hunting the JNU students spread across the city and beyond, Kumar watched from the window of his apartment. “The atmosphere was terrifying,” he told me. “I’ve never seen TV used so successfully to whip up mass hysteria.” The next day, Kumar ran a black screen on his prime-time show, telling viewers, “This darkness is the picture of television today.”

The police issued wanted notices and warned border authorities not to let the students leave the country. On February 23, Khalid and Bhattacharya returned to campus prepared to be arrested. Bhattacharya referred to what happened next as being “pulled into a social experiment.”

The Delhi police charged Khalid, Bhattacharya, and three other students with sedition. Bhattacharya, an upper-caste Hindu, told me that prison authorities were baffled by his presence: “Khalid getting embroiled in these things one can understand, but why are you here, Bhattacharya sahib?”

Prison guards never spared an opportunity to taunt Khalid: “If you have to fight, why don’t you fight for reform in Islam?” He distracted himself in jail by rereading a favorite book that Lahiri, his partner, brought him on a visit, Roy’s “The God of Small Things.”

When the two friends were released on bail nearly four weeks later, the JNU administration fined them for holding the vigil. Most of their fellow students, however, welcomed them back as heroes, a response observers declared a “Student Spring.”

On the night of his release, Khalid gave a speech attended by thousands of people at an open-air courtyard christened Freedom Square.

“Friends,” Khalid said when the cheers died down, “I don’t know how to put my feelings into words. Things happened so fast that even now I haven’t been able to make sense of them. I think about them every day and wonder, ‘What happened?’” The crowd roared. Khalid took a beat and switched from English to Hindi, his tone becoming serious.

“But the one thing that’s crystal clear,” he said, “is that if the government, the RSS thought that by profiling some of us, by creating a witch hunt, that they could break us and destroy our movement and unity and courage, well, they were delusional. Today, as I stand before you, I feel even stronger than I did, and this is a huge victory for our fight.” 

“What do we want?” he shouted. “Freedom!” the crowd screamed back.

“It was very clear that students would play a vital role against the authoritarian regime,” Bhattacharya told me. “And it was evident from the way the government moved that they believed the attack on JNU was going to silence students in this country for some time to come.” But for Khalid, this was only the beginning.

As we chatted at the café a few months after his release, Khalid was constantly interrupted by well-wishers. He politely stopped talking to respond to the “hellos” and “how are yous.” I got the feeling that after the initial shock had worn off, Khalid had accepted that his life would be very different — and that he would embrace his new role as an act of citizenship.

“People are listening to us,” he told me. “Our task is to foreground questions that haven’t been highlighted.” His immediate goal, he said, was to bring together students, activists, Indigenous communities, and trade unions in a broad-based “anti-fascist front.” For a moment before the pandemic hit, his vision of popular resistance became a reality. But it cost him his freedom.

“How Much Has the Country Changed?”

Khalid’s powerful campus speeches gained national attention, and soon, he was getting invited to share his message all over the country.

But some were bent on keeping Khalid from the podium. On August 13, 2018, while he and Lahiri were waiting for chai at a tea stall outside Delhi’s Constitution Club where he was scheduled to speak, a tall, beefy man lunged at Khalid and threw him to the ground. Lahiri and some others hurled themselves at the assailant, but he shrugged them off and pointed a gun straight at Khalid. “The man’s face was blank,” Lahiri told me. Suddenly, he ran away, tossing the gun.

When police retrieved the weapon, they discovered six live rounds. “You’re a very lucky man,” an officer told Khalid. “He pulled the trigger, but the gun somehow jammed.” The alleged assailant and an accomplice were later arrested but released on bail. The next year, the assailant was backed by a political party with Hindu supremacist ties to run in a local assembly election, which he lost.

The assassination attempt convinced Khalid that the only place he would be safe was in a Muslim neighborhood. Khalid stopped taking public transport, friends recalled, and he wouldn’t travel alone. He was constantly looking over his shoulder. “Earlier, the threat to his life was hypothetical,” Lahiri said. “Now it was real.”

But Khalid was undeterred from his mission to rally the masses against Modi. During a Facebook Live event with the human rights activist Teesta Setalvad in January 2019, he told viewers that Modi’s regime was based on “jumlebaazi” and “nafrat,” the Hindi words for false promises and hate, respectively, adding: “His government is run on lies.”

He also continued to face hurdles on campus. The JNU administration refused to accept Khalid’s Ph.D. thesis, effectively preventing him from receiving his degree. The Delhi High Court intervened, and after a successful thesis defense in August 2019, Khalid found himself at a loose end. He thought about applying for a postdoctoral research fellowship, but he didn’t exclude the possibility of becoming a politician.

“It was no longer about putting out a pamphlet or having a polemical debate — it was about community, aspirations, and citizenship.”

“Earlier, his ideas were evolving within a university campus,” Bhattacharya told me. “Now the canvas was much larger. It was no longer about putting out a pamphlet or having a polemical debate — it was about community, aspirations, and citizenship.”

Bhattacharya said Khalid wanted to shape how Muslim youth facing second-class citizenship envisioned their futures. “He was frustrated that the community was reduced to saying, ‘Humko bas jeene do’ — ‘Please let us just live,’” he said. “Muslims were being lynched, so of course safety was important, but he was also trying to broaden the idea of citizenship to include other rights. He wanted people to live in full bloom.”

On the second anniversary of Khalid’s imprisonment in September 2022, I went to a public park in central Delhi to meet Lahiri, Khalid’s partner. It was dusk when I arrived; a human-made lake glittered in the dwindling light, and birds of prey surveyed the grounds with sharp-eyed interest. Though Lahiri was only a few minutes late, she was very apologetic. She explained that she lived in Jamia Nagar, a predominantly Muslim neighborhood about 40 minutes away, near where Khalid grew up. She had remained there so that he would one day have a familiar place to come home to. 

Lahiri, a 39-year-old research scholar focused on minority rights, was born in Kolkata, the capital of West Bengal, to a biology teacher and a chemist who were members of the Communist Party of India (Marxist), one of India’s long-established left-wing political parties. Lahiri was a student at JNU when she first met Khalid while counseling students harassed by police in the aftermath of the Batla House encounter. When Khalid enrolled at JNU the following year, the two reconnected. He and Lahiri helped co-found a group called United Against Hate after Khalid’s 2016 arrest to address the rising mob violence against Muslims.

“We were, like, very hot-headed radicals and all that,” Lahiri told me with a laugh. “Politics was and continues to be the cornerstone of our relationship.”

Less than a year into Modi’s second term, the government passed a citizenship law that signaled to Indian Muslims that they were no longer welcome in their own country. The Citizenship Amendment Act, or CAA, would make it nearly impossible for Muslim migrants to become citizens in India. The law was twinned with a planned nationwide campaign to force people already living in India to prove they belonged there.

Mander, the human rights advocate, called the citizenship law the first of its kind in India’s history to target one community. “It was meant to destroy the way we imagined this country, how we built it, and the promises of the constitution,” he told me.

“It was meant to destroy the way we imagined this country, how we built it, and the promises of the constitution.”

The potential impact of the plan was already playing out in the northeastern state of Assam, which is controlled by the BJP. The state, which shares a border with Muslim-majority Bangladesh, has long been depicted by the right as a hotbed of illegal immigration. As a part of the citizenship drive there, the state’s 33 million residents, many of whom are poor, illiterate, or itinerant, had to produce documents certifying their date and place of birth. The cruelty of this laboratory experiment became clear when 2 million people, including many Muslims, were struck off the citizenship rolls.

Declared “foreigners,” many were sent to detention camps within existing jails. In January 2023, news reports said that detainees would be transferred to India’s first immigration detention center as more such camps sprouted, creating the fearsome specter of a country where Muslims are kept in cages.

Protests started in Assam and quickly spread to the rest of the country. In several cities, the peaceful gatherings, known as the anti-CAA protests, were led by students on Muslim-majority campuses. They recited the preamble to the constitution, which mandates a secular state. They unfurled the national flag and shouted slogans such as “Keep dividing, we will keep multiplying,” and “Asking questions isn’t anarchy; abusing power is.”

Days after the law was passed, police unleashed their arsenal on student protesters at Jamia Millia Islamia, a renowned Muslim university in Delhi. CCTV footage showed police in riot gear storming the glass doors of the library, where students were engrossed in their work, and thrashing them with hefty bamboo sticks. One student was so badly wounded that he lost his left eye. In a hearing calling on the Delhi High Court to investigate the violence, a lawyer representing injured students said the police fired 452 tear gas cannons.

Lahiri told me she could hear the firepower from her and Khalid’s apartment: “I felt like I was in a war zone.”

The Indian government imposed an internet blackout to try to stop the protests. Still, they continued. So many hundreds of people were detained in Delhi that the police sought permission from the city to convert a sports stadium into a temporary prison.

As the protests and police violence raged, about 100 women sat down to block a main road in the largely Muslim neighborhood of Shaheen Bagh. Their sit-in lasted through the night into the morning and kept going. Every day, more and more people from all over the city joined them. “Hum Dekhenge,” or “We Shall See,” by the poet Faiz Ahmed Faiz, became their anthem:

Underneath our feet — we the governed.
The ground will echo like a thumping heartbeat
And the sky over the heads of the rulers
Will echo with the sound of thunder.

“It was one of the most beautiful things I have ever seen,” Lahiri told me. “I haven’t seen the Paris Commune, but I’ve seen Shaheen Bagh.”

Shaheen Bagh inspired sit-ins across the country, and Khalid was deluged with speaking invitations. From December 2019 to February 2020, he spoke at almost 70 sites.

“Seventy-two years after independence, Muslims are still being told to prove that we are patriots,” he told a crowd of protesters in Mumbai on December 27. “Even today we’re told, ‘You got Pakistan, what more do you want? You’ve divided the country once, now what do you want?’ To them I’d like to say, ‘We’re not Indians by chance. We’re Indians by choice.’’’

“The fact of us being here is proof of our patriotism. Muhammad Ali Jinnah was not our leader, is not our leader. Mahatma Gandhi is our leader. … Narendra Modi said, ‘I feel happy seeing [Muslims] wave the flag.’ Mr. Modi, the flag has been in our heart, and in our hands, since 1947. It took you people more than 50 years to raise the tricolor at the RSS headquarters. We don’t need a certificate of patriotism from you.”

“He spoke very bravely, very charismatically,” said Mander, who sometimes shared the podium with Khalid. “He was by then a political leader with significant clout.”

The moment of mass resistance was short-lived. On February 23, 2020, Kapil Mishra, a Delhi BJP leader known for his hateful rhetoric, incited his followers to forcibly remove women from their protest sites if the police did not take action.

“Those who clean the toilets of our homes, should we now place them on a pedestal?” he asked at a gathering of BJP supporters. “We will have to teach them a lesson.”

The next day, Mishra’s followers started attacking protesters with guns, swords, spears, and stones. The violence quickly expanded to target any Muslim regardless of their involvement in the demonstrations, as the mob destroyed cars and threw petrol bombs at shops, homes, mosques, and madrasas. Lahiri, who was in Bihar with Khalid at the time, told me her phone exploded with messages from friends in Delhi reporting “horrible violence.”

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The next day, Trump landed in India. While Trump was fêted by Modi in front of 100,000 people in a stadium in Ahmedabad, in Gujarat, and lunched with the prime minister on leg of lamb, mushroom curry in saffron gravy, and date halwa, 53 people, mostly Muslims, died, and more than 500 were injured. Many Delhi police officers either stood by or attacked Muslims themselves, in a display reminiscent of the Gujarat riots 18 years earlier. The deputy commissioner of police had stood beside Mishra during his speech and was later seen shaking hands with members of the mob.

When police began investigating the violence, they focused not on the perpetrators — many of whom had been caught on camera or identified by their victims — but on the protesters. Nearly 2,500 people were arrested, including 17 high-profile activists who had galvanized the anti-CAA protests as organizers and speakers. Modi had described the protests as a “conspiracy against the country,” and the activists were charged with conspiracy, as well as sedition and murder.

“Claiming that the violence was a conspiracy by the left and Muslim activists to create an insurrection to force a regime change is fantastical,” said Mander, who was investigated as part of the crackdown but not charged.

Police pinned Khalid as a “ringleader,” despite ample evidence that Mishra had whipped up his followers. A month after many of the arrests, the charges against Khalid and the 17 other activists were updated to include offenses under UAPA.

Police pinned Khalid as a “ringleader,” despite ample evidence that Mishra had whipped up his followers.

Khalid was detained on September 13, 2020. In October 2022, the Delhi High Court rejected his appeal for bail, declaring that the charges against him were “prima facie true.” As proof, they pointed to the fact that Khalid was in a WhatsApp group set up by a student activist who had also been charged with conspiracy and was still in prison.

The court’s decision affirmed what human rights defenders have said all along about India’s terror law: that the charge is the punishment.

“There’s no evidence that Umar Khalid was engaged in violence,” Ganguly of Human Rights Watch said. “So on what grounds is UAPA being used against him? Simply because he made statements the government disliked?”

Khalid refused to let his imprisonment take away his voice. In a letter published by The Wire, an Indian news site, Khalid wrote: “On Independence Day, in the evening, I sat outside the prison cell with a few others. We saw kites flying high above our jail compound and reminisced about our childhood 15th August memories. How did we reach here? How much has the country changed?”

He spent most of his time in jail alone because he’d grown weary of trying to convince fellow inmates that what they read about him in the newspapers was not true.

“Now, the sight and sound of people and traffic during my visits to court make me irritable and anxious. Far from the madding crowd, the tranquility of jail is starting to become my usual,” he wrote. “I wonder, am I getting used to captivity?”

A Taste of Freedom

One Friday afternoon in December, Lahiri was startled awake from a vivid nightmare. It was bitterly cold in Delhi, but she was soaked in sweat. Before she could process her dream, she realized she had only three minutes to log into her video call with Khalid. She couldn’t miss it, or he would worry. He would think that now she was in danger.

Lahiri sat up in bed and reached for her phone. When she joined the call, she saw an empty chair, and her face in the small top-right window peering anxiously down at the screen. She felt a pinprick of anxiety. Would the sound work? Would the internet connection be stable? Would he even come? Until Khalid sat down and smiled at her, she could never be sure the call would happen.

After five long minutes, Khalid finally appeared. He affectionately commented on her hair, disheveled from the nap. “Why are you looking like this?” he laughed.

She told him about her dream. In it, the police allowed Khalid to visit JNU to meet his friends, and many students gathered to get a glimpse of him. How happy they were! But then the police, threatened by the growing crowd, chased them away, and suddenly, members of the ABVP, the right-wing student group, emerged from the fog to lynch him.

Khalid burst out laughing. But when he saw that Lahiri wasn’t amused, he reassured her. “It’s just a dream,” he said. “It’s not real.”

“I should be consoling him,” she told me later, “not the other way around. But he does more of the consoling.”

The two saw each other via video once a week. Khalid was also entitled to a mulakat, or in-person meeting, every week at Tihar jail, where he is imprisoned. His family and friends divided the dates to ensure that he always had a visitor.

Bhattacharya told me that visiting his friend in jail evoked a range of emotions from grief to guilt. After being arrested for sedition at JNU, he had stepped back from activism; his case is on hold while the law is under review.

“I come to the office, I have a drink with a friend, go for fieldwork, go to eat out, buy new clothes,” he said. “Of course, there barely passes a day when I don’t think, ‘When will he come home?’ or ‘He would’ve done this,’ or ‘He would’ve loved watching this film,’ or how he is so irritating. But the clock of life hasn’t stopped for me — the way it has for him.”

Tihar is considered one of India’s progressive jails, offering inmates counseling services, yoga classes, and sports facilities. But it is also overcrowded, with more than 13,000 prisoners crammed into a space built for 5,000. When Khalid first arrived, prison staff put him in a cell by himself instead of the army-style barracks typical of Indian prisons. Under the pretense of safety, he was locked up 24 hours a day; after 30 days, Khalid approached the Delhi High Court for relief from “practically a sort of solitary confinement.” The court granted his request, and since then, he has followed the same routine as the other prisoners, who include an Olympian charged with murdering a fellow wrestler.

Sometimes, Khalid can’t help but shake his head at how he ended up here. “Kabhi kabhi, I feel like I have never even hurt a person,” he told Lahiri during another call. “I have never even, you know, injured a person. And here, there are people accused of multiple murders — and we are together, in the same space.” 

With his parents, Khalid is less ruminative and more of a jokester. On a recent call with his mother, he quipped, “The other prisoners tell me, ‘We’re here because we killed someone, but you’re here because you did a Ph.D.’”

When Khanam asked, “And how are you, my son?” Khalid responded, “Very well, you tell me.”

“Very well? Are you on holiday in Switzerland?” Only from Khalid’s lawyer did Khanam learn that her son was strip-searched prior to every court appearance.

Khalid has tried to make the most of the past few years awaiting trial. Under the tutelage of the Olympian, he started lifting weights. He also returned to his first love, cricket, and took up badminton.

Without a phone or social media to distract him, he reads constantly, borrowing books from the prison library and asking friends and family to send more. Lahiri estimated that he’s read nearly 200 books while incarcerated. He recently finished Haruki Murakami’s “Norwegian Wood” and “Not Just Cricket: A Reporter’s Journey Through Modern India” by sports journalist Pradeep Magazine. He has filled dozens of notebooks with musings on prison life and published five articles, including a review of a graphic novel about Shaheen Bagh and an obituary for the Indian historian Ranajit Guha.

After Lahiri recounted her dream, the conversation quickly moved to lighter topics. They joked about how they had missed two “dates,” a pun on Khalid’s court dates that had recently been canceled. Khalid spoke proudly about how he had quit smoking. He told Lahiri that when he is released, he wants to learn how to swim.

Khalid spoke proudly about how he had quit smoking. He told Lahiri that when he is released, he wants to learn how to swim.

The jail imposed a strict 15-minute time limit for video calls, but Khalid often begged for more. Two minutes, please, he asked the police officer in charge. But ultimately, it was time to go.

“Chalo ab jaana hoga,” he told Lahiri — Now I really have to go. “Bye,” he said, “I love you.”

“Bye, I love you,” Lahiri replied. He disappeared. The screen was now filled with just her face.

This past winter, a Delhi district court granted Khalid a week’s bail to attend his sister’s wedding. The family had planned three celebrations: a haldi, mehendi, and nikah. The court set strict conditions: Khalid could only leave his parents’ house for the nikah, the Islamic marriage ceremony. He couldn’t talk to the media or the public. Still, Lahiri recalled wistfully, “It was wonderful.”

All his closest friends came to see him, often staying past midnight. “He’s a chatterbox, so most of the time, we were listening,” Bhattacharya told me.

For the first 48 hours, Khalid didn’t sleep. He met his twin nieces, who were born while he was in prison. He ate pizza. He rested his head on his mother’s lap and closed his eyes as she gently stroked his hair. “Ammi, I’ll only eat non-vegetarian food,” he warned her, tired of the prison menu of rice and dal.

Sometimes he went up to the roof of his parents’ apartment building to look over the city. When would he walk the streets again as a free man?

On the day of the nikah, Khalid wore a bespoke black sherwani, a traditional knee-length jacket, over white trousers. Lahiri and his friends stood protectively around him — he was under as much scrutiny from guests as the bride herself. He was overwhelmed, Lahiri told me. Although he enjoyed the festivities, it was impossible to forget that he was on borrowed time.

“This will be over soon,” he said again and again.

An entourage of family and friends accompanied Khalid back to Tihar. When they arrived at 5 p.m., sympathetic staff told them that since the prison gates didn’t close until 6, they could hang around for another hour. The group drank chai from a street vendor, but no one spoke much. Khalid wore black trousers and a warm sweater and carried a small duffle bag with items he was allowed to take in: fresh clothes, a second pair of reading glasses. When it was time to go, he raised his fist, a wide smile on his face.

Back inside, Khalid fell into a deep depression. “If you taste freedom for seven days, the ‘unfreedom’ becomes stark,” Lahiri told me. A few weeks later, he was back to what had become his normal routine. 

Khalid periodically appears before a judge for a bail hearing over whether he must remain incarcerated, with the next one scheduled for August 9. Eventually, a trial date will be set, said Ganguly of Human Rights Watch, adding that the charges against Khalid are unlikely to withstand judicial scrutiny.

“There’s no evidence that he’s engaged in anything that could be considered a violent act against the state,” she told me. “He’s never wielded a weapon. In fact, he’s been targeted and attacked. At some point, a judge will overturn the charges, but by then, he would have spent many years in jail.”

While they wait and hope that day comes sooner, Khalid and Lahiri will keep competing to make each other laugh. The joy they are still capable of feeling, Lahiri told me, is their resistance.

“We don’t know what’s going to happen to him. How can we when the whole thing is a farce?” she said. “But it can’t go on for eternity. It will come to an end, and until it does, we must be happy. Because if we are not, they win. So we’ve decided to be happy just as things are. And no one can take that away from us.”

Correction: August 7, 2023
A previous version of this article stated that the Delhi High Court rejected Umar Khalid’s appeal for bail in October 2020. This happened in October 2022.

The post Umar Khalid Challenged Modi’s Anti-Muslim Agenda. India Accused Him of Terrorism and Locked Him Up. appeared first on The Intercept.

As Nixon rambled and ranted — calling for more strikes by bombers and helicopter gunships — Kissinger’s replies were short and clipped: “Right.” “Exactly.” “Absolutely, right.” We know this because, while Nixon was fuming about “assholes” who said there was a “crisis in Cambodia,” the conversation was being recorded. It wasn’t the secret White House taping system that finally laid Nixon low as part of the scandal that came to be known as Watergate, but Kissinger’s own clandestine eavesdropping system. Later, it was up to Kissinger’s secretary Judy Johnson to transcribe that night’s exchange and add in the single, double, triple, and even quadruple exclamation points to capture the spirit of the call and accurately punctuate the president’s words.

Johnson was new on the job when she heard the December 9, 1970, exchange. She was just one of many Kissinger secretaries and aides who, during his years working for the White House, either listened in on an extension and transcribed conversations in shorthand or typed up the transcripts later from Kissinger’s own Dictabelt recording system that, according to Bob Woodward and Carl Bernstein’s 1976 book “The Final Days,” was hooked up to a telephone “housed in the credenza behind his secretary’s desk and … automatically activated when the telephone receiver was picked up.”

The transcripts offer a window into policymaking in the Nixon White House, Kissinger’s key role, and how so many Cambodians came to be killed by American military aircraft. Johnson was somewhat reluctant to talk about them and expressed surprise that they were publicly available.

Decades later, the heated December 1970 exchange didn’t stick out in Johnson’s mind, she told The Intercept. None of their conversations did. It was a long time ago and, she said, “there was a lot of stuff going on” at the White House. Johnson didn’t know whether Nixon was aware of Kissinger’s eavesdropping activities or why her boss recorded all his calls. Ask him yourself, she said. When I tried to interview him, Kissinger stormed off and his staff ignored follow-up requests for more than a decade. Johnson also cautioned that it was very hard to get an accurate sense of a conversation from the transcripts alone. There were nuances, she said, that were missing.

“Those conversations were strenuously edited,” said Roger Morris, a Kissinger aide who resigned in protest of the U.S. invasion of Cambodia in 1970 and had listened to many conversations between Nixon and his national security adviser. The men and women who took down the text didn’t completely eliminate the spirit of the conversations, but if you were listening to calls in their raw, original form, it was more disconcerting. “It was worse because the words were slurred and you knew you had a drunk at the other end,” he said of Nixon.

Did Johnson suspect that Nixon had been drinking when he called to direct policy and give orders? “If I did, I wouldn’t tell you,” she said. Any evidence is apparently gone forever. In a 1999 letter to Foreign Affairs, Kissinger claimed that the tapes of phone calls made in his office were destroyed after being transcribed. No notes or other materials involved in the transcription survived either, according to a 2004 report by the Nixon Presidential Materials Staff of the U.S. National Archives.

Johnson joined Kissinger’s staff in late 1970, before moving on to the White House press office in 1971 where she stayed until Nixon’s resignation in 1974. After a brief stint in the administration of President Gerald Ford, she moved to California and worked as a researcher for Nixon, who was then writing his memoirs. She might have been starry-eyed when she first arrived at the White House, she told me, but listening in on high-level phone conversations quickly disabused her of the notion that these were “super people.” She termed Nixon’s coarse talk “typical male language.”

Johnson took down Kissinger’s conversations using shorthand, she told me, repeatedly emphasizing how difficult it was to transcribe conversations like these perfectly. A “shit” or a “damn” might go missing, but there was no deliberate censorship and nothing was sanitized, she said. Morris recalled it differently. While Nixon’s remarks might be prettied up, he told me, it was Kissinger’s own acid-tongued ripostes that subordinates were supposed to excise to protect their boss. Privately, Kissinger called Nixon a madman, said he had a “meatball mind,” and referred to him as “our drunken friend.” 

“I just had a call from our friend,” Kissinger told his aide Alexander Haig moments after getting off the phone with Nixon on that December night, according to Johnson’s transcript. The president “wants a massive bombing campaign in Cambodia,” Kissinger told Haig. “He doesn’t want to hear anything. It’s an order, it’s to be done. Anything that flies on anything that moves. You got that?” In a notation, Johnson indicated that while it was difficult to hear him, it sounded as if Haig started laughing.

When I mentioned these orders and asked about Nixon’s drinking, Johnson emphasized that there were buffers in place. Policy changes, she told me, weren’t as simple as a presidential order given by phone. Many discussions would occur before instructions were carried out. But Kissinger’s immediate and blunt relay of Nixon’s command suggests otherwise. The raw number of U.S. attacks in Cambodia does too. While they had no explanation for it at the time, The Associated Press found that compared with November 1970, the number of sorties by U.S. gunships and bombers in Cambodia had tripled by the end of December to nearly 1,700.

Was the reason for it — and the Cambodian deaths that resulted — a drunken president’s order, passed along swiftly and unquestioningly by Henry Kissinger? Nixon and Haig have been dead for many years, and Johnson passed away earlier this month. That leaves only Kissinger to answer the question — and to answer for the deaths.

The post Transcripts of Kissinger’s Calls Reveal His Culpability appeared first on The Intercept.

A previously unrevealed military investigation — declassified in the 1980s but buried deep in the files of Vietnam War-era inspector general’s documents in the nation’s archives — shows that after U.S. soldiers were caught looting Snuol in May 1970, the Army launched a pro forma investigation, worked to minimize the story, and even tried to blame the press corps for sacking the town. The Army, however, never questioned its own reporter on the scene: a journalist working for the venerable U.S. military newspaper Stars and Stripes. In an interview with The Intercept, he laughed at the notion that journalists had looted Snuol.

The Snuol revelations are part of an exclusive archive of U.S. military documents assembled by The Intercept as part of a reflection on the life and crimes of Henry Kissinger, who will turn 100 on Saturday. 

Kissinger, the architect of America’s 1969 to 1973 bombing of Cambodia and a proponent of the 1970 invasion, acknowledged that 50,000 Cambodian civilians were killed during his tenure crafting America’s war policy. Experts have conservatively estimated the actual total may be three times higher.

The Sack of Snuol

On April 28, 1970, Nixon issued an order that was opposed by his secretary of state and secretary of defense but endorsed by Kissinger: The U.S. military would invade Cambodia. Two days later, in a televised address to the nation, Nixon announced the assault and offered a history lesson loaded with lies. Since 1954, when an international agreement formally ended a U.S.-backed French war to maintain their colonies in Indochina, he said, U.S. policy had been “to scrupulously respect the neutrality of the Cambodian people.” His statement belied the covert cross-border missions and secret bombings being carried out — and hidden from the American public and Congress — on his orders throughout the previous year. “In cooperation with the armed forces of South Vietnam, attacks are being launched this week to clean out major enemy sanctuaries on the Cambodian-Vietnam border,” he continued. “This is not an invasion of Cambodia. … Our purpose is not to occupy the areas. Once enemy forces are driven out of these sanctuaries and once their military supplies are destroyed, we will withdraw.” 

U.S. troops and armored vehicles streamed across the border but encountered few enemy soldiers and saw little pitched combat. Kissinger had “no doubt about the operation’s success” and publicly described it as a victory, but the CIA later determined that the capability of enemy forces in Cambodia had not been “substantially reduced,” while the National Security Agency deemed the invasion an “unmitigated disaster.”

Four Kissinger staffers resigned over their boss’s role in planning the invasion, arguing that it would achieve none of its objectives and lead to “blood in the streets” at home. They were right. As predicted, the “incursion” sparked widespread campus unrest across America, including at Kent State University, where members of the Ohio National Guard killed four students during a protest a few days later. 

A week after the killings at Kent State, FBI Director J. Edgar Hoover rushed Nixon and Kissinger a report on the private phone conversations of Morton Halperin, a Kissinger protégé and national security aide whose home phone Kissinger had ordered tapped. According to an FBI transcript, Halperin predicted that the “most certain consequence” of the invasion would be “that a large number of Cambodian civilians would be killed and labeled Viet Cong.” He, too, was right. 

As U.S. troops plowed through the countryside, the 2nd Squadron, 11th Armored Cavalry Regiment was tasked with taking the town of Snuol. According to Army documents, Brig. Gen. Robert M. Shoemaker ordered that minor resistance should not necessitate the town’s destruction. “Try to avoid shooting into crowds of civilians,” his subordinate Lt. Col. Grail Brookshire, the commander of the 2nd Squadron, 11th Cavalry Regiment, told his men on the outskirts of the town, according to an account from New York Times reporter James Sterba, who was there to cover the battle. “In other words, if you’re taking light fire and there are civilians in the area, try to return the fire without losing all the fuckin’ civilians.” In a recent conversation with The Intercept, Brookshire emphasized that when his forces encountered a mixed group of North Vietnamese troops and “Cambodian refugees,” he would not allow his men to open fire on them. 

When they encountered enemy resistance as they entered Snuol, Brookshire nonetheless ordered his tanks to turn their guns on the town and called in bombers and helicopter gunships, leveling buildings to dislodge North Vietnamese forces. The next day, Brookshire’s men moved fully into Snuol. 

While it was a major battle in the U.S. incursion into Cambodia, the invasion of Snuol wasn’t significant in terms of the wider war in Indochina. Taking the town did not cost a single American life and left only five U.S. troops wounded. Leon Daniel, a former Marine and Korean War veteran who covered the operation for United Press International, rode into Snuol on one of the Army’s tanks. “The only dead I saw were obviously Cambodian civilians, but the U.S. Army claimed later it had killed 88 Communist troops in the area,” he wrote. “I doubt it.” All told, he saw four dead: a little girl and people he assumed were her family. They had all been killed by napalm. He also watched U.S. soldiers

helping themselves to what little was left in an area of shops that had been destroyed. The first items taken were beer and soft drinks because it was very hot. Other GIs took suitcases, mirrors and shoes. I saw a motorscooter strapped to one tank. … Other soldiers broke locks off a few sheds that were still standing. One shed was set on fire after it was looted of several cases of batteries.

Associated Press reporter Peter Arnett described soldiers smashing open the doors of shops to steal watches, clocks, and other items before setting the stores ablaze. “I saw one soldier run from a burning Chinese noodle shop with his arms full of Cambodian brandy … and two others wheeled out motorcycles and tied them to the turrets of their vehicles,” he recalled in his 1994 memoir “Live From the Battlefield.” “After about an hour of looting and merrymaking an officer came by and yelled, ‘Get your hands off that stuff, we’re moving on.’ The soldiers laughed and mounted their vehicles.”

Looting or Lies?

While Arnett’s dispatch from Snuol was published in its entirety around the world, the versions carried by American news organizations were missing a critical piece of reportage: any mention of the looting. The AP had decided, in the wake of the killings at Kent State, to censor the story. “Let’s play it cool,” Ben Bassett, the late, longtime foreign news editor of The Associated Press wrote in a cable to the AP bureau in Saigon, explaining that “in present context [mention of the looting] can be inflammatory.”

With the AP’s Saigon staff up in arms, Arnett fired off a message to the home office. “I was professionally insulted by New York’s decision to kill all my story and picture references to the Snuol looting on grounds that it was inflammatory and not news,” he wrote, recounting the cable in his memoir. “To ignore the sordid aspects of America’s invasion of Cambodia would surely be a dereliction of a reporter’s duty and I find it impossible now to continue to compromise my reporting to suit American political interests.” Arnett, who had previously won a Pulitzer Prize for his coverage of the war in Vietnam, then leaked the story of AP’s censorship to Kevin Buckley of Newsweek, who had also reported from Snuol.

With the press and Congress demanding answers, the Army launched a cursory investigation into “the extent of damage… and the veracity of news accounts” about U.S. troops’ role in the looting, according to the formerly classified Army records.

“My soldiers haven’t been looting,” Brookshire had told a TV crew. But footage showed otherwise. A soldier was filmed handing bottles to a colleague on a tank who said, “If you find any more sodas, get ’em.” Another was seen pilfering a radio. Still another was caught rooting through a shed.

“I don’t know what kind of Scotch it was because the label was in Cambodian,” one of Brookshire’s men told Gloria Emerson of the Times, “but it wasn’t bad at all.” As civilians drifted back into Snuol, they found a sea of debris: shattered glass, burned bicycles, twisted metal, and busted bricks, amid huge craters that had swallowed up homes and shops. “We want no shooting or killings by anyone here, and look what has befallen us,” one resident told Emerson. “We just want to earn our living.”

Blaming the Messengers

In June 1970, the Army concluded its investigation into the sack of Snuol. About half the structures in Snuol were “destroyed or damaged” by U.S. bombs, napalm, tank rounds, and small arms fire, according to an inspector general’s report. The Army also discovered more dead Cambodians than reporters had seen, noting that troops found 11 bodies “presumed to be civilians.”

“Reports of looting and pillage are confirmed by statements in the file,” a follow-up report by an Army staff judge advocate noted. That report corroborated accounts of soldiers stealing a “motorbike, cases of soft drinks, sunglasses and razor blades,” while disputing reports that GIs pilfered Cambodian currency, beer, and other items. 

The staff judge advocate’s report stated that there was “no evidence of a general rampage through undestroyed shops” and raised an alternate theory about the looting: Any theft “was done by civilian reporters in their wandering about the village.”

The Times’s Sterba never made it into Snuol, and Newsweek’s Buckley said that he left before the looting occurred. Gloria Emerson and Leon Daniel died in 2004 and 2006, respectively. However, The Intercept spoke with one reporter on the scene who should have been first on the Army’s witness list.

While the Army’s investigation failed to mention it, the military’s own newspaper, Stars and Stripes, had a reporter in Snuol. Army Specialist Jack Fuller — who went on to win a Pulitzer in 1986 and serve as editor and publisher of the Chicago Tribune and president of the Tribune Publishing before his death in 2016 — rode into Snuol atop one of Brookshire’s tanks. He watched as 11th Cavalry troops began stealing radios, soft drinks, and alcohol.

“I knew it was a story,” he told The Intercept in a 2010 interview, speaking of his article, which included an account of GIs pillaging the town. “Looting of any dimension by American soldiers was a story for Stars and Stripes, in my view.”

Fuller laughed out loud when I read him the staff judge advocate’s conjecture about the civilian press looting the town. “I certainly saw no correspondents grabbing anything,” he said, noting that, unlike soldiers, members of the media had easy access to alcohol and no need to steal it. 

Fuller recalled running into Arnett after the flap with AP. “He said: ‘For god’s sake, AP kills my story and Stars and Stripes runs yours. Stripes has more courage than AP,’” Fuller told me, noting that he had mentioned the looting deep in his story, while Arnett reported it more prominently in his article. 

Arnett did not respond to email inquiries to be interviewed for this story.

The Butcher of Snuol

In June 1970, an Army spokesperson announced that the looting in Snuol was limited to “several, perhaps five or six, cases of soda pop, which were consumed.” A motorcycle that was taken had been returned to its owner, the Army said, and a tractor would be returned once its owner was located. 

No mention was made of the theory that the press had pillaged Snuol.

The two-month Cambodian incursion left 344 American soldiers and 818 South Vietnamese troops dead. There were, however, “no reliable or comprehensive” statistics for Cambodian civilian casualties, although the Pentagon estimated that the operation rendered 130,000 Cambodians homeless. The invasion proved only a minor inconvenience for North Vietnamese forces in Cambodia. By the end of June 1970, most U.S. troops had left the country, and the North Vietnamese soldiers had moved back into the region around Snuol. By late October, America’s South Vietnamese allies were fighting their way back into the town.

Grail Brookshire did, however, get something out of the incursion. His troops’ looting of Snuol became a joke — and Brookshire gave himself a grisly, though tongue-in-cheek, nickname. 

In a conversation this month, Brookshire defended his troops and told The Intercept that they “got a bum rap” from reporters. He expressed a low regard for the press, then and now, and a belief that they are “part of the deep state.”

In 1972, having recently returned from four years’ reporting in Southeast Asia, Buckley gave a talk at the U.S. Naval War College in Newport, Rhode Island, during which a man in the back asked numerous well-informed questions. “He and others swarmed me when the event was over — and I asked him his name and where he had been,” Buckley told The Intercept.

“Grail Brookshire,” the man responded.

“You mean —” Buckley began, but before he could finish the sentence, the man interrupted. 

“That’s me, Grail Brookshire, the Butcher of Snuol,” he told Buckley. (When we spoke recently, Brookshire didn’t recall the particulars of this exchange from 51 years ago, but said it sounded like the type of “smart-ass remark” he would make.)

“You guys said my troops systematically looted the place,” Brookshire told Buckley. “My god, my men couldn’t do anything systematically.”

The post U.S. Blamed the Press for Military Looting in Cambodia appeared first on The Intercept.

Her first husband was killed after Pol Pot’s murderous Khmer Rouge plunged Cambodia into a nightmare campaign of overwork, hunger, and murder that killed around 2 million people from 1975 to 1979. Four other family members died too — some of starvation, others by execution.

“No one ever even had time to laugh. Life was so sad and hopeless,” she told The Intercept. It was enough suffering for a lifetime, but it couldn’t erase the memory of the night in August 1973 when her town became a charnel house. 

Ny was sleeping at home when the bombs started dropping on Neak Luong, 30 tons all at once. She had felt the ground tremble from nearby bombings in the past, but this strike by a massive B-52 Stratofortress aircraft hit the town squarely. “Not only did my house shake, but the earth shook,” she told The Intercept. “Those bombs were from the B-52s.” Many in the downtown market area where she worked during the day were killed or wounded. “Three of my relatives — an uncle and two nephews — were killed by the B-52 bombing,” she said.

The strike on Neak Luong may have killed more Cambodians than any bombing of the American war, but it was only a small part of a devastating yearslong air campaign in that country. As Elizabeth Becker, who covered the conflict as a correspondent for the Washington Post, notes in her book “When the War Was Over,” the United States dropped more than 257,000 tons of explosives on the Cambodian countryside in 1973, about half the total dropped on Japan during all of World War II.

“They caused the largest number of civilian casualties because they were bombing so massively with very poor maps and spotty intelligence.”

“The biggest mistakes were in 1973,” she told The Intercept. “They caused the largest number of civilian casualties because they were bombing so massively with very poor maps and spotty intelligence. During those months ‘precision bombing’ was an oxymoron.” Neak Luong, she concurred, was the worst American “mistake.”

State Department documents, declassified in 2005 but largely ignored, show that the death toll at Neak Luong may have been far worse than was publicly reported at the time, and that the real toll was purposefully withheld by the U.S. government.

In his 2003 book “Ending the Vietnam War,” Henry Kissinger wrote that “more than a hundred civilians were killed” in the town. But U.S. records of “solatium” payments — money given to survivors as an expression of regret — indicate that more than 270 Cambodians were killed and hundreds more were wounded in Neak Luong. State Department documents also show that the U.S. paid only about half the sum promised to survivors.

The Price of a Life

The death warrant for Neak Luong was signed when U.S. officials decided that American lives mattered more than Cambodian ones. Until 1967, U.S. forces in South Vietnam used ground beacons that emitted high frequency radio waves to direct airstrikes. But the U.S. stopped using the beacons after a radar navigator on a B-52 bomber failed to flip an offset switch, causing a bomb load to drop directly on a helicopter carrying a beacon instead of a nearby site designated for attack. The chopper was blown out of the sky, and the U.S. military switched to a more reliable radar system until the January 1973 ceasefire formally ended the U.S. war in Vietnam.

At that point, the more sophisticated radar equipment went home, and the less reliable ground beacons came into use in Cambodia, where the U.S. air war raged with growing intensity. 

In April 1973, according to a formerly classified U.S. military history, American officials expressed concern that “radar beacons were located on the American Embassy in Phnom Penh” and raised “the possibility that weapons could be released in the direct mode,” striking the U.S. mission by accident. Within days, that beacon was removed. But while Americans at the embassy were safe, Cambodians in places like Neak Luong, where a beacon had been placed on a pole in the center of town, remained at risk. “It should have been put a mile or so away in the boondocks,” a senior U.S. Air Force officer told the New York Times in 1973.

On August 7, 1973, a secret cable shot from the beacon-less U.S. Embassy in Phnom Penh to the secretaries of State and Defense and other top American officials in Washington. At approximately 4:35 a.m. in Cambodia, according to Deputy Chief of Mission Thomas Enders’s message, Neak Luong was “accidentally bombed by a yet undetermined [U.S. Air Force] aircraft.” 

Ny said that her cousin, who served with the U.S.-allied Cambodian army and spoke English, got on the radio shortly after the bombing and asked an American what had happened. He was told that the bombs were dropped in error, she said.

It later became clear that a navigator had again failed to flip the offset bombing switch.

“No Great Disaster”

Col. David Opfer, the U.S. Embassy’s air attaché, quickly flew to the town to survey the situation, he told The Intercept. “I remember that some of the injured people were very happy to see somebody arrive, and I sent some of the most seriously wounded people back to the hospital in Phnom Penh in my helicopter,” he said. (Opfer died in 2018.)

Opfer told the foreign press corps in Phnom Penh that the bombing was “no great disaster.” 

“The destruction was minimal,” he announced at a press briefing, even though Enders, in the secret cable, had already informed U.S. officials that damage was “considerable.”

In a November 2010 interview, Opfer reiterated that he didn’t consider the damage to Neak Luong significant, and that it was limited to a small area. “It was a mistake,” he explained. “It happens in war.”

Sydney Schanberg, who reported for the New York Times in Cambodia, recalled Opfer’s briefing. “He said the casualties weren’t severe,” Schanberg, who died in 2016, told The Intercept. “He said there were 50 dead and some injured.” Opfer admitted that he didn’t actually know the number. “Even then I wasn’t sure how many,” he told The Intercept.

Schanberg, who later won a Pulitzer Prize for his reporting from Cambodia, was skeptical of the pronouncement and set out to see for himself. He was thrown off a Cambodian military flight to Neak Luong, but Schanberg’s fixer Dith Pran got them to the town by boat, and they interviewed survivors until local officials detained the journalists for taking photographs of “military secrets.” The U.S. Embassy, meanwhile, tried to wrest control of the story by arranging for a group of five Western reporters to take a quick look around with little opportunity to speak to townspeople. 

Schanberg and Pran, who spent a day and night under house arrest, watched their press colleagues through the window of the building where they were confined. “They didn’t see enough to write a detailed story and they hadn’t talked to anybody,” said Schanberg, noting that the pool reporters were only on the ground for about 20 minutes.

Ny Sarim told The Intercept that soldiers from the U.S.-allied Cambodian military also kept residents from making their way downtown, but that even from a distance, the damage was unmistakable. When she finally got through the cordon, she saw massive craters and twisted metal. “It was a total wreck,” Schanberg told me. “Everything had been hit.”

Schanberg’s August 9, 1973, front-page Times story on Neak Luong emphasized Opfer’s minimization of the damage; a second article and an editorial soon after detailed U.S. efforts to thwart Schanberg from covering the story.

In a confidential cable back to Washington, U.S. Ambassador Emory Swank mentioned “the New York Times correspondent’s accusation that the air attaché office attempted to block journalists’ access to Neak Luong” and defended the officer. “Colonel Opfer has done well in trying circumstances,” he stated, while casting the foreign press corps as “demanding and hostile.” Opfer told The Intercept that the Cambodian military had detained Schanberg and Pran. “They always get things mixed up and don’t tell it as it really is,” he said of the press. 

Schanberg took a different view. Opfer, he said, “was absolutely unskilled with the press. I felt bad for the man, in a way, because he was telling us what he had been told to tell us. A lot of the senior officers felt that we didn’t give anybody a fair break — but the Cambodians weren’t getting much of a break, were they?” 

A Grand Bargain

Officially, 137 Cambodians were killed in the Neak Luong bombing and 268 were wounded, according to the U.S. Embassy in Phnom Penh. Months later, Enders, in a confidential, December 1973 cable that went to Kissinger and then-Secretary of Defense James R. Schlesinger, confided that the U.S. had actually paid out solatium for 273 dead, 385 seriously wounded, 48 who suffered “mutilation,” and 46 victims of slight injuries. All told, that figure — 752 people hurt or killed — was 86 percent higher than the official number.

Enders stated that the U.S. had not sought to verify the numbers, but that the tally had been certified by the Cambodian regime. The final number of wounded and dead, he noted, “is higher than the official count given by [the Cambodian government] to the press and therefore should not be released.”

In the December 1973 cable, Enders admitted that the U.S. had never established a policy for “the payment of medical expenses for persons injured by U.S. errors,” and that the bombing of Neak Luong was “the only such incident which has occurred in Cambodia.” But just a day after the Neak Luong bombing, a State Department cable referenced a “second accidental bombing” at Chum Roeung village that killed four to eight people and injured up to 33. The Pentagon blamed the “error” on a F-111 bomber’s “faulty bomb-release racks.” By then, the U.S. had dropped hundreds of thousands of tons of bombs throughout the countryside and killed, according to experts, as many as 150,000 Cambodians. 

Two weeks after the bombing of Neak Luong, Swank, the U.S. ambassador, publicly signed an agreement on compensation with the Cambodian government. “We desire to compensate, insofar as possible, the survivors of the tragedy,” he said in a brief speech, adding that the U.S. would pay $26,000 to rebuild the damaged hospital in Neak Luong and provide $71,000 in equipment. 

The next of kin of those killed, according to press reports following his speech, would receive about $400 each. Considering that in many cases, the primary breadwinner had been lost for life, the sum was low: the equivalent of about four years of earnings for a rural Cambodian at the time. The financial penalty meted out to the B-52 navigator whose failure to flip the offset switch killed and wounded hundreds in Neak Luong was low too. He was fined $700 for the error. By comparison, a one-plane sortie, like that which bombed Neak Luong, cost about $48,000 at the time. A B-52 bomber cost about $8 million.

In another confidential cable sent in December 1973, Thomas Enders made a final accounting of solatium payments to those who had lost a relative in Neak Luong. They had actually not received the $400 per dead civilian that they had been promised. In the end, the U.S. valued the dead of Neak Luong at just $218 apiece. 

The post Notorious 1973 Attack Killed Many More Than Previously Known appeared first on The Intercept.

Round-faced and just over 5 feet tall in plastic sandals, Meas Lorn lost an older brother to a helicopter gunship attack and an uncle and cousins to artillery fire. For decades, one question haunted her: “I still wonder why those aircraft always attacked in this area. Why did they drop bombs here?”

The U.S. carpet bombing of Cambodia between 1969 and 1973 has been well documented, but its architect, former national security adviser and Secretary of State Henry Kissinger, who will turn 100 on Saturday, bears responsibility for more violence than has been previously reported. An investigation by The Intercept provides evidence of attacks that have never before been publicized and that killed or wounded hundreds of Cambodian civilians during Kissinger’s tenure in the White House. When questioned about his culpability for these deaths, Kissinger responded with sarcasm and refused to provide answers.

An exclusive archive of formerly classified U.S. military documents — assembled from the files of a secret Pentagon task force that investigated war crimes during the 1970s, inspector generals’ inquiries buried amid thousands of pages of unrelated documents, and other materials discovered during hundreds of hours of research at the U.S. National Archives — offers previously unpublished, unreported, and underappreciated evidence of civilian deaths that were kept secret during the war and remain almost entirely unknown to the American people. The documents also provided a rudimentary road map for on-the-ground reporting in Southeast Asia that yielded evidence of scores of additional bombings and ground raids that have never been reported to the outside world.

Survivors from 13 Cambodian villages along the Vietnamese border told The Intercept about attacks that killed hundreds of their relatives and neighbors during Kissinger’s tenure in President Richard Nixon’s White House. The interviews with more than 75 Cambodian witnesses and survivors, published here for the first time, reveal in new detail the long-term trauma borne by survivors of the American war. These attacks were far more intimate and perhaps even more horrific than the violence already attributed to Kissinger’s policies, because the villages were not just bombed, but also strafed by helicopter gunships and burned and looted by U.S. and allied troops.

The incidents detailed in the files and the testimony of survivors include accounts of both deliberate attacks inside Cambodia and accidental or careless strikes by U.S. forces operating on the border with South Vietnam. These latter attacks were infrequently reported through military channels, covered only sparingly by the press at the time, and have mostly been lost to history. Together, they increase an already sizable number of Cambodian deaths for which Kissinger bears responsibility and raise questions among experts about whether long-dormant efforts to hold him accountable for war crimes might be renewed.

The Army files and interviews with Cambodian survivors, American military personnel, Kissinger confidants, and experts demonstrate that impunity extended from the White House to American soldiers in the field. The records show that U.S. troops implicated in killing and maiming civilians received no meaningful punishments.

Together, the interviews and documents demonstrate a consistent disregard for Cambodian lives: failing to detect or protect civilians; to conduct post-strike assessments; to investigate civilian harm allegations; to prevent such damage from recurring; and to punish or otherwise hold U.S. personnel accountable for injuries and deaths. These policies not only obscured the true toll of the conflict in Cambodia but also set the stage for the civilian carnage of the U.S. war on terror from Afghanistan to Iraq, Syria to Somalia, and beyond.

“You can trace a line from the bombing of Cambodia to the present,” said Greg Grandin, author of “Kissinger’s Shadow.” “The covert justifications for illegally bombing Cambodia became the framework for the justifications of drone strikes and forever war. It’s a perfect expression of American militarism’s unbroken circle.”

Kissinger bears significant responsibility for attacks in Cambodia that killed as many as 150,000 civilians, according to Ben Kiernan, former director of the Genocide Studies Program at Yale University and one of the foremost authorities on the U.S. air campaign in Cambodia. That’s up to six times the number of noncombatants thought to have died in U.S. airstrikes in Afghanistan, Iraq, Libya, Pakistan, Somalia, Syria, and Yemen during the first 20 years of the war on terror. Grandin estimated that, overall, Kissinger — who also helped to prolong the Vietnam War and facilitate genocides in Cambodia, East Timor, and Bangladesh; accelerated civil wars in southern Africa; and supported coups and death squads throughout Latin America — has the blood of at least 3 million people on his hands

All the while, as Kissinger dated starlets, won coveted awards, and rubbed shoulders with billionaires at black-tie White House dinners, Hamptons galas, and other invitation-only soirées, survivors of the U.S. war in Cambodia were left to grapple with loss, trauma, and unanswered questions. They did so largely alone and invisible to the wider world, including to Americans whose leaders had upended their lives.

Henry Kissinger dodged questions about the bombing of Cambodia for decades and has spent half his life lying about his role in the killings there.

Henry Kissinger dodged questions about the bombing of Cambodia for decades and has spent half his life lying about his role in the killings there. In 1973, during his Senate confirmation hearings to become secretary of state, Kissinger was asked if he approved of deliberately keeping attacks on Cambodia secret, to which he responded with a wall of words justifying the assaults. “I just wanted to make clear that it was not a bombing of Cambodia, but it was a bombing of North Vietnamese in Cambodia,” he insisted. The evidence from U.S. military records and eyewitness testimony directly contradicts that claim. So did Kissinger himself.

In his 2003 book, “Ending the Vietnam War,” Kissinger offered an estimate of 50,000 Cambodian civilian deaths from U.S. attacks during his involvement in the conflict — a number given to him by a Pentagon historian. But documents obtained by The Intercept show that number was conjured almost out of thin air. In reality, the U.S. bombardment of Cambodia ranks among the most intense air campaigns in history. More than 231,000 U.S. bombing sorties were flown over Cambodia from 1965 to 1973. Between 1969 and 1973, while Kissinger was national security adviser, U.S. aircraft dropped 500,000 or more tons of munitions. (During all of World War II, including the atomic bombings, the United States dropped around 160,000 tons of munitions on Japan.)

At a 2010 State Department conference on U.S. involvement in Southeast Asia from 1946 through the close of the Vietnam War, I asked Kissinger how he would amend his testimony before the Senate, given his own contention that tens of thousands of Cambodian civilians died from his escalation of the war.

“Why should I amend my testimony?” he replied. “I don’t quite understand the question, except that I didn’t tell the truth.”

“Anything That Flies on Anything That Moves”

One night in December 1970, Nixon called his national security adviser in a rage about Cambodia. “I want the helicopter ships. I want everything that can fly to go in and crack the hell out of them,” he barked at Kissinger, according to a transcript. “I want gunships in there. That means armed helicopters. … I want it done! Get them off their ass. … I want them to hit everything.”

Five minutes later, Kissinger was on the phone with Gen. Alexander Haig, his military aide, relaying the command for a relentless assault on Cambodia. “It’s an order, it’s to be done. Anything that flies on anything that moves. You got that?”

Two years earlier, Nixon had won the White House promising to end America’s war in Vietnam, but instead expanded the conflict into neighboring Cambodia. Fearing public backlash and believing that Congress would never approve an attack on a neutral country, Kissinger and Haig began planning — a month after Nixon took office — an operation that was kept secret from the American people, Congress, and even top Pentagon officials via a conspiracy of cover stories, coded messages, and a dual bookkeeping system that logged airstrikes in Cambodia as occurring in South Vietnam. Ray Sitton, a colonel serving the Joint Chiefs of Staff, would bring a list of targets to the White House for approval. “Strike here in this area,” Kissinger would tell him, and Sitton would backchannel the coordinates into the field, circumventing the military chain of command. Authentic documents associated with the strikes were burned, and phony target coordinates and other forged data were provided to the Pentagon and Congress.

Kissinger, who went on to serve as secretary of state in the Nixon and Gerald Ford administrations, was awarded the Nobel Peace Prize in 1973 and the Presidential Medal of Freedom — America’s highest civilian award — in 1977. In the decades that followed, he has continued to counsel U.S. presidents, most recently Donald Trump; served on numerous corporate and government advisory boards; and authored a small library of bestselling books on history and diplomacy.

Born Heinz Alfred Kissinger in Fürth, Germany, on May 27, 1923, he came to the United States in 1938, amid a flood of Jews fleeing Nazi oppression. He became a U.S. citizen in 1943 and served in the U.S. Army in Europe during World War II. After graduating summa cum laude from Harvard College in 1950, he continued on to an M.A. in 1952 and a Ph.D. in 1954. He subsequently joined the Harvard faculty, working in the Department of Government and at the Center for International Affairs until 1969. While teaching at Harvard, he served as a consultant for the administrations of John F. Kennedy and Lyndon B. Johnson before his senior roles in the Nixon and Ford administrations. A believer in Realpolitik, Kissinger heavily influenced U.S. foreign policy between 1969 and 1977.

Through a combination of relentless ambition, media savvy, and the ability to muddy the truth and slip free of scandal, Kissinger transformed himself from a college professor and government functionary into the most celebrated American diplomat of the 20th century and a bona fide celebrity. While dozens of his White House colleagues were engulfed in the swirling Watergate scandal, which cost Nixon his job in 1974, Kissinger emerged unscathed, all the while providing fodder for the tabloids and spouting lines like “Power is the ultimate aphrodisiac.”

Kissinger was the chief architect of U.S. war policy in Southeast Asia, achieving almost co-president status in such matters. Kissinger and Nixon were also uniquely responsible for attacks that killed, wounded, or displaced hundreds of thousands of Cambodians and laid the groundwork for the Khmer Rouge genocide.

Pol Pot and the Khmer Rouge leadership cannot be exonerated for committing genocide on the Cambodian people, said Kiernan, the Yale scholar, but neither can Nixon nor Kissinger escape responsibility for their role in the slaughter that precipitated it. The duo so destabilized the tiny country that Pol Pot’s nascent revolutionary movement took over Cambodia in 1975 and unleashed horrors, from massacres to mass starvation, that would kill around 2 million people.

Kaing Guek Eav (known as “Duch”) who ran the Khmer Rouge’s Tuol Sleng prison, where thousands of Cambodians were tortured and murdered in the late 1970s, made the same observation. “Mister Richard Nixon and Kissinger,” he told a United Nations-backed tribunal, “allowed the Khmer Rouge to grasp golden opportunities.” After he was overthrown in a military coup and his country was plunged into genocide, Cambodia’s deposed monarch, Prince Norodom Sihanouk, leveled similar blame. “There are only two men responsible for the tragedy in Cambodia,” he said in the 1970s. “Mr. Nixon and Dr. Kissinger.”

In his 2001 book-length indictment, “The Trial of Henry Kissinger,” Christopher Hitchens called for Kissinger’s prosecution “for war crimes, for crimes against humanity, and for offenses against common or customary or international law, including conspiracy to commit murder, kidnap, and torture” from Argentina, Bangladesh, and Chile to East Timor, Laos, and Uruguay. But Hitchens reserved special opprobrium for Kissinger’s role in Cambodia. “The bombing campaign,” he wrote, “began as it was to go on — with full knowledge of its effect on civilians, and with flagrant deceit by Mr. Kissinger in this precise respect.”

Others went beyond theoretical indictments. As a teenager, Australian-born human rights activist Peter Tatchell felt greatly affected by the U.S. war — and war crimes — in Indochina. Decades later, believing that there was a strong case to be made, he took action. “It surprised me that no one had tried to prosecute Kissinger under international law, so I decided to have a go,” he told The Intercept by email.

“It surprised me that no one had tried to prosecute Kissinger under international law, so I decided to have a go.”

In 2002, with Slobodan Miloševic, the former president of the Federal Republic of Yugoslavia, on trial for war crimes, Tatchell applied for an arrest warrant at Bow Street Magistrates’ Court in London under the Geneva Conventions Act of 1957, an act of Parliament that incorporated some components of the laws of war as defined by the 1949 Geneva Conventions into British law. He alleged that while Kissinger “was National Security Advisor to the U.S. President 1969-75 and U.S. Secretary of State 1973-77 he commissioned, aided and abetted and procured war crimes in Vietnam, Laos and Cambodia.” Judge Nicholas Evans denied the application, stating that he was not “presently” able to draft a “suitably precise charge” based on the evidence Tatchell submitted.

When the arrest warrant was denied, Tatchell tried to engage international humanitarian organizations to help or take over the case, he told The Intercept, but they “did not see it as a priority.” He tried unsuccessfully to contact potential American witnesses and engage U.S. human rights groups.

But Tatchell maintains that Kissinger should still have his day in court. “I believe that age should never be a barrier to justice. Those who commit or authorise war crimes should be held to account, regardless of their age,” he wrote, “providing they have the mental capacity for a fair trial, which I understand is the case with Kissinger.”

Five Decades of Impunity

Kissinger and his acolytes frequently cast blame for the American war in Cambodia on the North Vietnamese troops and South Vietnamese guerrillas who used the country as a base and logistics hub, while giving short shrift to U.S. involvement there. “What destabilized Cambodia was North Vietnam’s occupation of chunks of Cambodian territory from 1965 onwards,” wrote former Kissinger aide Peter Rodman. But three years earlier — long before most Americans knew their country was at war in Southeast Asia — U.S. “bombs hit a Cambodian village by accident … killing several civilians,” according to an Air Force history. And the “accidents” never stopped. Between 1962 and 1969, the Cambodian government tallied 1,864 border violations; 6,149 violations of its air space by U.S. and South Vietnamese forces; and nearly 1,000 civilian casualties.

To Nixon and Kissinger, Cambodia was a sideshow: a tiny war waged in the shadow of the larger conflict in Vietnam and entirely subsumed to U.S. objectives there. To Cambodians on the front lines of the conflict — farming folk living hardscrabble lives — the war was a shock and a horror. At first, people were awed by the aircraft that began flying above their thatched-roof homes. They called Huey Cobra attack helicopters “lobster legs” for their skids, which resembled crustacean limbs, while small bubble-like Loaches became “coconut shells” in local parlance. But Cambodians quickly learned to fear the aircraft’s machine guns and rockets, the bombs of F-4 Phantoms, and the ground-shaking strikes of B-52s. Decades later, survivors still had little understanding of why they were attacked and why so many loved ones were maimed or killed. They had no idea that their suffering was due in large part to a man named Henry Kissinger and his failed schemes to achieve his boss’s promised “honorable end to the war in Vietnam” by expanding, escalating, and prolonging that conflict.

In 2010, I traveled to Cambodia to investigate decades-old U.S. war crimes. I searched the borderlands, looking for villages mentioned in U.S. military documents, carrying binders filled with photos of Cobras, Loaches, and other aircraft, asking villagers to point out the military hardware that killed their loved ones and neighbors. My interviewees were uniformly shocked that an American knew about attacks on their village and had traveled across the globe to speak with them.

To Nixon and Kissinger, Cambodia was a sideshow. To Cambodians on the front lines of the conflict, the war was a shock and a horror.

For decades, the U.S. government has shown little interest in examining allegations of civilian harm caused by its military operations around the world. A 2020 study of post-9/11 civilian casualty incidents found that most have gone completely uninvestigated, and in those cases that have come under official scrutiny, U.S. investigators regularly interview American military witnesses but almost totally ignore civilians — victims, survivors, family members, and bystanders — “severely compromising the effectiveness of investigations,” according to researchers from the Center for Civilians in Conflict and the Columbia Law School Human Rights Institute. The U.S. military rarely conducted investigations of civilian harm allegations in Cambodia and almost never interviewed Cambodian victims. In all 13 Cambodian villages I visited in 2010, I was the first person to ever interview victims of wartime attacks initiated 9,000 miles away in Washington, D.C.

Over the last two decades, investigative reporters and human rights groups have documented systemic killing of civilians, underreporting of noncombatant casualties, failures of accountability, and outright impunity extending from the drone pilots who slay innocent people to the architects of America’s 21st-century wars in Libya, Somalia, Syria, Yemen and elsewhere. A 2021 investigation by New York Times reporter Azmat Khan — which revealed that the U.S. air war in Iraq and Syria was marked by flawed intelligence and inaccurate targeting, resulting in the deaths of thousands of innocent people — finally forced the Defense Department to unveil a comprehensive plan for preventing, mitigating, and responding to civilian casualties. The 36-page Civilian Harm Mitigation and Response Action Plan provides a blueprint for improving how the Pentagon addresses noncombatant deaths but lacks a concrete mechanism for addressing past civilian harm.

The Defense Department has been clear that it isn’t interested in looking back. “At this point we don’t have an intent to re-litigate cases,” Defense Secretary Lloyd Austin told Rep. Sara Jacobs, D-Calif., when she asked last year whether the Pentagon was planning to revisit past civilian harm allegations from the forever wars. The possibility that the Defense Department will investigate civilian harm in Cambodia 50 years later is nil.

I share some responsibility for the delay in publishing these accounts. For 13 years — while I was reporting on drone strike victims in Somalia, ethnic cleansing in the Democratic Republic of Congo, and civil wars from Libya to South Sudan — survivors’ accounts from Cambodian villages like An Lung Kreas, Bos Phlung, Bos Mon (upper), Doun Rath, Doun Rath 2, Mroan, Por, Sati, Ta Sous, Tropeang Phlong, Ta Hang, and Udom were lodged in my notebooks. Other projects and imperatives, coupled with the vagaries of the news industry that doesn’t always view past atrocities as “news,” kept them there.

When I conducted my interviews, in 2010, the life expectancy in Cambodia was about 66 years. Many of the people I spoke with — their ages in this article pegged to the date we spoke — are likely dead. Few in these rural villages had cellphones 13 years ago, so I have no way to reach them. But their accounts remain vibrant and the horrors they recounted have not diminished. Nor has their pain necessarily passed on with them from this world. We know from Holocaust survivors, for example, that trauma can have intergenerational effects; it can be passed on, whether genetically or otherwise. Even at this late date, the pain of America’s war in Cambodia lives on — along with the architect of that country’s agony.

Memories of Atrocity

Crossing a bridge over the Mekong River, I sped into the Cambodian countryside, along highways where SUVs passed tiny carts pulled by tiny ponies, motorbikes loaded with sheaves of bamboo or brightly colored textiles or baskets of squealing pigs, and ancient flatbed trucks piled high with rough-hewn, ochre bricks. I rolled through market towns of open-air butcher shops and wooden stalls selling cases of motor oil or motorcycle helmets or child-sized bags of rice or cases of Angkor Beer. I raced past thick, unruly forests and rubber plantations and rice fields where you could spot lines of water buffalo loping, single file, along the paddy dikes. Finally, I turned off the pavement onto a path of rutted, red dirt, looking for villages unknown even to the local police. At the end of one of these dusty, pitted trails, I found a hamlet straddling the border with Vietnam.

The air in Doun Rath was dry and musty during the day and punctuated, in the late afternoon, by the comforting smell of cooking fires that wafted up to wooden homes built on stilts to maximize air circulation on sweltering days like these.

I came looking for members of a ravaged generation who had survived both the American war and the Khmer Rouge genocide that followed. One of them, Phok Horm, spry and 84 years old at the time of our meeting, with close-cropped salt and pepper hair, told me: “Bombing was very common in this area. Sometimes, it happened every day. Sometimes there were dive bombers. Sometimes, the aircraft with the legs of a lobster would fly over and shoot at everything.”

Vietnamese guerrillas operated in the nearby forest, Phok and fellow village elders recalled. They came to Doun Rath to buy supplies from residents already living hard lives, growing rice and selling it across the border in Vietnam, before the war flooded the hamlet with refugees from other bomb-ravaged Cambodian villages. But the guerrillas generally weren’t present during the attacks. “Many people here were shot,” said Chneang Sous, who was in his 20s during the conflict. “Most of them were Cambodian.”

When the shooting started, villagers would scatter, running for the uncertain protection of paddy dikes and, as the war dragged on, subterranean bunkers that families dug beside their homes. Min Keun, a teenager in 1969, remembered the regular intrusion of “lobster legs” in the skies over the village. “People would panic. They would run. Sometimes they made it. Sometimes they would be killed,” she recalled. “There was so much suffering.” Min and others remembered helicopters firing on fleeing villagers. Water buffalo and cattle were repeatedly machine-gunned. At night, the helicopters’ bright search beams lit up the darkness as they hunted for enemy forces. Bombs might fall at any time.

Around 1969, Phok’s husband was caught in the open during a “bombardment” and hit in the neck with shrapnel. He hung on for seven days before succumbing to his wounds. Chneang recalled an instance when an American Huey gunship popped up from behind a tree line, forcing villagers to bolt for safety. The helicopter raked the area with machine gunfire, killing his aunt and uncle. Nouv Mom told me that his younger sister was gravely wounded in a 1972 bombing. Vietnamese guerrillas arrived after the attack and took her away for medical treatment, but his family never saw her again. All told, survivors believed that more than half of all the villagers living in Doun Rath during the late 1960s and early 1970s were either killed or wounded by American attacks.

In nearby Doun Rath 2, former village chief Kang Vorn said residents led a simple life before the war, growing rice, beans, and sesame seeds. They began to see Vietnamese guerrillas around 1965, but the bombing didn’t begin until about 1969. Vet Shea, a one-eyed woman, recalled that the attacks intensified as time went on. “Sometimes we were bombed every day. Once, it was three or four times in one day,” she said. She herself survived a helicopter attack targeting farmers working in the nearby fields. “I ran flat out when I saw it,” Vet told me. “One person was wounded. A few others died.”

Thirteen elders of Doun Rath 2 did their best to recall the names of the dead. “Nul, Pik, Num, Seung,” said Sok Yun, an 85-year-old who relied on a weathered walking stick, as she ticked off the names of four villagers killed when their bomb shelter collapsed under a direct hit from an airstrike. Vet said her aunt was slain in another attack. Tep Sarum was just a teenager when a bomb hit his aunt’s house, killing her. Mom Huy, 80 years old at the time of our interview, said deaths and injuries from the bombs were common, while Kang, the former chief, estimated that at least 30 villagers were wounded by airstrikes but survived.

Just how many people in and around Doun Rath and Doun Rath 2 were killed by Nixon and Kissinger’s war was already lost to history when I visited. The U.S. documentary record is quite sparse, but it does exist. On the night of August 9 and the morning of August 10, 1969, according to an Army inspector general’s report, a U.S. “Nighthawk” helicopter team — consisting of one Huey, equipped with a spotlight and high-powered M-60 machine guns, and a Cobra gunship outfitted with a powerful Gatling gun, rockets, and a grenade launcher — was operating in a so-called free fire zone near the South Vietnamese border with Cambodia.

The previously unreported investigation reveals that while only some members of the helicopter crews mentioned sporadic ground fire that night, they all agreed that lights were seen in “living structures.” Helicopter crew members claimed that radar operators told them they were over South Vietnam, but the radar operators said otherwise. One of them, Rogden Palmer, speaking to investigators about the Huey commander, said:

[H]e told his Tiger bird (the cobra accompanying him) that he thought he saw a light. At this time I advised him that he was close to the Cambodian border, and he rogered my transmission. Night Hawk and Tiger started circling … about the same time I advised him that he appeared to be over the border. I don’t remember if he rogered my transmission, but I beleive [sic] he did. At one time I told him he was over the border.

Apparently undaunted, the Huey focused its searchlight on the houses and the Cobra gunship commenced a firing run, blasting three of what the Pentagon documents referred to as “hooches” — shorthand for civilian dwellings — with machine gunfire and rockets filled with “flechettes,” tiny nails designed to tear through human flesh.

The U.S. investigation determined that the helicopters “did engage a target in the vicinity of the Cambodian border which could have been the village of Doun Rath.” The survivors in Doun Rath and Doun Rath 2 didn’t recall this particular incident, emphasizing that attacks were so common for so long that they blended together. The report concluded that the “aircraft commander exercised poor judgement [sic] in engaging a target under these circumstances.” The inspector general, however, recommended that “no disciplinary action be taken,” and until I arrived decades later no one, apparently, had tried to investigate what actually happened in Doun Rath.

Fifty years on, most U.S. attacks in Cambodia are unknown to the wider world and may never be known. Even those confirmed by the U.S. military were ignored and forgotten: cast into history’s dustbin without additional reviews or follow-up investigations.

On January 6, 1970, for example, five helicopters breached Cambodian airspace and fired on the village of Prastah, killing two civilians and severely wounding an 11-year-old girl, according to an Army inspector general’s summary report. That perfunctory review found that helicopter gunships from the 25th Infantry Division had fired on enemy forces, who allegedly withdrew into Cambodia. The inquiry determined that the “gunships continued to engage and rounds did impact in Cambodia.” As to the question of civilian casualties and property damage resulting from the attack, the report stated only that “it was possible that civilian personnel … could have been struck by fire from the gunships and some crops could have been destroyed.” There is no indication that anything was done to compensate the survivors.

In the early evening of May 3, 1970, a helicopter circled the Cambodian village of Sre Kandal several times, scaring villagers and forcing them to flee, according to a formerly classified Army report. The file states that witnesses said a “helicopter of unknown type circled their village several times. They became frightened and started to run, at which time the helicopter allegedly fired.” According to Cambodians who the U.S. military encountered just after the attacks, three people suffered burns when a home was set ablaze in the attack and one person was wounded by shrapnel. One of the burn victims, his name likely engraved in the hearts of his Cambodian relatives but otherwise lost to history, later died.

“Everything Was Completely Destroyed”

Less than a month after Kissinger and Haig began planning the secret bombing of Cambodia, the U.S. launched Operation MENU, a callously titled collection of B-52 raids codenamed BREAKFAST, LUNCH, SNACK, DINNER, DESSERT, and SUPPER that were carried out from March 18, 1969, to May 26, 1970. The attacks were kept secret through multiple layers of deception; Kissinger approved each one of the 3,875 sorties.

Survivors say that living through a B-52 bombing is unimaginably terrifying, bordering on the apocalyptic. Even within the confines of a deep, well-built bomb shelter, the concussive force from a nearby strike might burst eardrums. For those more exposed, the earth-shaking strikes could be extraordinarily lethal.

One morning, at the end of a busted dirt and gravel road near the Vietnamese border, I found Vuth Than, 78 years old at the time, with a shorn head of bristly gray hair and a mouth stained red with juice from betel nut, a natural stimulant popular in Southeast Asia.

Both Vuth and her sister, 72-year-old Vuth Thang, broke down as soon as I explained the purpose of my reporting. They were away from their home in the village of Por when a B-52 strike wiped out 17 members of their family. “I lost my mother, father, sisters, brothers, everyone,” Vuth Than told me, tears streaming down her cheeks. “It was so terrible. Everything was completely destroyed.”

Exposed by North Vietnam’s Hanoi Radio and confirmed by the New York Times in May 1969, the secret bombing of Cambodia was officially denied and unknown to the public and the relevant congressional committees at the time. Congress and the American people were kept so deep in the dark that on April 30, 1970, as he announced the first publicly avowed U.S. ground invasion of Cambodia to strike at suspected enemy base areas, Nixon could baldly lie, telling the country: “For five years neither the United States nor South Vietnam has moved against these enemy sanctuaries because we did not wish to violate the territory of a neutral nation.”

It was only in 1973, during the Watergate scandal, that the secret bombing allegations came to the fore, prompting the first effort to impeach Nixon on the grounds that he had waged a secret war in a neutral nation in violation of the U.S. Constitution. Eventually, that article of impeachment was voted down in the name of political expediency. In the face of the other charges, however, Nixon resigned from office.

“That was in essentially unpopulated areas and I don’t believe it had any significant casualties,” Kissinger told me at the 2010 State Department conference, titled “The American Experience in Southeast Asia, 1946-1975,” when I questioned him about the bombing. It was effectively the same reply he offered British journalist David Frost during a 1979 NBC News interview in which Frost charged that Kissinger’s Cambodia policy set in motion a series of events that would “destroy the country.” Kissinger stormed out of the studio after the taping and Frost quit the project, alleging interference by NBC, which was then also employing Kissinger as a consultant and commentator. NBC later released a transcript of the interview but allowed Kissinger to amend his comments through an attached letter to NBC News President William Small.

“We did not start to destroy a country from anybody’s point of view when we were bombing seven isolated North Vietnamese base areas within some five miles of the Vietnamese border, from which attacks were being launched into South Vietnam,” Kissinger told Frost. In typical fashion of seizing on discrepancies and muddying debates, he accurately denied Frost’s contention that Base Area 704 was bombed — a mistake stemming from a typographic error in a Pentagon document — during the secret B-52 attacks, noting that “base area 740” was actually attacked. He said recommendations of targets were accompanied by a statement “that civilian casualties were expected to be minimal.”

There were in fact 1,136 civilians living in Base Area 740, according to the Pentagon; a formerly top secret Air Force report, declassified decades after the Frost interview, noted that only 250 enemy forces were present there. An Army document I discovered in the National Archives also notes that the military was aware that civilians “were wounded/killed by B-52 strikes in Base area 740” between May 16 and 20, 1970, around the time of the SUPPER attacks. According to the confidential case file, those slain and injured were “Montagnards,” members of an ethnic minority whose “hamlets were not accurately reflected on commonly used maps.”

“I Was the Only Survivor of My Whole Family”

In 2010, the village was officially known as Ta Sous, but to its inhabitants it was still known by its name during the American war: Tralok Bek. “Every house had a bunker during the war. But during the day, if you were out tending to the cows, your life might depend on a termite hill and whether you could hide behind it,” Meas Lorn explained. “Planes dropped bombs. Helicopters strafed. Many people died,” said Meak Satom, a gray-haired man with a gold tooth. A B-52 strike in 1969 killed about 10 people, including a young friend, he recalled.

While I interviewed locals about the many attacks that occurred there during the war, Sdeung Sokheung said little. But when I brought out a binder filled with photographs of many different types of American aircraft, she zeroed in on an F-4 Phantom. Pointing at it, she said that as a girl, she had witnessed the bombing of Ta Hang village, about eight kilometers away, by that type of plane.

After finishing our interviews in Tralok Bek, I traveled winding dirt roads, past stunted bushes and the occasional thin, tan-colored cow, until we reached an area of dry, rock-hard rice paddies and towering palms. A few minutes later, in a rustic wooden home, I found 64-year-old Chan Yath, a woman with a substantial head of dark hair and teeth stained from chewing betel nut. I asked if there had been a bomb strike in the area during the war. She said yes; a family had been nearly wiped out. The lone survivor, she explained, was her cousin, An Seun. A younger woman was dispatched to find An and, 20 minutes or so later, we saw her — a tiny, aging mother of 10 — ambling along a narrow paddy dike path leading to the rear of Chan’s home. “During the time of a full moon,” said An, referring to a Buddhist holy day, she was off visiting her grandfather’s house. “At around 10 a.m., an airplane dropped a bomb on my home. My parents and four siblings were all killed,” she told me with wet eyes and a catch in her throat. “I was the only survivor of my whole family.”

During these same years, the U.S. was also conducting clandestine, cross-border ground operations inside Cambodia. In the two years before Nixon and Kissinger took over the war, U.S. commandos conducted 99 and 287 missions, respectively. In 1969, the number jumped to 454. Between January 1970 and April 1972, when the program was finally shut down, commandos carried out at least 1,045 covert missions inside Cambodia. There may, however, have been others, ostensibly launched by Kissinger, that were never disclosed.

From January to May 1973, between stints as deputy assistant to the president for national security and White House chief of staff, Al Haig served as the vice chief of staff of the Army. Retired Army Brig. Gen. John Johns told me that during this time, he was in Haig’s office at the Pentagon when an important call came in. “I was briefing him on something, and the red phone rang, which I knew was the White House,” Johns recalled. “I got up to leave. He motioned me to sit down. I sat there and heard him tell them how to cover up our intrusions into Cambodia.”

Johns — who had never before revealed the story to a reporter — was relatively sure that Haig was referring to past covert actions, yet did not know if the operations were made public or who was on the other end of the phone line. But Kissinger was responsible for many of the cross-border missions, according to Roger Morris, a Kissinger aide who served on the senior staff of the National Security Council. “A lot of the time, he was authorizing the ongoing covert excursions into Cambodia,” he told me. “We were running a lot of covert ops there.”

“How Could the People Escape?”

After two days of driving local roads asking for directions, I turned off a highway onto a red dirt track that cut through lush farmland and finally spilled into a border village of simple wooden homes amid a sea of variegated greenery. During the war, these houses had looked much the same, said village chief Sheang Heng, a wiry man with calloused hands and bare feet wearing a loose dress shirt that had once been white. The only real change was that corrugated metal had replaced most of the old thatch and tile roofs.

In 1970, when Sheang was 17 years old, this village was on the front line of America’s Cambodian incursion. Halfway around the world, at Kent State University, members of the Ohio National Guard killed four students during a May 4, 1970, protest against this new stage in the war. While that massacre received worldwide attention, a larger one in Sheang’s village three days earlier went unnoticed.

On May 1, 1970, helicopters circled the Cambodian village of “Moroan” (an American’s phonetic spelling of the name) before opening fire, killing 12 villagers and wounding five, according to a formerly classified U.S. document that, until now, has never been publicly disclosed. After the assault, another helicopter landed and carried off the injured; the survivors fled their village to another named “Kantuot,” located in a neighboring district.

There is no village in Cambodia named “Moroan,” but the hamlet near the Vietnamese border where I located Sheang was, he said, called Mroan. As in the other Cambodian border villages I visited, focusing on a lone attack cited in U.S. military documents left residents baffled, given that they had endured many airstrikes over many years. Still, when asked about the date, Sheang gestured toward what is now the far edge of the village. “Many died in that area at that time,” he recalled. “Afterward, the people left this village for another named Kantuot.”

Sheang and Lim South, who was 14 years old in 1970, said that many types of aircraft battered Mroan, from helicopter gunships to massive B-52 bombers. As Sheang — who lost his mother, father, a grandfather, a nephew, and a niece, among other relatives, to airstrikes — told me about the relentless attacks, his eyes reddened and went vacant. “The explosions tossed the earth into the air. The ‘fire rocket’ burned the houses. Who could survive? People ran, but they were cut down. They were killed immediately. They just died,” he said, trailing off as he moved to a far corner of the room and slumped to his knees.

Each survivor told a similar story. Lim’s sister and three brothers were killed in bombing raids. Thlen Hun, who was in her 20s in the early 1970s, said her older brother was killed in an airstrike. South Chreung — shirtless in dress pants with a vibrant orange krama, the traditional Cambodian scarf, around his neck — told me that he had lost a younger brother in a different attack.

Villagers said that when they first saw American aircraft overhead, they were awestruck. Having never seen anything like the giant machines, people came out to stare at them. Soon, however, residents of Mroan learned to fear them. Cooking rice became dangerous as Americans flying above would see the smoke and launch attacks. Helicopters, survivors said, routinely strafed both the nearby fields and the village itself, then comprised of about 100 homes. “This one was the most vicious,” said Sheang, pointing at a photograph of a Cobra gunship among pictures of other aircraft I provided. When the “coconut shell” helicopter, a U.S. Army OH-6 or “Loach,” marked an area with smoke, villagers recalled, the Cobra would attack, firing rockets that set homes ablaze. “During the American War, almost all houses in the village were burned,” said Sheang.

Sheang and Thlen said that about half the families in Mroan — some 250 people — were wiped out by U.S. attacks. They led me to the edge of the village, a riot of foliage in every shade of green that sloped into a depression, one of several remaining nearby bomb craters. “About 20 people were killed here,” said Sheang gesturing toward the crater. “It used to be deeper, but the land has filled it in.” Thlen — slim, with graying hair, her brown eyes narrowed in a perpetual squint — shook her head and walked to the crater’s edge. “It was disastrous. Just look at the size,” she said, adding that this hole was just one of many that once dotted the landscape. “How could the people escape? Where could they escape to?”

The Stolen Suzuki and the Girl Left to Die

The results of Nixon’s December 1970 telephone tirade and Kissinger’s order to set “anything that flies on anything that moves” were immediately palpable. During that month, sorties by U.S. helicopters and bombers tripled in number. Soon after, in May 1971, U.S. helicopter gunships shot up a Cambodian village, wounding a young girl who couldn’t be taken for treatment because a U.S. officer overloaded his helicopter with a looted motorcycle that was later gifted to a superior, according to an Army investigation and exclusive follow-up reporting by The Intercept. The Cambodian girl almost certainly died from her wounds, along with seven other civilians, according to previously unreported documents produced by a Pentagon war crimes task force in 1972.

How many similar killings occurred will never be known. Cover-ups were common, investigations were rarely undertaken, and crimes generally evaporated with the fog of war. But there were ample opportunities for mayhem and massacre. In the two years before Nixon took office, there were officially 426 helicopter gunship sorties in Cambodia, according to a Defense Department report. Between January 1970 and April 1972, there were at least 2,116. In January 1971, Congress enacted the Cooper-Church amendment, which prohibited U.S. troops, including advisers, from operating on the ground in Cambodia, but America’s war continued unabated. Evidence soon emerged that the U.S. was violating Cooper-Church, but the White House lied about it to Congress and the public. “As long as we didn’t set our foot on that ground, we basically weren’t there, even though we did missions there every day,” Gary Grawey, an Army helicopter crew chief who flew daily missions in Cambodia during the spring of 1971, including the May mission that killed the young girl, told me.

“They attacked that village,” Grawey said, noting that both the South Vietnamese and American troops shot up the hamlet. “They were shootin’ and they didn’t even know who they were shootin’ at,” he recalled, adding that the victims were “women and children,” just “regular villagers.”

It started at half past noon on May 18, 1971, according to an Army investigation file and previously unreported summary documents produced by a Pentagon task force in 1972, when three U.S. helicopters — a “hunter-killer team” conducting a reconnaissance mission — skimmed the treetops inside Cambodia. The team came upon a village where they spotted motorcycles and bicycles that, according to crew members’ testimony, were suspected of being part of an enemy supply convoy. Hovering above, the Americans tried to motion for people on the ground to open packs on the vehicles. When the villagers instead began moving away, the highest-flying helicopter fired two incendiary rockets, a numbingly common tactic to draw out enemy personnel who might be hiding nearby. While the crew of one of the helicopters reported taking isolated ground fire, no Americans were killed or wounded, nor were any enemy personnel or weapons ever found.

According to a confidential report discovered in the U.S. National Archives and published here for the first time, the high-flying helicopter then “rocketed and strafed the buildings and surrounding area with approximately 15 to 18 rounds of high explosive rockets and machine gun fire.”

Capt. Clifford Knight, pilot of the “low bird,” said that his gunner shot an apparently unarmed man, clad in civilian clothes, who was “trying to run away.” The gunner, John Nicholes, admitted it, noting that the killing took place after the initial rocket barrage.

Capt. David Schweitzer, the “high bird” commander, testified to rocketing and strafing the area and calling for the insertion of South Vietnamese, or Army of the Republic of Vietnam, troops to search for suspected enemy forces. According to a summary of the testimony of Grawey, the helicopter crew chief who ferried an elite ARVN Ranger team and an American captain, Arnold Brooks, to the village:

CPT Brooks and the ARVN Rangers acted “hog wild” when they deplaned, shooting up the area although they received no return fire. … [H]e did observe 5 to 10 Cambodian personnel that appeared to be wounded, but that he did not know if they were wounded from air or ground fire.

Decades later, Grawey reconfirmed details of the incident in an interview, noting that, as the ARVN deployed from the helicopter, he told Brooks that “he was not to get off my bird.” But Brooks, whom Grawey described as “gung ho,” pulled rank and ignored him. Brooks — who he said was carrying a non-regulation “machinegun” — started shooting indiscriminately.

Davin McLaughlin, the commander of a replacement “low bird” that was called in when the first helicopter ran short on fuel, similarly noted that the South Vietnamese met no resistance and, according to the documents, “grabbed what they could.” A summary of the testimony of his gunner, Len Shattuck, in the investigation file adds:

The ARVN Rangers appeared melodramatic when they were inserted and in his opinion fired excessively in the area. … He stated that there were approximately 15 wounded personnel in the area and that he observed 2 males 50-60 years of age, and one female 8-10 years of age, that appeared to be dead.

In a 2010 interview, Shattuck told me that he didn’t fire a shot that day and stressed that he only saw one section of the village. What he saw there, however, stayed with him. “We came into a smoking village,” he said. “I witnessed dead bodies. I witnessed some wounded people that appeared to be civilians. … We didn’t evac[uate] anybody.” Shattuck remembered the little girl as even younger than indicated by his testimony, just 3 to 5 years old, and that she was covered with blood. “She was pretty badly shot up,” he recalled.

As Cambodians lay wounded and dying, the ARVN Rangers looted the village, grabbing ducks, chickens, wallets, clothing, cigarettes, tobacco, civilian radios, and other nonmilitary items, according to numerous American witnesses. “They were stealing everything they could get their hands on,” Capt. Thomas Agness, the pilot of the helicopter that carried Brooks and some of the ARVN, told me. Brooks, however, had the biggest score of all. With the help of South Vietnamese troops, he hauled a blue Suzuki motorcycle onto a helicopter, according to Army documents. Brooks acknowledged his service in Cambodia during a telephone conversation and asked for a formal interview request by email. He did not respond to that request or subsequent ones.

Agness, according to an Army investigator’s summary, said that he received “a radio request to evacuate a wounded girl [but] denied on instructions of CPT Brooks since he was fully loaded with the ARVN Ranger team, a motorcycle and he was low on fuel.” The stolen Suzuki was presented as a gift to his commanding officer, Lt. Col. Carl Putnam, who was later seen tooling around base on it, according to the investigation documents. The Army concluded that the wounded girl, left behind for the sake of the Suzuki, died.

Furious, Gary Grawey resolved to report Arnold Brooks. “I was really pissed at the time,” he told me. “I said I would report him, which I did.” A previously unreported final status report on the “Brooks Incident,” contained in the files of the Pentagon war crimes task force, concluded that allegations of excessive bombardment, pillage, and a violation of the rules of engagement had been “substantiated.” While no enemy weapons or war materiel were found in the village, according to the report, civilian casualties “were estimated at eight dead, including two children, 15 wounded and three or four structures destroyed. There is no evidence that the wounded were provided medical treatment by either U.S. or ARVN forces.”

Putnam and a direct subordinate were issued letters of reprimand — a low-grade punishment — for their “actions and/or inactions” in the case. (Putnam died in 1976.) While court martial charges were filed against Brooks, his commanding general dismissed them in 1972, instead giving him a letter of reprimand. Records indicate that no other troops were charged, let alone punished, in connection with the massacre, the looting, or the failure to render aid to wounded Cambodian civilians.

Backing the Genocidaires

When Henry Kissinger hatched his plans for the secret bombing of Cambodia, Pol Pot’s Khmer Rouge numbered around 5,000. But as a 1973 CIA cable explained, the Khmer Rouge’s recruitment efforts relied heavily on the U.S. bombing:

They are using damage caused by B-52 strikes as the main theme of their propaganda. … The [Khmer Rouge] cadre tell the people … the only way to stop “the massive destruction of the country” is to remove [U.S.-backed junta leader] Lon Nol and return Prince Sihanouk to power. The proselyting cadres tell the people that the quickest way to accomplish this is to strengthen [Khmer Rouge] forces so they will be able to defeat Lon Nol and stop the bombing.

The U.S. dropped more than 257,000 tons of munitions on Cambodia in 1973, almost the same amount as during the previous four years combined. A report by the U.S. Agency for International Development found that “the intense American bombing in 1973 increased the cumulative number of refugees to nearly half of the country’s population.”

Those attacks galvanized Pol Pot’s forces, allowing the Khmer Rouge to grow into the 200,000-person force that took over the country and killed about 20 percent of the population. Once the regime was in power, the political winds had shifted and Kissinger, behind closed doors, told Thailand’s foreign minister: “You should also tell the Cambodians that we will be friends with them. They are murderous thugs, but we won’t let that stand in our way. We are prepared to improve relations with them.” He then clarified his statement: The Thai official should not repeat the “murderous thugs” line to the Khmer Rouge, only that the U.S. wanted a warmer relationship.

In late 1978, Vietnamese troops invaded Cambodia to oust the Khmer Rouge from power, driving Pol Pot’s forces to the Thai border. The U.S., however, threw its support behind Pol Pot, encouraging other nations to back his forces, funneling aid to his allies, helping him keep Cambodia’s seat at the United Nations, and opposing efforts to investigate or try Khmer Rouge leaders for genocide.

That same year, Kissinger’s mammoth memoir, “White House Years” was published. As journalist William Shawcross pointed out, Kissinger failed to even mention the carnage in Cambodia because “for Kissinger, Cambodia was a sideshow, its people expendable in the great game of large nations.”

In 2001 and again in 2018, the late chef and cultural critic Anthony Bourdain offered sentiments shared by many, but rarely put so eloquently:

Once you’ve been to Cambodia, you’ll never stop wanting to beat Henry Kissinger to death with your bare hands. You will never again be able to open a newspaper and read about that treacherous, prevaricating, murderous scumbag sitting down for a nice chat with Charlie Rose or attending some black-tie affair for a new glossy magazine without choking. Witness what Henry did in Cambodia — the fruits of his genius for statesmanship — and you will never understand why he’s not sitting in the dock at The Hague next to Miloševic.

In the early 2000s, Kissinger was sought for questioning in connection with human rights abuses by former South American military dictatorships, but he ducked investigators, once declining to appear before a court in France and quickly leaving Paris after receiving a summons. He was never charged or prosecuted for deaths in Cambodia or anywhere else.

“Play With It. Have a Good Time.”

“To spare you is no profit; to destroy you, no loss” was the cold credo of the Khmer Rouge. But it could just as easily have been Kissinger’s. In 2010, I followed up with Kissinger, pressing him on the contradiction in his claims about only bombing “North Vietnamese in Cambodia” but somehow killing 50,000 Cambodians, by his count, in the process. “We weren’t running around the country bombing Cambodians,” he told me.

The evidence overwhelmingly demonstrates otherwise, and I told him so.

“Oh, come on!” Kissinger exclaimed, protesting that I was merely trying to catch him in a lie. When pressed about the substance of the question — that Cambodians were bombed and killed — Kissinger became visibly angry. “What are you trying to prove?” he growled and then, when I refused to give up, he cut me off: “Play with it,” he told me. “Have a good time.”

I asked him to answer Meas Lorn’s question: “Why did they drop bombs here?” He refused.

“I’m not smart enough for you,” Kissinger said sarcastically, as he stomped his cane. “I lack your intelligence and moral quality.” He stalked off.

Cambodians in villages like Tralok Bek, Doun Rath, and Mroan didn’t have the luxury of such an easy escape.

The post Survivors of Kissinger’s Secret War in Cambodia Reveal Unreported Mass Killings appeared first on The Intercept.

“A shooting, and Mr. Welch is down,” the driver yelled.

Estes grabbed his coat and ran outside, ignoring his girlfriend’s pleas to stay.

At Welch’s house in the Greek capital, Estes saw the station chief lying on his back on the sidewalk, his wife, Kika, kneeling beside him. Blood covered Welch’s face, and Estes could see immediately that he was dead. “I didn’t need to feel for a pulse,” he said in an interview. A police car arrived, and Estes asked the officer to call an ambulance. When no ambulance arrived, they hauled the body into Welch’s car and Estes and Welch’s driver followed the police officer, siren blaring and lights flashing, through the streets of Athens to the nearest hospital. A medical team was waiting; they quickly placed Welch on a gurney and took him to an examining room. There, a doctor placed a stethoscope on Welch’s chest and confirmed to Estes that he was dead.

Welch was 46 years old. A career CIA officer, he had been the CIA’s Athens station chief for six months.

At the hospital, Welch’s driver finally caught his breath and told Estes what had happened. He had driven Welch and his wife home from a Christmas party at the U.S. ambassador’s residence, then stopped in front of the walled compound that enclosed Welch’s house to open the front gates. As Welch and his wife got out, three armed men in a black car pulled up behind them, burst out of the car, and confronted Welch.

“Put your hands up!” one of the men told Welch in Greek.

“What?” Welch asked in English.

One of the gunmen leveled his .45 caliber handgun and fired three times. An autopsy later showed that the first shot hit Welch in the chest, rupturing his aorta and killing him instantly. The three men got back in their car and sped away. That’s when Welch’s driver rushed to get Estes.

The hospital lobby soon filled with journalists, who had most likely heard about the shooting by monitoring the city’s police radio. Estes realized that many of them already seemed to know that Welch had been the CIA’s station chief. Steven Roberts, a New York Times reporter in Athens who covered Welch’s murder, wrote the next day that he had been talking with Welch at the ambassador’s Christmas party an hour before the shooting.

A spokesperson from the U.S. Embassy arrived, and Estes slipped away from the crowd of reporters. The police found the gunmen’s car, which had been stolen, abandoned several blocks from Welch’s home.

Back at the CIA station, Estes sent cables to CIA headquarters and talked on a secure phone with a top agency official. “When I finished briefing him, he said, ‘I could only hear about half of what you said.’” Estes recalled. “‘Send me a cable repeating what you said immediately. We’ve got to go to the president.’”

Before the Church Committee was created in January 1975, there had been no real congressional oversight of the CIA. The House and Senate Intelligence Committees did not yet exist, and the Church Committee’s unprecedented investigation marked the first effort by Congress to unearth decades of abusive and illegal acts secretly committed by the CIA — and to curb its power.

Sen. Frank Church, the liberal Democrat from Idaho who chaired the committee, had come to believe that the future of American democracy was threatened by the rise of a permanent and largely unaccountable national security state, and he sensed that at the heart of that secret government was a lawless intelligence community. Church was convinced it had to be reined in to save the nation.

The Church Committee’s unprecedented investigation marked the first effort by Congress to unearth decades of abusive and illegal acts secretly committed by the CIA — and to curb its power.

To a great degree, he succeeded. By disclosing a series of shocking abuses of power and spearheading wide-ranging reforms, Church and his Committee created rules of the road for the intelligence community that largely remain in place today. More than anyone else in American history, Church is responsible for bringing the CIA, the FBI, the National Security Agency, and the rest of the government’s intelligence apparatus under the rule of law.

But first, Church and his committee had to withstand a brutal counterattack launched by a Republican White House and the CIA, both of which wanted to blunt Church’s reform efforts. The White House and CIA quickly realized that the Welch killing, which occurred just as the Church Committee was finishing its investigations and preparing its final report and recommendations for reform, could be used as a political weapon. President Gerald Ford’s White House and the agency falsely sought to blame the Church Committee for Welch’s murder, claiming, without any evidence, that its investigations had somehow exposed Welch’s identity and left him vulnerable to assassination.

There was absolutely no truth to the claims, but the disinformation campaign was effective. The Ford administration’s use of the Welch murder to discredit the Church Committee was a model of propaganda and disinformation; an internal CIA history later praised the “skillful steps” that the agency and the White House “took to exploit the Welch murder to U.S. intelligence benefit.”

The Welch case has long since served as a classic example of how to exploit and weaponize intelligence for political purposes. The George W. Bush administration’s efforts to justify the 2003 invasion of Iraq by claiming that Saddam Hussein was behind 9/11; the Republican obsession with the 2012 attack on the U.S. compound in Benghazi, Libya, and their use of it to discredit then-Secretary of State Hillary Clinton; and Donald Trump’s efforts to portray himself as the victim of a “deep state” conspiracy can all be traced back to the way U.S. leaders exploited Welch’s 1975 killing.

The White House and CIA were aided in their propaganda campaign by the fact that Estes did not go public at the time with his account of what really happened in Athens. Now, nearly 50 years later, Estes has finally broken his silence. In interviews for our new book, “The Last Honest Man,” he talked in detail about the murder and its causes with a journalist for the first time, supplying new evidence that Welch’s assassination stemmed from the toxic politics of Athens — not Washington.

Greek hostility toward the United States spread. On August 19, 1974, a pro-Greek mob attacked the U.S. embassy in Nicosia, Cyprus, and both U.S. Ambassador Rodger Davies and a local embassy employee were killed. After a ceasefire, Cyprus was divided into Greek and Turkish zones; the disastrous outcome of the coup in Cyprus later led to the collapse of the military junta in Athens. But anger in Greece toward the United States continued unabated.

The relationship between the CIA and Greece’s Central Intelligence Service, known as the KYP, was also poisoned. Soon, someone had leaked the names of Welch and a few other officers in the CIA’s Athens station to the Greek press.

In November 1975, Welch’s name and home address were published in English language and Greek language newspapers in Athens. The information “was obviously leaked by hostile KYP officers,” Estes said in the interview, “because the only names leaked were those in liaison contact with KYP.” (CIA overseas stations often included officers who were in liaison contact with the intelligence service of the local country — their identities as CIA officers thus declared to the service so they could meet with them and trade intelligence — and others who were not identified so they could spy without the knowledge of the local government.)

Welch was not hard to find; he lived in a luxurious villa that had been the official residence of the CIA station chief for decades. After his name and home address were published in the press, Estes talked to him about whether he should move. But Welch and Estes concluded that the threat was minimal. “We both agreed that political assassination was not part of the fabric of Greek history or culture,” Estes recalled.

It was a fatal miscalculation. Welch’s murder was carried out by a new, extremely violent Greek leftist guerrilla organization called 17 November. While right-wing Greek nationalists hated the United States for betraying Greece over Cyprus, left-wing Greeks blamed the United States for helping to install the military junta in Athens in 1967. The 17 November group was named for an anti-junta protest by students that was brutally broken up on November 17, 1973. Welch was 17 November’s first target. (The group continued to conduct terrorist attacks in Greece, including the murders of other American officials, until it was finally crushed in 2002.)

Estes reported the truth back to CIA headquarters: that Welch had been murdered by Greek terrorists after being publicly exposed by the KYP, the Greek intelligence service. His story was buried in the service of a more helpful political narrative.

After Welch’s murder, emotions were running high in the CIA station in Athens. On the night of the assassination, Estes had to restrain another CIA officer after he grabbed a pistol and threatened to seek revenge by killing the KGB’s Athens Rezident, Welch’s Soviet counterpart.

Welch’s murder hit Estes hard as well. He and Welch had come up through the ranks of the agency together, and by 1975, they were close friends who met to play chess every Sunday. Welch and Estes had previously served together in Cyprus, and they understood the island’s status as a battlefield in the long-running conflict between Turkey and Greece. While serving in Cyprus, Estes said, Welch had recruited the personal secretary of Cypriot President Makarios III to spy for the CIA.

Estes was eager to solve his friend’s murder, without waiting for the Greek police. At the time, he didn’t know about the new leftist 17 November organization since Welch’s killing was its first operation. Instead, Estes focused his investigation on a right-wing terrorist group.

He and other CIA officers in Athens grilled their local sources and found that a gunman associated with a Greek-Cypriot right-wing paramilitary group known as EOKA had left Athens on a flight to Nicosia, Cyprus, the day after Welch’s killing. The gunman was known to have killed people in Cyprus with a .45 handgun — the same kind of weapon used to kill Welch.

When he worked in Cyprus years earlier, Estes had recruited an EOKA hitman to work for the CIA. “When I left Cyprus, he told me that whenever the CIA wanted something done that it didn’t want to do itself, call me,” recalled Estes. “So, after Welch was killed, I sent a case officer to Nicosia to meet him and tell him that Ron Estes sent him.”

The CIA officer asked the Cypriot agent if he knew the EOKA killer who had flown from Athens to Cyprus the day after Welch’s murder. The hitman said he did. The CIA officer told the hitman to go meet the man and ask him if he’d killed Welch.

The hitman reported that, when he confronted the EOKA killer, the other man was so scared that he offered to plead his innocence to the CIA himself. An American case officer then met with the man in Laranca, Cyprus, where he passed a CIA-administered polygraph.

Estes’s conviction that Welch had been exposed by the KYP and murdered by Greek terrorists, and the fact that CIA officers were conducting their own murder investigation on the ground in Cyprus, were not made public in Washington at the time. That information would only have gotten in the way of the campaign to exploit Welch’s murder to discredit the Church Committee.

By late 1975, Ford and the CIA were both worried about their public standing. The Church Committee’s disclosures of intelligence abuses had weakened the CIA, and the White House was concerned about the political impact of the committee’s disclosures on Ford, the first commander-in-chief who had never been elected either president or vice president. Ford had been the obscure House minority leader in 1973 when he was chosen as vice president under the 25th Amendment by then-President Richard Nixon and Congress. Ford replaced Spiro Agnew, who had been forced to resign amid a corruption scandal; he became president when the Watergate scandal forced Nixon to resign in August 1974. Ford was headed into a tough presidential election campaign in 1976, and he wasn’t even assured of winning the Republican nomination. He faced a formidable challenge on the right from former California Gov. Ronald Reagan, and so Ford was eager to prove his conservative bona fides.

Now, with Welch’s assassination, the White House and CIA quickly realized they had been handed a political gift — a martyred hero whose death they could lay at the feet of liberal Democrat Church.

Largely through innuendo, the White House and the CIA blamed the Church Committee for Welch’s death, claiming that its investigations had somehow led to his exposure.

It didn’t matter that Welch’s murder had nothing to do with the Church Committee. It didn’t matter that Estes had told CIA headquarters that the Greek intelligence service had leaked Welch’s name and address to the Greek press as revenge for U.S. policy in Cyprus. Largely through innuendo, the White House and the CIA blamed the Church Committee for Welch’s death, claiming that its investigations had somehow led to his exposure.

The day after Welch’s murder, Welch’s father, who had been living in Athens with his son, asked Estes to see if Welch could be buried at Arlington National Cemetery. Welch had never served in the military, so burial at Arlington would require a special exemption.

Estes says he cabled CIA headquarters about the request, and Ford quickly gave his approval. That led to a grand political moment, stage-managed by the White House.

A U.S. Air Force plane flew Welch’s body from Athens to Washington. Welch’s son, a Marine lieutenant wearing his dress blues, accompanied his father’s body on the flight. The plane delayed its landing, circling Andrews Air Force Base outside Washington for 45 minutes so its arrival could be broadcast live during the morning network television news programs.

Daniel Schorr, a CBS News correspondent who covered the event, wrote in his personal journal, which was published in Rolling Stone in 1976, that “the public relations people explain that the big cargo plane, already overhead, will stay in a holding pattern and land at 7 a.m. so that it will be available for live televising on network morning news programs. We do in fact carry it live on the CBS Morning News.”

Welch’s January 6, 1976, funeral service at Arlington was attended by Ford, Secretary of State Henry Kissinger, and CIA director William Colby. No president had ever before attended the funeral of a slain CIA officer.

After the funeral service, Ford stood beside Welch’s widow while Welch’s coffin was placed on a horse-drawn caisson. “We watch, and film … the same caisson that carried the body of President Kennedy, the folded flag given to the widow by Colby,” wrote Schorr in his journal.

“It is the CIA’s first public national hero,” Schorr wrote. “I have a sense that Welch, dead, has one more service to render the CIA. He will be turned into a symbol in the gathering counter-offensive against disclosure.”

While Ford, Kissinger, and Colby attended Welch’s funeral, the FBI was investigating a death threat against Church in retaliation for Welch’s murder, sent by a group calling itself Veterans Against Communist Sympathizers.

Another prominent Washington official also attended Welch’s funeral: George Herbert Walker Bush, who had just been nominated to succeed Colby as CIA director. Ford had chosen Bush after firing Colby, who Ford believed had cooperated too readily with the Church Committee’s inquiries. The opening battle between the White House, the CIA, and Church would be fought over Bush’s confirmation in the Senate.

Church saw Bush’s nomination as an effort by Ford to put a partisan hack at the CIA, someone who would do the bidding of the White House just as Congress was seeking to curb the agency’s abuses. Church viewed Bush’s nomination as a direct attack on the Church Committee.

The chance to be CIA director came at a critical moment in Bush’s career. Until then, he had a poor record in elected politics. He won a House seat from Texas and served two terms but then lost a campaign for the Senate in 1970. After that, Bush started to rise in the Republican ranks through a series of appointed positions. He served as chair of the Republican National Committee during Watergate, a job that forced him to make repeated public excuses for Nixon but earned him credit for party loyalty. He also served as United Nations ambassador under Nixon and as head of the U.S. Liaison Office in China under Ford.

Ford was considering Bush to be his running mate in 1976; the job as CIA director seemed like a stepping stone. But first, Bush had to get past Frank Church.

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Even as he was still working on his committee’s investigations and reports, Church went all out to block Bush’s confirmation. On December 16, 1975, Church testified as a witness against Bush during his confirmation hearings before the Senate Armed Services Committee. Bush’s confirmation was “ill-advised,” Church told the committee, because of his partisan political background and because he had refused to rule out running as vice president in 1976. Church complained that the White House was using the CIA as a “grooming room” for Bush “before he is brought on stage next year as a vice presidential running mate.”

But Welch’s murder quickly changed the political calculus of the confirmation fight in favor of Bush — and against Church.

The White House and CIA followed a subtle but effective strategy to use the Welch murder to help get Bush confirmed, while also poisoning the political climate for Church and his Committee. Immediately after Welch’s murder, the CIA sought to blame the Fifth Estate, a left-wing group based in Washington that published Counter Spy, a small left-wing magazine that had previously printed long lists of CIA officials’ names, including Welch’s when he served in Peru. Agency officials also blamed Philip Agee, a former CIA officer who had just published “Inside the Company,” a controversial book that had listed the names of hundreds of CIA officers and agents.

Many observers saw the CIA’s efforts to blame Counter Spy and Agee as a way to shift the blame for Welch’s murder from Greek terrorists to the CIA’s American critics. And if the public inferred that those American critics also included Church and his committee, so be it.

Conservative pundits quickly made the link explicit. In early January 1976, right-wing columnist Smith Hempstone wrote that the blame for Welch’s murder should be shared by “the congressional committees that for nearly a year have been holding the CIA up to ridicule and verbal abuse.” Around the same time, an anonymous, pro-CIA newsletter, the Pink Sheet, called Welch’s murder “a tragic reminder of a very basic truth: There are individuals and organizations in this country whose activities are aiding the enemies of the U.S. Are we to be impotent against such fifth columnists in our midst? Please write to your congressman and senators and ask what they propose to do about this increasingly dangerous problem. Instead of harming our internal security agencies, Senator Frank Church and his colleagues should be investigating outfits like the Fifth Estate.” The Pink Sheet’s diatribe was included in CIA files and publicly released by the CIA among other documents declassified in 2004. It is not clear whether the newsletter was published by someone affiliated with the CIA.

Meanwhile, former CIA officers began to make themselves available to the press to attack Church. One of them, Mike Ackerman, told reporters that the Church Committee shared the blame for Welch’s death, adding that the committee should have conducted its investigations without publicly disclosing agency operations.

New York Times columnist Anthony Lewis saw through the unfolding White House-CIA strategy.

“Understandably, the Welch case has brought to a boil the resentment felt by CIA veterans at critics of the agency,” Lewis wrote. “But it is another matter entirely to use the murder of Richard Welch as a political device, as President Ford and his national security assistants are evidently trying to do now.”

Colby’s “denunciation [of Fifth Estate] plainly had a larger purpose: to make the case that the CIA needs more secrecy in general than it has been getting lately,” Lewis wrote. “President Ford and his colleagues, judging by their recent comments, hope to prevent any thoroughgoing reform of the CIA. They will use the Welch case to that end, in particular to resist limits on covert action and to reduce congressional scrutiny.”

The Washington Star’s Norman Kempster agreed, noting that “only a few hours after the CIA’s Athens station chief was gunned down in front of his home, the agency began a subtle campaign intended to persuade Americans that his death was the indirect result of congressional investigations and the direct result of an article in an obscure magazine. The nation’s press, by and large, swallowed the bait.”

The campaign by the White House and the CIA to exploit Welch’s murder ensured Bush’s confirmation as CIA director. On January 27, 1976, Bush sailed through the Senate on a vote of 64-27. Ford made only one concession to the Senate before the vote: He announced that Bush would not be his running mate in 1976.

Four years later, Bush was elected vice president on the ticket with Reagan.

The false narrative that Welch had been murdered because of reckless disclosures in Washington remained powerful for years afterward, ultimately leading to legislation that made it illegal to publish the names of covert CIA officers, a law that has since often been abused by the government to crack down on whistleblowers and dissent.

After Welch’s murder, public support for the Church Committee waned. Church was stunned by the sudden reversal of the political climate and angered that Bush continued to push the false story around Welch’s killing even after he became CIA director.

During one closed hearing of the Church Committee soon after Bush had been confirmed, “Bush blurted out, ‘You were responsible for Welch’s assassination,’” recalled Fritz Schwarz, the Church Committee’s chief counsel. “It pissed off everybody. We forced Bush to apologize during the hearing.” Still, the Bush family continued to push false narratives about the Welch murder for years. In the 1990s, Agee, the former CIA officer, sued Barbara Bush for libel after she wrote in her memoir that Welch had been killed after Agee’s book blew his cover. The suit was dropped in 1997 after Bush acknowledged that Agee’s book was not responsible for Welch’s assassination.

Meanwhile, Church also had to convince other senators, whose support for his committee was wavering in the face of the White House and CIA disinformation campaign, that his investigation was not responsible for Welch’s murder.

“One of the things we did was tell other senators that we didn’t reveal Welch’s name,” recalls former Church Committee staffer Loch Johnson. “We had to make it clear to other senators that we had nothing to do with it.”

The controversy over Welch’s murder hit just as Church was about to launch his own bid to run for president in 1976. After the Church Committee had completed its investigations, Church announced his candidacy in March 1976. But by waiting until the committee’s work was done, Church started off far behind the front-runner for the Democratic nomination, former Georgia Gov. Jimmy Carter. Still, Church surprisingly won several primaries before dropping out and became a leading contender to be Carter’s running mate. When Carter instead chose Walter Mondale, a Democratic senator from Minnesota, Church began to suspect that CIA officials had worked behind the scenes to torpedo his selection. Church confided to his son that, just before the Democratic convention in New York, he’d gotten a call from the CIA saying the agency had been told that The Economist magazine was going to publish a story revealing that the Church Committee had been infiltrated by the KGB.

“Can you imagine any rumor more certain to spook a presidential candidate than that his prospective vice president has overseen an operation which was infiltrated by the KGB?” Church told his son, Forrest, who recounted the conversation in his 1985 memoir.

It turned out that the reporter the CIA had told Church was writing the story did not exist, and no story was ever published. “Church’s feeling that he had been sandbagged by the CIA might have been an illusion,” Forrest Church wrote. “One thing is certain, however. There is no member of the Senate whom the leaders of our intelligence services would have less preferred sitting a heartbeat away from the presidency.”

Former Church staffer Peter Fenn corroborated that account: “We talked a good deal about the CIA torpedoing him.”

The CIA’s hatred of Church didn’t end in 1976.

In 1980, Church was facing a tough reelection campaign in Idaho. As the election loomed, Rep. Steve Symms, a hard-right Republican who represented Idaho’s first congressional district, appeared the most likely candidate to run against him. Symms, whose family owned a large fruit ranch near Caldwell, Idaho, had been plotting to take on Church for years. He had even urged Bob Smith, his friend and chief of staff, to run against Church in 1974 as a stalking horse.

But just in case Symms had any last-minute doubts, James Jesus Angleton, the CIA’s former chief of counterintelligence, stepped in to give him a push.

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Angleton felt he had been humiliated by being forced to testify in public before the Church Committee, and Church was at the top of his personal enemies list. In the late 1970s, Angleton, who was originally from Idaho, began meeting with Symms to convince him to run against Church.

“He was from Boise, and he really despised Frank Church,” Symms said in an interview. “He used to come over to see me in the House,” he added. Angleton would recount to Symms all the damage he claimed Church had wrought on the CIA, Symms said, and then Angleton would say, “You should run against Church.”

“I got exposed to that [intelligence] stuff through Angleton,” Symms added. “I still remember him coming over to my office and sitting on my couch, and he would smoke one cigarette after another. He would kind of put his leg up and talk to me on intelligence. He wanted Church defeated.”

Symms beat Church in 1980, which was cause for celebration in CIA circles.

“After I won the Senate race, I was invited to a party at someone’s house and I was just about the only person there who was not former intelligence,” Symms recalled. “It was quite impressive to meet all these people and see how deeply they all despised Church.”

This article was adapted from “The Last Honest Man: The CIA, the FBI, the Mafia, and the Kennedys — and One Senator’s Fight to Save Democracy” by James Risen with Thomas Risen, which will be published on May 9, 2023, by Little, Brown and Company, an imprint of Hachette Book Group, Inc. Copyright © 2023 by James Risen. All rights reserved. 

The post How the Murder of a CIA Officer Was Used to Silence the Agency’s Greatest Critic appeared first on The Intercept.

The 17-year-old then approached a fellow student, pulled a hunting-style knife out of his backpack, and repeatedly stabbed the other student in the hands and back.

The Utica City School District had installed the $4 million weapons detection system across 13 of its schools earlier that summer, mostly with public funds. The scanners, from Massachusetts-based Evolv Technology, look like metal detectors but scan for “signatures” for “all the guns, all the bombs, and all the large tactical knives” in the world, Evolv’s CEO Peter George has repeatedly claimed.

In Utica, the 17-year-old’s weapon wasn’t the first knife, or gun, to bypass the system. Earlier that month, at a parents’ night, a law enforcement officer had walked through the system twice with his service revolver and was puzzled to find it was never detected. School authorities reached out to Evolv and were subsequently told to increase the sensitivity settings to the highest level.

The detector did finally go off: It identified a 7-year-old student’s lunch box as a bomb. On Halloween, however, it remained silent.

“They’ve tried to backtrack by saying, ‘Oh no, it doesn’t pick up all knives,’” said Brian Nolan, who had been appointed acting superintendent of the Utica City School District 10 days before the stabbing. “They don’t tell you — will it pick up a machete or a Swiss army knife? We’ve got like really nothing back from Evolv.”

Ultimately, Utica City School District removed and replaced the scanners from their high schools, costing the district another $250,000. In the elementary and middle schools, which retained Evolv scanners, three knives have been recovered from students — but not because the scanners picked them up, according to Nolan.

Stories about Evolv systems missing weapons have popped up nationwide. Last month, a knife fight erupted between students at Mifflin High School in Ohio. It’s not clear how the knives entered the building, but it was less than three months after the school district spent $3 million installing Evolv scanners.

As school shootings proliferate across the country — there were 46 school shootings in 2022, more than in any year since at least 1999 — educators are increasingly turning to dodgy vendors who market misleading and ineffective technology. Utica City is one of dozens of school districts nationwide that have spent millions on gun detection technology with little to no track record of preventing or stopping violence.

Evolv’s scanners keep popping up in schools across the country. In a video produced by the Charlotte-Mecklenburg district in North Carolina about its new $16.5 million system, students spoke about how the technology reassured them. “I know that I’m not going to be threatened with any firearms, any knives, any sort of metallic weapon at all,” one said.

“Private companies are preying on school districts’ worst fears and proposing the use of technology that’s not going to work and may cause many more problems than it seeks to solve.”

Over 65 school districts have bought or tested artificial intelligence gun detection from a variety of companies since 2018, spending a total of over $45 million, much of it coming from public coffers, according to an investigation by The Intercept.

“Private companies are preying on school districts’ worst fears and proposing the use of technology that’s not going to work,” said Stefanie Coyle, deputy director of the Education Policy Center at the New York Civil Liberties Union, or NYCLU, “and may cause many more problems than it seeks to solve.”

In December, it came out that Evolv, a publicly traded company since 2021, had doctored the results of their software testing. In 2022, the National Center for Spectator Sports Safety and Security, a government body, completed a confidential report showing that previous field tests on the scanners failed to detect knives and a handgun. When Evolv released a public version of the report, according to IPVM, a surveillance industry research publication, and underlying documents reviewed by The Intercept, the failures had been excised from the results. Though Evolv touted the report as “fully independent,” there was no disclosure that the company itself had paid for the research. (Evolv has said the public version of the report had information removed for security reasons.)

Five law firms recently announced investigations of Evolv Technology — a partner of Motorola Solutions whose investors include Bill Gates — looking into possible violations of securities law, including claims that Evolv misrepresented its technology and its capabilities to it.

“When you start peeling back the onion on what the technology actually does and doesn’t do, it’s much different than the reality these companies present,” said Donald Maye at IPVM. “And that is absolutely the case with Evolv.”

Evolv told The Intercept it would not comment on any specific situations involving their customers and declined to comment further. (Motorola Solutions did not respond to a request for comment.)

The overpromising of artificial intelligence products is an industrywide problem. The Federal Trade Commission recently released a blog post warning companies, “Keep your AI claims in check.” Among the questions was, “Are you exaggerating what your AI product can do?”

At an investor conference in June 2022, Evolv CEO George was asked if the company would have stopped the tragic school shooting in Uvalde, Texas, where 19 students and two teachers were killed. “The answer is when somebody goes through our system and they have a concealed weapon or an open carry weapon, we’re gonna find it, period,” he responded. “We won’t miss it.”

In January, the scanners caught a student trying to enter a high school with a handgun in Guilford, North Carolina. Subsequently, an Evolv spokesperson told WFMY News that their systems had uncovered 100,000 weapons in 2022. In a presentation for investors in the fourth quarter of 2022, George said the detection scanners, on average, stopped 400 guns per day.

There is little peer-reviewed research, however, showing that AI gun detection is effective at preventing shootings. And in the case of Uvalde, the shooter began firing his gun before even entering the school building — and therefore before having passed through a detector.

“The odds of that happening — someone walks in with a displayed gun — are really, really small. It just doesn’t make sense that that’s what you’re investing in.”

“The odds of that happening — someone walks in with a displayed gun — are really, really small,” said Andrew Guthrie Ferguson, a professor of law at American University’s law school and an expert on surveillance. “It just doesn’t make sense that that’s what you’re investing in.”

Even in airports with maximum security protocols, Evolv’s technology has proved to have gaping holes. When an official at Denver International Airport expressed interest in Evolv scanners, he asked a colleague at Oakland International Airport, which uses the machines.

“It is not an explosives detection machine per se,” wrote Douglas Mansel, the aviation security manager in Oakland, in an internal email obtained through a public records request and shared with The Intercept, “So if an employee (or law enforcement during a test) walks through with a brick of C4” — an explosive — “in their hands, the Evolv will not alarm.” (The Oakland Airport told The Intercept it does not comment on its security program.)

In a BBC interview in 2020, Evolv said the density of metal is one key indicator of a weapon’s presence. But the company firmly denies that their scanners are akin to metal detectors. “We’re a weapons detector, not a metal detector,” George said on a conference call in June 2021. (A large competitor of Evolv is CEIA, which manufactures metal detectors without AI, used in airports and schools.)

Yet in many cases, Evolv hasn’t picked up weapons. And researchers have also highlighted how metallic objects, such as laptops, repeatedly set the system off. “They go through great lengths to claim they are not a metal detector,” said Maye of IPVM. “To the extent to which AI is being used, it’s open to interpretation to the consumer.”

Despite claims by George that the system can scan up to 1,000 students in 15 minutes, in the Hemet Unified School District in California, false alarms slowed ingress to school buildings. The solution, according to Evolv, was to simply encourage educators to let students proceed.

“They only need to clear the threat(s) and not figure out what alarmed the system,” wrote Amy Ferguson, customer manager at Evolv, in an internal email to the school system obtained through a public records request and shared with The Intercept. “I recommended not doing a loop back unless necessary. … Many students were looping back 2 or 3 times.” (The Hemet Unified School District did not respond to a request for comment.)

Across the country in Dorchester County Public Schools in Maryland, the system had 250 false alarms for every real hit in the period from September 2021 to June 2022, according to internal records obtained by IPVM. The school district spent $1.4 million on the Evolv software, which it bought from Motorola.

“It plays an important role in our efforts to keep our School District safe,” the district told The Intercept. “And we plan to expand its use within the District.”

Evolv isn’t the only company making bold claims about its sophisticated weapons detection system. ZeroEyes, a Philadelphia-based AI company, states in contracts that “our proactive solution saves lives.” Founded by Navy SEALs in 2018, the firm uses video analytics and object detection to pick up guns.

ZeroEyes’s website lists the timeline for the Sandy Hook shooting, arguing its technology could have materially reduced the response time. When a gun is visible on camera, an alert gets sent to a “24/7/365 ZeroEyes Operations Center Team,” with people monitoring the feed, who in turn confirm the gun and alert the school and police. It claims to do all of this in three to five seconds.

The human team is key to the group’s system, something critics say belies the weakness of the underlying AI claims. “This is one of the fundamental challenges these companies have. Like if they could fully automate it reliably, they wouldn’t need to have a human-in-the-loop,” said Maye. “The human-in-the-loop is because AI isn’t good enough to do it itself.”

“We have never suggested that AI alone is enough,” Olga Shmuklyer, spokesperson for ZeroEyes, told The Intercept. “We would never trust AI alone to determine whether a gun threat is real or fake, nor should anybody else.”

In addition to Philadelphia, the company also has an operations center in Honolulu, Hawaii, “to cater to different time zones.”

ZeroEyes seems determined to overcome its critics and is so far faring well. The company raised $20 million in 2021. According to co-founder Rob Huberty, in a LinkedIn post, the team’s mantra is “F*** you, watch me.”

“We are problem solvers, and this is a difficult problem,” said Shmuklyer, the spokesperson. “Without the mentality proposed in that post, we wouldn’t have a solution to offer to school districts around the country.”

During the pandemic, school shootings rose in tandem with a spike in gun violence in general. The sort of panic that ensued can lead to impulsive and ineffective action, according to safety experts.

“We are seeing some school boards and administrators making knee-jerk reactions by purchasing AI weapons detection systems,” said Kenneth Trump, president of National School Safety and Security Services. “Unfortunately, the purchase of the systems appears to be done with little-to-no professional assessment of overall security threats and needs.”

Schools in Colorado and Texas brought weapons detection software from a now-convicted fraudster. Barry Oberholzer developed SWORD in 2018 under the startup X.Labs, registered as Royal Holdings Technologies, which he claimed to be the first mobile phone case providing gun detection software.

“I can identify you and identify if you are carrying a gun in 1.5 seconds,” Oberholzer told WSFA 12 News in Alabama in February 2019. “You don’t even have to click. You just need to point the device at the person.”

Later that year, it was reported that Oberholzer was on the run from over two dozen fraud and forgery charges in South Africa. (Todd Dunphy, a board member of and investor in X.Labs, denied the charges on Oberholzer’s behalf and produced an unverified letter from South African authorities clearing him.)

His SWORD product was endorsed by former high-level U.S. officials.

Former FBI agent James Gagliano, who was listed as an adviser to X.Labs, praised the product as “next generation public safety threat-detection.” Charles Marino, a retired Secret Service special agent, was listed as the company’s national security adviser.

Marino said he invested in the company but has not been involved for years and did not work on the SWORD project. “He swindled everybody,” Marino told The Intercept, referring to the conspiracy conviction. “Look, you kiss a lot of frogs in this world.”

Gagliano said in an email that he severed ties with Oberholzer after hearing of the fraud charges. “I was as stunned as anyone,” he said. “Have had no contact with him since I learned of his indictment in the Summer of 2021. I was excited about the technology he was seeking to introduce to law enforcement.”

In June 2020, X.Labs announced the rebranding of SWORD to X1, a standing device and “full-featured weapons detection system” in partnership with another firm.

Last month, Oberholzer and his business partner Jaromy Pittario pleaded guilty in federal court to conspiracy to defraud investors and creditors. The Department of Justice accused Oberholzer of posing as Gen. David Petraeus, the former CIA director, while pitching the product to venture capital firms.

“Instead of attracting investors honestly, Oberholzer lied continuously to make his company more appealing to investors,” U.S. Attorney for the Southern District of New York Damian Williams said in a statement.

None of it deterred the company. Its scanners, despite problems, remain in schools — and X.Labs continues to cultivate new business. “All of the devices that are purchased by clients are in their possession and can be used as they see fit,” Dunphy said. “The company, like last year, is run by the board and is working with parties to complete the last phase of development for the purpose of slowing down mass shootings globally.”

Oberholzer is no longer involved with X.Labs, said Dunphy, the board member, who responded to emails addressed to Oberholzer.

“Mr Oberholzer is a professional helicopter pilot and his comings and goings has nothing to do with X.labs,” Dunphy said, “as he resigned from the company in February 2021.”

There is a reason districts in New York, such as Utica, have been a target of gun detection vendors. Most of this technology is being funded by taxpayer money and, in the Empire State, there is a lot to spend.

Under the Boards of Cooperative Educational Services aid, school purchases get reimbursed based on a school district’s poverty level. Utica City School District, which has a high poverty level, was reimbursed 93 cents on the dollar on the Evolv sale, according to acting superintendent Nolan.

The Boards of Cooperative Educational Services told The Intercept, “As a coalition of the state’s 37 Boards of Cooperative Educational Services, BOCES of NYS has neither authority nor oversight regarding the budgets, purchases, or reimbursement rates of any school district.” The regional Oneida-Herkimer-Madison Counties BOCES office — which covers the Utica school district — did not respond for comment.

While the district gets most of its money back after the disastrous purchase of the Evolv scanners, “New York state taxpayers are still on the hook for the system,” Nolan said.

The Smart Schools Bond Act, passed in 2014, also set aside $2 billion funding to “finance improved educational technology and infrastructure,” drawing the attention of vendors nationwide.

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“Folks in the school security industry got wind that New York State was sitting on this big pot of money that school districts had access to,” said Coyle of the NYCLU. “And that kind of opened the floodgates for companies to try to convince school districts to use that state funding to buy products they don’t need, they don’t know how to use, and are potentially harmful.”

New York isn’t the only state ready to spend a fortune. A 2019 Texas bill allocated $100 million in grants for schools seeking to purchase new equipment.

Federal Covid-19 relief dollars can also be directed to things like school security systems, through the Elementary and Secondary School Emergency Relief Fund. Companies, including ZeroEyes and a similar firms, advertise how schools can receive a grant for the “development and implementation of procedures and systems to improve the preparedness and response efforts of a school district.”

“We are targeting sales to all states,” Shmuklyer, of Zero Eyes, said. “A lack of funds should not be the reason why a school cannot be proactive in addressing the mass shooting problem.”

Experts argue schools are just a cheap training ground for technology vendors to test and improve their object detection software so that they can eventually sell it elsewhere.

“Part of the reason why these companies are offering schools the technologies at a relatively cheap price point is that they’re using the schools as their grounds for training,” said Ferguson, the American University professor. “And so those schools or students become data points in a large data set that’s actually improving the technology so they can sell it to other people in other places.”

“They keep saying how the artificial intelligence system they use gets refined after more usage, because they collect more data, more information. But what’s it going to take, 20 years?”

Acting superintendent Nolan himself was told by Evolv the system would get smarter over time with more use. “They keep saying how the artificial intelligence system they use gets refined after more usage, because they collect more data, more information,” he said. “But what’s it going to take, 20 years?”

The lack of regulation leads to a lack of transparency on the use of the data itself. “There’s no protections in place,” said Daniel Schwarz, privacy and technology strategist at NYCLU, “And it raises all these issues around what happens with the data. … Oftentimes, what we’ve caught out is that they actually worsen racial disparities and biases.”

An analysis by the MacArthur Justice Center found that 89 percent of ShotSpotter alerts in Chicago from 2019-2021 turned up no gun-related crime. “Every unfounded ShotSpotter deployment creates an extremely dangerous situation for residents in the area,” according to the report.

There has been extensive reporting on police departments and other agencies’ use of ShotSpotter nationwide — but not schools. Public records show Brockton Public Schools, in Massachusetts, for instance, bought access to the technology for three years in a row. The school system said in a statement that the public document showing its purchase of ShotSpotter was in error and referred instead to a purchase by the police department; the school spokesperson said Brockton schools received a separate donation of ShotSpotter, but never activated it. (The school system did not say who donated the system, and the police department did not respond to a request for comment.)

“Contrary to claims that the ShotSpotter product leads to over-policing, ShotSpotter alerts allow police to investigate a gunfire incident in a more precise area,” Sara Lattman, a SoundThinking spokesperson, said in a statement to The Intercept. “Additionally, ShotSpotter has maintained a low false positive rate, just 0.5%, across all customers in the last three years.”

For many advocates against gun violence, particularly in schools, gun control measures like an assault weapons ban would go a long way in curtailing the deadly effects of attacks. With Congress failing to enact such policies, experts argue that schools should refrain from turning to shoddy technology to support their students.

“We advise schools to focus on human factors: people, policies, procedures, planning, training, and communications,” said Trump, the National School Safety and Security Services head. “Avoid security theater.”

Vendors, though, continue to emphasize the risk of gun violence and rely on the steady drumbeat of attacks to generate fear in potential clients — and to make sales.

“While recent high visibility attacks at publicly and privately-owned venues and schools have increased market awareness of mass shootings,” said Evolv’s recent annual disclosure report, “if such attacks were to decline or enterprises of governments perceived the general level of attacks has declined, our ability to attract new customers and expand our sales to existing customers could be materially and adversely affected.”

The company even helps schools market the technology to their own communities. In an email from Evolv to the Charlotte-Mecklenburg school district, a bulleted list of talking points makes suggestions for how the school system might respond to public queries about the scanners. One of the talking points said, “Security approaches included multiple layers,” adding that “this approach recognizes the reality that no single layer or single technology is 100% effective.”

When reached for comment by The Intercept, Eddie Perez, a spokesperson for the Charlotte-Mecklenburg school district, quoted the talking point verbatim in an emailed response.

That hedged view is out of step with how people in the district itself speak about the system: as an absolute assurance of a gun-free safety. Students in the video produced by the school district said, “You get a certain reassurance that there are no dangerous weapons on campus.”

Correction: May 11, 2023
This story has been updated to use the correct spelling of ZeroEyes spokesperson Olga Shmuklyer’s name. It has also been updated to reflect a clarification received after publication from Brockton Public Schools in Massachusetts that the ShotSpotter system donated to the schools was not received from the police.

The post AI Tries (and Fails) to Detect Weapons in Schools appeared first on The Intercept.

In the courtyard of her family’s tree-lined compound in a well-to-do neighborhood in Niger’s capital, members of Miriam’s ethnic group had been describing jihadist attacks on their historic community in a rural region to the north. Now, the six or seven men wearing tagelmusts — a combination of turban and scarf worn by Tuareg men to provide protection from sun and dust — were also glued to their phones as chimes announced incoming texts and calls. Voices on the phones sounded panicked. There were gunshots, and a familiar roar rumbled through the desert scrubland 100 miles away. At any moment, relatives warned, they expected an attack by the “motorcycle guys.”

Over the last decade, Niger and its neighbors in the West African Sahel have been plagued by terrorist groups that have taken the notion of the outlaw motorcycle gang to its most lethal apogee. Under the black banners of jihadist militancy, men on “motos” — two to a bike, their faces obscured by sunglasses and turbans, armed with Kalashnikovs — have terrorized villages across the borderlands where Burkina Faso, Mali, and Niger meet. These militants, some affiliated with Al Qaeda or the Islamic State group, impose zakat, an Islamic tax; steal animals; and terrorize, assault, and kill civilians.

Jihadist motorcyclists, Miriam reminded me, had thundered into the village of Bakorat on March 21, 2021. As described afterward by one of the survivors, the motos “swept into the village like a sandstorm, killing every man they saw. They shot one of my uncles in front of me. His 20-year-old son ran to save him, but he perished as well. We found them, slumped over each other.” Attacking in overwhelming numbers and with military precision, the jihadists executed men and boys while looting and burning homes. “They attacked the well like it was a military objective, opening fire on the dozens of men there. As they killed, I heard the attackers saying, ‘This is your time … for working with the state,’” another survivor told Human Rights Watch. “I collapsed, seeing the carnage … my father, my brothers, my cousins, my friends lying there, dead and dying.” Human Rights Watch said more than 170 people were massacred near Bakorat and Intazayene villages and nearby nomad camps that day. Miriam and her relatives put the number at 245.

As we sat in the courtyard, it all seemed to be happening again.

U.S. Military Aid

In 2002, long before motorcycle attacks became commonplace in the tri-border region of the Sahel, the United States began providing Niger with counterterrorism assistance. The U.S. flooded this country with military equipment, from armored vehicles to surveillance aircraft. Since 2012, the tab to U.S. taxpayers is more than $500 million and climbing, one of the largest security assistance programs in sub-Saharan Africa.

In fact, Niger hosts one of the largest and most expensive drone bases run by the U.S. military. Built in the northern city of Agadez at a price tag of more than $110 million and maintained to the tune of $20 to $30 million each year, Air Base 201 is a surveillance hub and the lynchpin of an archipelago of U.S. outposts in West Africa. Home to Space Force personnel, a Joint Special Operations Air Detachment, and a fleet of drones — including armed MQ-9 Reapers — the base is an exemplar of failed U.S. military efforts in this country and the wider region. With terrorism skyrocketing in the Sahel while the U.S. pours hundreds of millions of dollars into security assistance, base construction, and troop deployments, this drone outpost — built to enhance security in the region — can’t even protect its own contractors and the U.S. tax dollars that keep it running. Less than a mile from the base’s entrance, as The Intercept recently reported, bandits conducted a daylight armed robbery of base contractors and drove off with roughly 24 million West African CFA francs late last year.

U.S. troops in the country also train, advise, and assist local counterparts and have fought and even died — in an ambush by ISIS near the village of Tongo Tongo in 2017. Over the last decade, the number of U.S. military personnel deployed to Niger has jumped more than 900 percent from 100 to 1,001. Niger has seen a proliferation of U.S. outposts that includes not just the huge drone base in Agadez, but also another one in the capital, at the main commercial airport. You can sit in a departure lounge and watch drones land and take off.

Last month, U.S. Secretary of State Antony Blinken met with Niger’s President Mohamed Bazoum and decried the growing regional influence of the Russian mercenary Wagner Group. “Where Wagner has been present, bad things have inevitably followed,” said Blinken, noting that the group’s presence is associated with “overall worsening security.” The U.S. was a better option, he said, and needed to prove “that we can actually deliver results.” But the U.S already has a two-decade record of counterterrorism engagement in the region — and “bad things” and “overall worsening security” have been the hallmarks of those years.

Throughout all of Africa, the State Department counted a total of just nine terrorist attacks in 2002 and 2003, the first years of U.S. counterterrorism assistance to Niger. Last year, the number of violent events in Burkina Faso, Mali, and western Niger alone, reached 2,737, according to a new report by the Africa Center for Strategic Studies, a Defense Department research institution. This represents a jump of more than 30,000 percent since the U.S. began its counterterrorism efforts. (Wagner has only been active in the region since late 2021.) During 2002 and 2003, terrorists caused 23 casualties in Africa. In 2022, terrorist attacks in just those three Sahelian nations killed almost 7,900 people. “The Sahel now accounts for 40 percent of all violent activity by militant Islamist groups in Africa, more than any other region in Africa,” according to the Pentagon’s Africa Center.

The impact of armed conflict and forced displacement on Nigeriens has been enormous.

Last year, an estimated 4.4 million people experienced dire food insecurity — a record number and a 90 percent increase compared to 2021. Between last January and September, almost 580,000 children under 5 suffered from wasting. This year, the United Nations estimates that about 3.7 million Nigeriens, including 2 million children, will need humanitarian assistance. Many of those in need are also the most difficult to reach due to insecurity.

It’s worth noting that in 2002, when the U.S. began pumping counterterrorism funds into the country, the overall food situation was described as “satisfactory” and undergoing “progressive improvement,” according to a food security monitoring agency set up by the U.S. Agency for International Development.

Banning Motorbikes

As quickly as it began, the telephonic flurry of rings and chimes that took over Miriam’s courtyard in Niamey ceased. I heard later that one motorbike was spotted — and that the gunfire may have been shots from the local self-defense group at the rider of that moto.

To Miriam and her relatives, shooting at someone for riding a motorcycle sounds completely prudent. This mindset meshes with a parade of government policies instituted in the tri-border region and the far east of the country, near Lake Chad, where the terror group Boko Haram has been a persistent menace.

Niger and its neighbors have intermittently imposed emergency measures, including the banning of motorbikes. Local markets have also been closed because authorities say that terrorists use them to purchase supplies. There have been other restrictions on people’s movement, the purchase of fertilizer, and fishing — all in the name of counterterrorism. Violating these strictures may brand you as a terrorist or sympathizer. Your ethnicity may too. People in this compound, just like those in the Nigerien government, will tell you that while many jihadists are ethnic Peul, all Peul are not jihadists. They also say there is no ethnic component to this conflict. Peul leaders disagree. They say they’re the victims.

A week later, I’m in a different compound in another part of town to meet two men who want their stories told. As we sit in a darkened room, I ask if it’s OK to use their names; they shoot each other worried looks. “The military will come find us. They’ll say, ‘You talked to the journalist,’” said a man in a white tagelmust as his colleague in a blue turban nodded. It’s a common fear here. People are afraid of their U.S.-backed government, so while they gave me their names and those of their villages, I can only call these men “Puel community leaders.”

“The emergency measures just impoverished people. The jihadists kept their motos. They were able to purchase supplies. They eat and drink. They do whatever they want. But average people lost everything.”

“The emergency measures just impoverished people. The jihadists kept their motos. They were able to purchase supplies. They eat and drink. They do whatever they want. But average people lost everything,” the man in white explained. “There’s a 6 p.m. curfew, but it takes two days by moto to travel to the health clinic. People are dying because they can’t get treatment.” The man in blue explained that the closure of markets meant finding a car — another major expense — to drive to Mali. “So instead of paying 10,000 CFA for a sack of millet, you pay 50,000 CFA,” he said, referring to the local currency, West African CFA francs. “There’s a lot of hunger.”

Predominantly seminomadic Muslim cattle herders, ethnic Peuls across the Sahel express discontent with government neglect of their communities. Many say they have been tagged as terrorists, and the stigma has further marginalized them and encouraged abuse by government troops. “They arrest people without cause,” said the leader in white. “Peul youth laid down their arms and wanted to join the state security forces or form a militia, but the government rejected the offer.”

Hassane Boubacar, a colonel major — a rank between colonel and general — and an expert on radicalization detailed to the Nigerien prime minister’s office, agreed that socioeconomic issues are key drivers of terrorism. “The jihadists do what the state fails to do and provides services that the government fails to provide,” he said. “The people in these areas are very poor, and the jihadists have a lot of money to pay them from illegal activity, like drug trafficking.”

A recent U.N. Development Program report on terrorism in sub-Saharan Africa found much the same. Drawing on interviews with 2,200 people in Niger, Mali, Burkina Faso, and five other African nations, UNDP discovered that roughly 25 percent of voluntary recruits cited job opportunities as their primary reason for joining terror groups. Only 17 percent mentioned religion. The report found that most who joined extremist groups grew up “suffering from inter-generational socio-economic marginalization and underdevelopment.”

As a disaffected minority, the Peul have been the prime focus for recruitment by Islamist militants, even as Peuls are often victims of jihadist attacks. “They say, ‘The Peul are terrorists,’ but the terrorists terrorize us,” said the Peul community leader in the white tagelmust. “They steal our animals. They kill our family members.” At the same time, Peul are also a prime target of arrests, abuse, and attacks by Nigerien security forces.

Nearly half of those interviewed for the UNDP report said a specific event pushed them to join militant groups, with 71 percent citing human rights violations, often at the hands of state security forces. According to the report, “in most cases, state action, accompanied by a sharp escalation of human rights abuses, appears to be the prominent factor finally pushing individuals into [violent extremist] groups in Africa.”

Col. Maj. Boubacar was dismissive of reported Nigerien atrocities. “Sometimes, we’re accused of human rights violations,” he said. “But we pay a lot of attention to allegations.”

The U.S. government doesn’t agree. A State Department analysis of human rights in Niger released last month cited significant abuses, including credible reports of arbitrary and unlawful killings by the government. “For example, the armed forces were accused of summarily executing persons suspected of fighting with terrorist groups,” reads the report, which also details arbitrary detention, unjustified arrests of journalists, life-threatening prison conditions, and rampant impunity among the security forces.

In 2020, for example, Niger’s National Commission on Human Rights investigated allegations that 102 civilians had disappeared during a weeklong military operation. “There have indeed been executions of unarmed civilians and the mission discovered at least 71 bodies in six mass graves,” said Abdoulaye Seydou, the president of the Pan-African Network for Peace, Democracy, and Development, which took part in the investigation. “It is elements of the defense and security forces which are responsible for these summary and extrajudicial executions.” Witnesses told Human Rights Watch that an additional six mass graves containing 34 bodies were also uncovered nearby.

Last fall, the Nigerien military also bombed a gold mine during a counterterrorism operation. While the government claimed that only seven people died, locals said many more civilians were killed. After Seydou spoke out about it, he was charged with “publishing information likely to disturb public order” and arrested. The case was dropped, but as he attempted to leave the courthouse, Seydou was again arrested, cited for “creating false evidence to overwhelm” the Nigerien military and sent to a high-security prison.

Direct Operations

As with allies the world over, from Cameroon to Saudi Arabia, human rights violations haven’t deterred the U.S. from supporting Niger’s government. Hang around the airport in Niamey and you’ll see a parade of white faces, tattooed arms, and goatees. Waiting for flights in and out of the country, you hear talk of the trials and tribulations of Veterans Affairs medical care. When discussing their seats on the plane, it isn’t 23D but 23-Delta. “What are you teaching?” a paunchy contractor with a Southern accent and a goatee asked a younger man with an artfully groomed beard traveling with a group of Americans who, it turned out, were providing instruction on battlefield medicine.

When asked what U.S. troops were doing in Niger, U.S. Africa Command spokesperson Kelly Cahalan offered a boilerplate response: “The U.S. military is in Niger at the request of the Government of Niger and we remain committed to helping our African partners to conduct missions or operations that support and further our mutual security goals and objectives in Africa.” What are those “missions or operations”? The most famous came to light in October 2017 when ISIS fighters ambushed American troops near Tongo Tongo, killing four U.S. soldiers and wounding two others.

AFRICOM told the world that a small group of U.S. troops were providing “advice and assistance” to local counterparts. In truth, the ambushed team was working out of the town of Ouallam with a larger Nigerien force under Operation Juniper Shield, a wide-ranging regional counterterrorism effort. Until bad weather prevented it, that group was slated to support another team of American and Nigerien commandos based in Arlit — a town 700 miles northeast of the capital — attempting to kill or capture an ISIS leader as part of Obsidian Nomad II, a so-called 127e program that allows U.S. forces to use local troops as proxies.

A 2018 investigation by then-Maj. Gen. Roger Cloutier found that AFRICOM’s advise-and-assist story was a fiction. “Missions described in this report and executed by Team OUALLAM and Team ARLIT were driven by U.S. intelligence, planned entirely by U.S. forces, and directed and led by [U.S. forces]. Nigerien forces had no input in the planning process or the decision to execute the missions,” he explained. “Advise, assist, and accompany operations that Team OUALLAM and Team ARLIT were conducting … more closely resembled U.S. direct action than foreign partner-led operations aided by U.S. advice and assistance.” Direct action, to be clear, is a special ops euphemism for strikes, raids, and other offensive missions.

Cloutier wrote that U.S. commandos in Niger “are planning, directing, and executing direct action operations rather than advising Nigerien-led operations.” Is this still the case? The official answer is no. But the official answer used to be that these were “advise-and-assist” missions. It took a tragedy that couldn’t be suppressed for the truth to slip out.

Commandos, however, don’t only conduct clandestine raids. When I happened to encounter three men who said their names were Cam, Chuck, and Brock at Agadez’s Ministry of Justice headquarters, they were on a different kind of mission. Cam sported a shiny lavender dashiki-style top — they call it bazin here — with an embroidered placket and matching lavender pants, dark wraparound sunglasses, a backward black baseball cap, and a beard that would satisfy the Taliban. He said he hailed from Colorado and had been in-country almost eight months. Chuck had more conventional facial hair, wore a green Fjallraven cap, a blue Osprey Daylite shoulder sling strapped tight to his chest with one radio or satphone carabineered to it and another walkie-talkie clipped to his pocket. Brock wore a black and gray ballcap, a polo shirt and khakis, a hand-held radio clipped to the right front pocket, and had a haversack strapped to his back.

While the U.S. spends significant time and money training, advising, and assisting Nigerien troops, Americans also devote substantial resources to courting government officials and building influence with local elites.

Cam said he was on a farewell tour and had a gift for the top local prosecutor. It highlighted another facet of American efforts in Niger — one that plays out across the globe whenever Americans sit down for an awkward cup of tea with, or provide Viagra to, some local chieftain they hope to win over. While the U.S. spends significant time and money training, advising, and assisting Nigerien troops, Americans also devote substantial resources to courting government officials and building influence with local elites.

When I spoke with him recently, Mohamed’s tune had dramatically changed. He had gone from a vocal critic to an ardent believer. “In the beginning, they didn’t have anything to do with me,” he said of the U.S. military in Agadez. “Now, the Americans come here every two weeks, every month. They were here just yesterday. We exchange information about security issues,” he gushed. “I’m very pleased with the relationship.”

AFRICOM ignored questions about their relationship with Mohamed, but it seems clear that the U.S. military decided to court this formerly critical local leader. Mohamed showed me a certificate, commemorating a 2021 drone mission and bearing the logo of Special Operations Command Africa, presented to him by his American friends. But it didn’t stop with press-the-flesh attention and meaningless keepsakes. After Mohamed told the Americans about a nagging medical condition, he said that they brought him to the drone base in Agadez where he was treated by a U.S. doctor.

Drones and Hope

While the base may come up short as a surveillance and security bastion, it has had an undeniable impact. If you’re a local elite like Mohamed, the Americans apparently invite you in and provide you with free medical care. But if you’re living on the outskirts of the facility in the hard-scrabble Tadress neighborhood, it’s a different story.

To most in Tadress, Air Base 201 is a mystery. “We don’t know what they do there,” said several women in a rough-hewn compound a short distance from the outpost. The only tangible impact of the U.S. military on their lives, they told me, were the cracks that formed in their mud walls due to huge transport planes that shook their homes as they passed overhead.

Maria Laminou Garba, 27, runs a recycling collective in Tadress that pays unemployed youths to gather recyclables and subsidizes schooling for neighborhood orphans. When there were only Nigeriens at the base, Garba could make a little money selling them food. When the Americans arrived, she said she was no longer welcome. With permission from the mayor of Agadez to collect plastic in that section of Tadress, she approached the base with her young employees, hoping to gather discarded water bottles. But Garba quickly grew scared of the guards’ guns when a booming voice from a loudspeaker told them to leave.

The U.S. military touts good works in Tadress, like rebuilding a primary school. “I’ve heard about them helping, but I’ve never seen it,” said Garba. The U.S. also publicizes opportunities for locals to sell trinkets at craft bazaars at Air Base 201. “People from town get to sell stuff,” Garba told me, referring to Agadez proper. “They’re not from here.”

Garba and a local leader — the chef de quartier of Tadress, Abdullah Bil Rhite Chareyet — led me to a reservoir near the outskirts of the base where locals use the water to make mud bricks. But the site is also, they explained, a danger to children. “A 6-year-old child drowned here a few years ago,” said Garba. “Every year, someone dies here.” Last year, a 17-year-old girl became the latest victim, she and Chareyet told me.

Chareyet meets with American military personnel from time to time. They asked him to look out for suspicious activity — most notably sightings of Toyota Land Cruisers. (A Land Cruiser pickup truck apparently carried out the 2021 armed robbery on the outskirts of the base.) The Americans gave him a phone number to call in reports.

In 2021, after years of requests from the village chief for American assistance, Chareyet, Garba, and other local leaders met with a U.S. officer and his interpreter at this same spot. The American, they said, pledged to install a fence around the reservoir and post a guard, to protect local children. Chareyet showed me photos of him with the American. AFRICOM refused to comment on the man’s identity, but a U.S. contractor working at the base, who was not authorized to speak with the press, examined the images and verified that the man pictured was a civil affairs officer who had since left Niger.

Chareyet had hoped that the Americans would honor their word. But six months later, when I visited the site, there was no fence. Chareyet said the Americans had not been back. “I thought they would build the fence like they said,” he told me. Garba shook her head, adding, “The Americans gave us false hope.”

The post After Two Decades of U.S. Military Support, Terror Attacks Are Worse Than Ever in Niger appeared first on The Intercept.

Masafer Yatta, a collection of hamlets in the pastoral hills surrounding Yatta, is one of several areas across the occupied West Bank where the Israeli state has for decades forced out Palestinians and replaced them with Israeli settlers. The goal, as Israeli Prime Minister Benjamin Netanyahu stated plainly after returning to power last year, is to give the state absolute and ultimate control over what he called “all areas of the Land of Israel” —including land widely expected to one day form the territory of a Palestinian state.

The Israeli government has deployed an array of legal and policy pretexts to extend its domination of the West Bank, most notably by supporting the more than half million Israeli settlers who illegally moved there. Since a new, far-right coalition took power, Israel has been roiled by mass protests that reached an apex this week, as hundreds of thousands of Israelis took to the streets to oppose plans by Netanyahu — who is currently fighting corruption charges — to severely curtail the independence of the country’s judiciary. But the political crisis means little to Palestinians, including the 1.6 million with Israeli citizenship, who have long viewed Israel’s courts as complicit in their oppression, and the legal system many Israelis are now rushing to defend as an enabler to the regime of racial domination forced upon them.

“Palestinians know that Israel has only ever been a democracy for its Jewish citizens, and never for us,” George Bisharat and Jamil Dakwar wrote in an op-ed for Haaretz this week. “What we are witnessing today is an internal Israeli Jewish struggle over who will administer an apartheid regime over the Palestinians, not a genuine fight for democracy for all.”

Few Israelis took to the streets last May, for instance, when Israel’s highest court put an end to a decadeslong legal battle Palestinian residents of a dozen communities in Masafer Yatta had been fighting to stay on their lands — inside what Israel had unilaterally declared a “firing zone.” The proceedings followed Israel’s declaration in the 1980s of a large section of Masafer Yatta as a restricted, military area for the army to train in. Since then, Palestinians living there faced forcible expulsions, frequent home demolitions, rising settler violence, and a host of other coercive measures seeking to drive them off the land — all while illegal Israeli settlements expanded around them with no consequence. Last May, their legal battle ended when the same court whose legitimacy hundreds of thousands of Israelis are now fighting to preserve ruled definitively that there are no “legal barriers” to the planned expulsion of Palestinians from the firing zone. The court — which is Israel’s Supreme Court but rules as the High Court of Justice when deciding matters of state authority, as in the Masafer Yatta case — is made up of 15 judges. The court is being targeted by Netanyahu, who wants to change the way judges are selected as well as the laws the court can rule on, in addition to giving Parliament the power to overturn its decisions.

Last May’s ruling, the final one on the Masafer Yatta case, essentially sanctioned the forcible transfer of Palestinians from the firing zone — even as the forcible transfer of an occupied population is a form of ethnic cleansing and, under international law standards, a war crime.

Performative Law

The Masafer Yatta ruling has brought renewed international attention to this pocket of the southern West Bank and prompted widespread condemnation of Israeli actions. But it has also intensified the Israeli military’s and settlers’ joint efforts to force the nearly 1,200 Palestinians who remain in the firing zone to leave. Harassment of local residents has become a daily affair, and violent attacks by settlers are on the rise. For the Palestinians who have already lived in limbo for three decades, the court’s decision means that they may now face forcible transfer any day — even as human rights observers note that efforts to drive them out are likely going to be more insidious so as not to draw further global condemnation.

“We don’t believe we’re going to see people put on trucks and being transferred — although it could happen — because of the optics of it,” said Dror Sadot, a spokesperson for the Israeli human rights group B’Tselem, during a recent visit to the firing zone, noting that Israeli authorities did force people onto trucks in an earlier effort to evacuate the area in 1999. “Instead, what we’re seeing already, and what we think we’re going to see even more, is efforts to make their lives impossible to live. Demolitions, checkpoints, confiscating cars. They really isolate these communities and basically try to do everything they can to make them leave.”

A spokesperson for the Israel Defense Forces wrote in an email to The Intercept that “in the ruling of the Supreme Court on May 4th, 2022, the Court approved the State’s position which determined that at the time of the declaration of the area as a closed zone, the area was uninhabited” — even though dozens of families lived in the area at the time.

“In recent months dialogue has been held with the Palestinians in the area, in order to enable them to leave the closed zone in an agreed upon and independent manner,” the spokesperson added. “The training zone has great importance for training security personnel including in the use of live fire, which cannot be carried out effectively with civilians present in the area.”

In recent years, a growing number of global human rights organizations has begun to describe the Israeli state’s control of Palestinians as a form of apartheid — a parallel to South Africa that Palestinians themselves had been drawing for decades. The political backlash has been fierce, even as those reports — by Human Rights Watch, Amnesty International, but also the Harvard Law School’s International Human Rights Clinic and the Israel-based B’Tselem — have offered careful legal analysis to explain their conclusions, and referred to an established, legal definition of the crime of apartheid as defined under multiple international statutes. Left with no other recourse, Palestinians have increasingly taken their plight to the international community and international mechanisms of justice like the International Criminal Court, which includes apartheid under the crimes against humanity over which it has jurisdiction, and which in 2021 opened an investigation on the situation in Palestine.

Until now, those seeking to defend Israel’s conduct have largely done so by referring to its democratic character, including the integrity and independence of its judiciary, even as Palestinians have long argued Israel is no democracy when it comes to them.

Rabea Eghbariah, a human rights attorney and doctoral candidate at Harvard Law School who has researched legal policies pertaining to land in Israel and the West Bank, noted that the Israeli state has perfected the use of the law as an instrument to control Palestinians, shrouding its actions in a façade of legitimacy. Dispossession is often disguised as a bureaucratic matter of enforcing the law, with Israeli officials declaring homes illegal and subjecting them to demotion orders, designating land as restricted, and issuing eviction orders.

“The law serves as a tool, a technology even, to legitimate atrocities, to rationalize them, and to make them more palatable.”

“There is definitely this culture of hyper legalization and performative law,” Eghbariah told me, pointing for instance to a legal distinction Israel draws between settlements and outposts — even as it mostly treats both equally, and even as both are illegal under international law. “The whole distinction between outposts and supposedly legal settlements is absurd. But it’s part of the legitimizing force of the law to try to use this façade of rule of law, of supposedly a democratic state, that practices so-called measured violence, and that has checks and balances in place. The law serves as a tool, a technology even, to legitimate atrocities, to rationalize them, and to make them more palatable.”

The protests in Tel Aviv, many Palestinians have pointed out, are an effort to preserve rather than challenge the system that has enabled Israel’s regime of racial domination. “Now all these liberals are roaming the streets outraged because of the idea that the independence of the judiciary is going to be supposedly compromised,” Eghbariah said. “It makes perfect sense: because Israel tries to maintain and use the law in its service.”

That was well on display this week in Tel Aviv, when amid a sea of protesters waving Israeli flags, a lone man waving a Palestinian one — which Israel has banned — was quickly tackled by police and protesters.

The Firing Zone

For the Palestinians living in Masafer Yatta’s firing zone, the court’s decision sanctioning their forcible transfer has exacerbated the uncertainty and fear that has dominated their lives for generations. Nasser Nawajah, a community organizer and field researcher for B’Tselem, has been living with his family in Khirbet Susya, a cluster of homes and verdant vegetable gardens near the firing zone, since the 1980s, when the village’s families were forcibly expelled from their original homes in Susya, a few hundred meters away, which Israel had declared an archaeological site. Since then, Khirbet Susya’s residents have been living with no connection to water and electricity. When they formally applied for access to infrastructure, they were told “No, you’re illegal,” Nawajah told me, even as nearby Israeli outposts were quickly connected to infrastructure. “At the end of the day it’s just a policy to make Palestinians’ lives miserable in all kinds of ways, firing zones, declaring buildings illegal, calling land ‘state land.’ All the roads lead to making Palestinians’ lives miserable.”

“All the roads lead to making Palestinians’ lives miserable.”

For years, residents of the area have relied on ingeniousness and the solidarity of nongovernmental organizations and activists who have provided them with a microgrid of solar panels and water tanks that the army regularly confiscates and that settlers vandalize. Settlers also regularly damage olive trees, set fields on fire, uproot vegetables from gardens, and destroy Palestinian property. In Khirbet Susya, Nawajah pointed to a stone monument that settlers had ripped out, a tribute to a Palestinian baby who was burnt to death along with his family in a 2015 settler attack. Not far from the village, a patch of olive trees was shriveled dry by poison. Signs in Hebrew called on people to report international peace activists to Israeli police.

Nawajah described a combination of daily harassment, increasingly violent attacks, and a seemingly endless stream of new techniques devised by settlers, under the watch of the army, to seize ever-larger swaths of Palestinian land. Sometimes, he said, settlers fly drones over herds of sheep to scare them off course; often, they send their own sheep and livestock to graze on Palestinian crops. And a new practice was taking hold in the area, by which a lone, armed settler would set up a “pastoral outpost” on a hilltop, bringing animals to graze on the lands below — a faster and more efficient way to stake a claim on a piece of land than to set up an entire residential community. Where residential outposts are often made up of a few caravans and makeshift homes, a pastoral outpost only requires some tools, animals, and one person who, using this tactic, can significantly alter control of the land. “It’s enough to set up something like this to clear out a lot of land that belongs to Palestinians,” Nawajah said, noting that most Palestinian farmers would give up trying to reach that land for fear of being attacked.

During my visit to the South Hebron Hills, one such settler, a young man standing alone on a hilltop overseeing Palestinian crop lands, used binoculars to watch me, Nawajah, and a couple Israeli human rights observers. Then he approached us to ask about the purpose of our visit. Moments later, a “civil administration” vehicle pulled up: a quiet reminder that we were in the firing zone, where the army could choose to confiscate our car at any point. “Don’t be fooled by the word ‘civil administration,’” said Roy Yellin, B’Tselem’s director of public outreach, who was with the group that day. “It’s a part of the army that’s in charge of running the civil aspects of the life of Palestinians — but it’s the army.”

Palestinians and human rights observers stress that while the army is ubiquitous in the firing zone, it is not there to protect Palestinian land or lives: It is there to protect settlers or stand by when they attack Palestinians. In Khirbet Susya two years ago, Palestinian residents filmed a group of adult settlers playing with the children’s toys in the village playground while soldiers watched without intervening. (The IDF spokesperson wrote in reference to the playground incident that “the video that was published on social media represents only the beginning of the encounter and does not depict the rest of the incident in which the settlers were removed from the playground premises within minutes.”)

The army generally stands by and does little while settlers engage in violence, but sometimes the violence goes too far even for them. In Tuba, a Palestinian village inside the firing zone near the outpost of Ma’on, settler attacks on Palestinian children have become so frequent and violent that the army now escorts the children on their way to school and back home.

“They’re not doing anything to the settlers, they just escort the children,” noted Sadot, of B’Tselem.

“This is why when we talk about settler violence, we talk about state violence, because you can’t separate it.”

“This is why when we talk about settler violence, we talk about state violence, because you can’t separate it,” she added. “A lot of people will say, those settlers are a few bad apples, or something like that. But first of all, they are being allowed to live there even though it’s been declared an illegal outpost, and they get electricity and water, and the army protects them, and nobody’s getting charged when they are being violent. They have the backing of the state and they are all going for the same goal: to take over land from the Palestinians.”

Often the harassment and threats turn into open violence. Nawajah, who has been documenting dozens of such incidents for years, tells his neighbors to continue to report settler attacks to the army so as to create documentation of what happens — even as most Palestinians have given up reporting them because they fear retaliation and because they have come to view settlers and the army as one.

The IDF spokesperson wrote to The Intercept that soldiers are required to stop violations of the law by Israeli citizens, including by detaining them. “A Palestinian who was harmed as a result of an incident of violence or damage to his property can also file a complaint with the Israel Police,” the spokesperson added.

A day before I arrived, a Palestinian farmer was attacked by settlers with brass knuckles and hospitalized. The settlers were residents of a one-family outpost, Talia Farm, named after a South African convert to Judaism who moved to the West Bank from South Africa in the 1990s, after the end of apartheid there.

“I loved apartheid,” Yaakov Talia, the outpost’s founder, once told an Israeli journalist. “I still think that apartheid is the best thing in the world.”

Palestinian homes are demolished by Israeli forces in Area C in the village of Mufagara south of Yatta near Hebron in the occupied West Bank on Sept. 11, 2019. Photos: Hazem Bader/AFP via Getty Images

Apartheid’s Playbook

In the 1990s, the Oslo Accords, with the aim of creating a Palestinian state, divided the Israeli-occupied West Bank and the Gaza Strip into different areas. The carved-up territory would allow limited Palestinian self-governance in anticipation of an eventual state while, in a nod to Israeli security concerns, letting Israel maintain full control of much of the land. “Area A” contains the largest Palestinian cities, where 2.8 million people live under the civil and security control of the Palestinian Authority, the home-rule body and the closest thing to a sovereign government Palestinians were ever granted. “Area B” includes the areas immediately surrounding the cities, under Palestinian civil management and, in theory, joint Palestinian and Israeli security control. Then there is “Area C”: the largest swath of the West Bank. In addition to encompassing all the Israeli settlements, whether urban or rural, Area C included the pastoral and agricultural land from which Palestinians have drawn their sustenance for generations, and the economic lifeline of any future state. Covering 60 percent of what after Oslo was widely understood to be the land of a future Palestine, Area C remained under full Israeli military control, with the army frequently and increasingly making incursions into other areas as well.

Over the years, the Israeli government seized on Oslo’s unresolved parameters to deploy an intricate framework of land policies and legal justifications for taking territory that belonged to Palestinians. Perhaps the most effective tool has been the development of settlements.

The Israeli government seized on Oslo’s unresolved parameters to deploy an intricate framework of land policies and legal justifications for taking territory that belonged to Palestinians.

All Israeli settlements in the West Bank are illegal under international law. As part of the Oslo process, in order to preserve the possibility of Palestinian statehood, Israel committed not to change so-called facts on the ground. That should have meant no new settlements, but Israeli officials cited what it described as natural population growth as justification to expand existing settlements, building more neighborhoods and towns in the hills surrounding existing ones, often naming each new development with a numeral next to the name of the original settlement. In addition to those settlements, which in some cases have grown into cities fully supported by the state, more than 140 outposts have sprung up over the years. Those were built by settlers without official authorization, but while authorities occasionally issue — and rarely carry out — demolition orders against outposts, they more often provide them with electricity, water, public transportation, and army protection.

In Masafer Yatta, for instance, the rural areas surrounding Yatta have been cut off from the city by a circle of ever-expanding Israeli settlements and outposts, the latter of which are illegal not only under international law but also even under Israeli law. Yet in several cases, outposts that were built illegally were later recognized and legitimated by Israeli authorities — as is the case of Avigail, an outpost near Masafer Yatta that the Israeli government “legalized” along with several others in February, ostensibly in response to two attacks carried out by Palestinians in east Jerusalem that month.

Over the years, the settlement enterprise has turned the prospect of a viable Palestinian state into a near-impossibility by precluding both territorial integrity and access to enough land to sustain a future state’s population. Settlements, usually built on hilltops, often with unnaturally narrow and long footprints so as to create a longer barrier, have not only encroached on Palestinian land: They have also effectively cut off one Palestinian community from the other. Each settlement is also surrounded by a — usually unofficial — “security zone,” in theory a buffer between Palestinians and settlers where nobody is supposed to stand. But settlers have regularly expanded into those areas too, therefore pushing the security zone further and taking over more land.

Overall, in the West Bank, Israeli officials have confiscated more than 2 million dunmas, or nearly 800 square miles of Palestinian land, more than one-third of the West Bank — much of it the private property of Palestinians. They have done so under an array of justifications, including the designation of much of it as “state land.” The Israeli group Peace Now, which tracks the expropriation of Palestinian land, estimated that the Israeli government declared up to a quarter of the West Bank state land. B’Tselem, which also tracks Israeli land grabs, found that settlements and the roads and infrastructure that serve them have effectively encircled Palestinians in the West Bank into “165 non-contiguous ‘territorial islands’” — a fragmentation that observers have long compared to apartheid South Africa’s Bantustans.

The reference to Bantustans evokes the pockets of territory that South Africa’s apartheid government designated for Black residents, forcing their resettlement there with the goal of ultimately creating independent “homelands.” This is one of many ways in which Israel’s regime of racial domination over Palestinians has been compared to apartheid South Africa.

The references to apartheid, however, offer not only a historical comparison, but also a legal one. While the South African experience coined the term itself and popularized the concept of apartheid, the crime of apartheid has since been defined and codified in a number of international treaties, including the 1973 Apartheid Convention and the Rome Statute, the International Criminal Court’s founding document.

“Laws, policies, and statements by leading Israeli officials make plain that the objective of maintaining Jewish Israeli control over demographics, political power, and land has long guided government policy,” Human Rights Watch concluded in its 2021 report on Israeli apartheid. “In pursuit of this goal, authorities have dispossessed, confined, forcibly separated, and subjugated Palestinians by virtue of their identity to varying degrees of intensity.”

Maximum Land, Minimum Palestinians

While apartheid policies encompass a range of institutionalized discrimination practices — from restrictions on residency for non-Jews to the recent introduction of legislation that would seek the death penalty for Palestinians only — the element of racial domination that is intrinsic to the concept is particularly evident in Israeli land policies.

“They want maximum land with minimum Palestinians,” said Ori Givati, advocacy director at Breaking the Silence, a group of Israeli veterans opposed to the occupation. “They don’t want to annex tens of thousands of Palestinians because eventually they’ll have to give them citizenship.”

Givati, who served in the military in the West Bank, described a close collaboration between the state — through the military — and the ideological settlers driving the land grab in the West Bank. The two regularly worked together, he said, with representatives of the settlement movement often participating in military drills and speaking to soldiers sent to serve in the territory.

“Basically we’re seeing a system which deprives Palestinians of their lands and aims to push them away from living in Area C, into Areas A and B,” he added, during a visit to the South Hebron Hills. “And that element of using settlements in order to divide the land is very visible here.”

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In many ways Masafer Yatta is a microcosm where the dynamics playing out across the entire West Bank are magnified by the designation of the firing zone. Daily harassment of Palestinians, illegal settlement expansion, and settler violence have been growing steadily throughout the occupied territory for years. So has the number of Palestinians killed by Israeli forces — which last year reached the highest toll since the end of the Second Intifada in the early 2000s. So far, 2023 has been even worse, with Israeli raids in cities like Nablus and Jenin killing dozens, and settlers setting fire to homes and cars in a series of attacks that have been compared to “pogroms” and that were encouraged by top officials of Israel’s new fundamentalist government.

The extremism of the current Israeli government has in many ways laid bare the reality of Israel’s project of domination. As settler violence in the West Bank has reached historic records in recent months, Finance Minister Bezalel Smotrich recently called for a Palestinian village attacked by settlers to be “wiped out,” before being forced to apologize. And as protests in Israel reached a peak this week, National Security Minister Itamar Ben-Gvir, a settler once convicted of supporting an Israeli terrorist organization, worked out a deal with Netanyahu to delay the controversial judicial reforms in exchange for the establishment of a new security force that will operate under Ben-Gvir’s direct orders — a prospect that some have likened to handing the extremist minister a “private militia.”

But before the likes of Smotrich and Ben-Gvir reached the highest level of the Israeli government, the groundwork for the supremacist project they have championed had been in motion for years, advanced under more liberal Israeli governments as well — much of it unfolding with at best tepid criticism from Israel’s closest allies, including the U.S.

Across the Green Line

While Israel’s expropriation of Palestinian land is most visible in Area C of the West Bank, it is a reality also in Jerusalem, as well as inside Israel, defined as the territory of Israel before the 1967 occupation of the West Bank and east Jerusalem, even though Israel’s borders remain an unsettled matter. There, like in the occupied territories, an array of laws and legal justifications have resulted in the seizure of much of the land belonging to Palestinians who became citizens of Israel after an estimated 750,000 others were made refugees during the 1948 establishment of the state. Today, there are approximately 1.6 million Palestinians with Israeli citizenship, comprising more than 20 percent of Israel’s population.

Eghbariah, the human rights attorney and a Palestinian citizen of Israel, argued a particularly effective tool deployed by Israel has been the legal fragmentation of Palestinians themselves into different categories, with different IDs, rights, and legal frameworks applying to each. “It’s a regime of legal fragmentation that classifies some Palestinians as citizens, and some as residents of the West Bank, or Gaza, and some as residents of Jerusalem, and each of them have different legal statuses,” he told me. “It designs different tools to experiment. It’s labs of oppression and domination.”

Land grabs inside Israel are often overlooked, Eghbariah added. But there too “is dispossession, there is segregation in the ways that accessibility to resources and land is distributed,” he said.

Since 1948, for instance, officials have authorized the creation of more than 900 “Jewish localities” inside Israel, but have only granted a handful of permits for government-planned townships for Palestinians. Most of those are communities the Israeli state has created for Bedouins that it continues to displace across the Negev desert — even as those Bedouins have for years resisted forced relocation to these poverty-stricken townships.

In the Negev, the historical land of the Bedouins dating back centuries, Israel has announced plans to forcibly displace 36,000 people living in roughly 40 “unrecognized” communities, in order to expand military training areas and implement what it called “economic development” projects. In total, some 90,000 people live in unrecognized Bedouin communities in the desert, and also face an uncertain future. Adalah, an Israel-based human rights group, has been representing many of the Bedouin communities facing eviction as they fight in court for the right to stay on their land.

“The plan provides clear confirmation that Israel’s Authority for the Development and Settlement of the Bedouins in the Negev overtly discriminates against the Bedouin population,” the group wrote, referring to the government agency set up to handle Bedouin affairs — which Bedouins view as the agency tasked with their oppression. The agency, according to Adalah, views Bedouins “as an obstacle that must be removed from the landscape in order to clear a path for Jewish settlement and ‘development’.”

That dynamic is not unlike that unfolding in Masafer Yatta, even as the Bedouins targeted for displacement are Israeli citizens. For those Bedouins, who over the decades have watched the desert become urbanized and threaten their way of life, the eviction orders are a bitter irony.

“They call us invaders, they say we are trespassers in this land,” Freij Al-Hawashleh, an 86-year-old Bedouin man, told me when I visited his community, Ras Jrabah, on the outskirts of the industrial city of Dimona.

Al-Hawashleh remembers when the area was under the control of the British Mandate, before the establishment of the state of Israel. One day, after 1948, some officials came to hand the members of his community blue ID cards: their Israeli citizenship. The Bedouins stayed on their land and continued growing their crops. Then, in the early 1950s, came the first settlers; Al-Hawashleh said that the Bedouins shared water and milk with them when they arrived. “Dimona was established on our land,” he added.

Left/Top: Moussa Al-Hawamsha, a resident of Al-Bqea’ah, an unrecognized Bedouin community that is facing eviction in the Negev Desert. Right/Bottom: Freij Al-Hawashleh, a resident of the unrecognized community of Ras Jrabah, facing expulsion, has lived there since long before the nearby city of Dimona was established. Photos: Alice Speri/The Intercept

Today, Dimona is a rapidly expanding city, with construction projects underway on multiple sides. A campaign launched under the previous Israeli government offers an array of benefits to convince Jewish Israelis to move here. On the city’s main thoroughfare, a monument nods to the roots of the city: a mural with the figure of a man in Bedouin dress walking camels across a desert landscape. But that’s as far as Dimona’s recognition of its Bedouin residents will go. Al-Hawashleh’s community is one of the unrecognized Bedouin villages under eviction orders. The government wants its residents to move to Gasir as-Sirr, one of the townships it has designated for Bedouins, five miles away. When that proposal was announced, the Bedouins petitioned to stay in Dimona and presented a plan to establish their own recognized neighborhood there — but they were denied and told they could only move to towns specifically created for them.

For now, as construction has continued in the city, the Bedouins have stayed put. Feet away from to their homes, the municipality has built a large new playground for Dimona’s children, but the dozens of children living in the Bedouin village only play there late in the evenings, if nobody else is there, adhering to an unwritten rule that they are not wanted there. Still, members of the community have no plans to leave.

“If they want me to move, they can take a gun and shoot me,” said Al-Hawashleh. “I will sit here and never move.”

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The Israeli government has shrouded its policy of displacement in the language of modernization and the promise of better services. But the towns Bedouins are moved to are among Israel’s most impoverished and with poorest access to resources, with some of the country’s worst unemployment and crime rates. “The government always tries to tell the Bedouins, ‘If you want services, you need to move. If you want water, you need to move,’” Marwan Abu Frieh, a coordinator with Adalah, told me. “When that doesn’t work, they try to move them by force, by demolition orders.”

Home demolitions, he noted, are becoming increasingly common inside Israel. And as in the West Bank and east Jerusalem, Israel often forces those facing demolition orders to destroy their own homes themselves — or face hefty fines to cover the cost of the bulldozers.

“The same things that are happening in the West Bank are happening here,” Abu Frieh added, noting that the practice has deeply traumatized the Bedouin population. “The same apartheid that’s there, is here.”

Al-Bqea’ah, another of the unrecognized communities facing eviction, stands against the backdrop of Masada, one of Israel’s most iconic tourist attractions, but the state is seeking to forcibly relocate its residents to the township of Mar’it, some 20 miles away. Next to Al-Bqea’ah, an Israeli-run tourist village offers visitors rides and photos with camels. But while camels have been a part of Bedouins’ lives for centuries, it has become increasingly difficult for them to keep them, as officials have refused to recognize camels as farm animals and have denied their owners grazing rights on lands where they traditionally kept them. Officials regularly confiscate camels “trespassing” into areas declared off-limits — sometimes lifting them with cranes to transport them away. They then charge exorbitant fees to return them to their owners.

The government’s resettlement plan — in addition to having been established without consulting the Bedouins — is fundamentally at odds with their traditional lifestyle.

“You can’t take a Bedouin from the desert and move him to a town; the Bedouins need freedom,” Moussa Al-Hawamsha, an elderly resident of Al-Bqea’ah, told me. His family has been living there since 1953, when they were moved there by Israeli authorities who evicted them from their original lands near Dimona, to make room for an industrial zone. When a Jewish man came in the 1980s to set up the tourist village next door, Al-Hawamsha said, they gave him camels and helped him get established; many residents of the village still work at the tourist site. At times, they helped authorities search for hikers lost in the desert, which they know intimately.

“Now, he has a permit to stay, and we are in court,” Al-Hawamsha added, stressing that Al-Bqea’ah’s residents do not want to leave. “If they want to move us again, they should move us back to the land we came from.”

Holding Onto the Land

Sami Huraini grew up in Al-Tuwani, a village in Masafer Yatta just outside the firing zone, near a large settlement and its surrounding outposts. He was 3 years old when Israeli authorities began evicting people from the area. “When I was young, I was terrified of the army; I was kind of traumatized; when I saw the army was coming to the village, I would run,” he said. “They would come search our house, they would wake everybody up and encircle them in one place in the middle of the village and then they’d go and search all the houses.”

“They want to delete us from this land, delete our identity from this land.”

Huraini grew up in an activist family, although merely choosing not to heed to pressure to abandon one’s home is an act of resistance in this area. “As I grew up, I understood the situation, and I understood that I don’t have to run; I need to stand on the land and defend this land,” he said. “They want to delete us from this land, delete our identity from this land.”

Al-Tuwani, a smattering of homes constantly under construction — even as authorities frequently demolish them — has in recent years become a hub for global solidarity with the residents of Masafer Yatta. The village is home to international and Israeli activists whose presence offers a measure of protection against violence by settlers and the army, even as the activists have increasingly been targeted for attacks as well. “The international presence is very important for documentation purposes, the army is a little more quiet when there are internationals than when it’s Palestinians alone,” noted Huraini.

Last fall, his father was attacked and severely injured by settlers, but when the army came, they stopped his relatives from taking his father to an ambulance and arrested him instead. The older Huraini spent 10 days in jail and was only released because a 20-minute video filmed by an international activist left no doubt about the dynamics of the incident. International pressure, Huraini added, has helped stave off the demolition and eviction of other communities, such as Khan al-Ahmar. That community, a group of Bedouin villages in the central West Bank, was slated for forcible eviction a few years ago, but it remains in place largely thanks to widespread international condemnation of the Israeli plans.

Still, Huraini noted, the reliance on international support is not sustainable. During the pandemic, when Israel imposed severe travel restrictions, the residents of Masafer Yatta were left to fend for themselves. “Settler violence was crazy during the pandemic,” he said.

In 2021, the army arrested Huraini, who had begun organizing regular Friday protests, and accused him of assaulting a soldier. The IDF spokesperson said that a verdict in the case is pending. Meanwhile, every Friday morning, Huraini has to turn himself in to the military, who hold him until the afternoon. “The main goal was to stop the protests and the organizing,” he said. “They thought that by putting me in prison and giving me these charges they could stop my work and my activism.”

But Huraini and others here live by the principle of sumud, an Arabic word that translates as “steadfastness” and that has long been a cultural pillar of Palestinian resistance.

“Police and army and settlers are all working hand by hand to evict us from our land,” he said. “But despite this, we need to continue to live our life here. Despite this court decision, we have no other place to go, and we’ll remain and struggle here. Even if the eviction happens, we’ll go back, because this is our land. We’ll continue to live in our land. At some point, this is going to end.”

Many Palestinians in Masafer Yatta refer to the notion of sumud. In Khalet a-Daba’, a small village inside the firing zone that is home to more than 90 people, half of them children, Jaber Dababsi described the daily harassment residents are subjected to. In the last couple years, the village, which is powered by solar panels provided by NGOs and reliant on a network of water cisterns, saw much of its infrastructure demolished. When residents planted 12,000 trees, the army destroyed their water system, killing the plants. Soldiers also cut 500 olive trees that they claimed were planted on “state land.” Once, the military held a drill so close to the village that a large bullet pierced the roof of Dababsi’s home. The drill, with helicopters flying by the village, causing a large dust storm, “didn’t feel like real training,” he said. “It felt a little bit staged, like they were doing it for the purpose of harassment, intimidation.”

Older children in the village go to school in Al-Tuwani and often face settler intimidation on their way there. When residents built a school in Khalet a-Daba’ for the younger kids, the civil administration shut it down. The younger children began to take classes in the home of Dababsi’s brother, so the army came and demolished it. In total, he said, the army demolished his and his brother’s homes five times. Many people from the area, he added, started moving into caves: traditional dwellings in this part of the West Bank that locals are now returning to in order to avoid the constant demolitions.

“It’s not life,” said Dababsi, noting that the recent court decision only adds to the instability so many families have already faced for years. “The civil administration has a plan for us, we don’t know what it is. They can come here and shoot us and force us to leave, but this will be the only way that we will go: if they kill us.”

Clowns and Cactuses

On a cold, sunny afternoon, earlier this year, a handful of Palestinian farmers — surrounded by twice as many children and a group of British, German, and Israeli activists — unloaded dozens of cactus plants wrapped in black plastic and distributed them across a patch of shrubby land where they would plant them for their animals to graze on. The Palestinians were residents of Jawia, in Masafer Yatta. This was their land, but it had become increasingly dangerous for them to go there alone.

Just before I arrived, a group of soldiers had come to the field and loaded half the cactuses into their jeep. The activists on the scene said the army left without taking the remaining cactuses after there seemed to be a disagreement between soldiers about what justification to cite for taking them.

As the group returned to work with the remaining plants, a few men watched with binoculars from a jeep parked on a hill. The Palestinians and international activists drank coffee and an Israeli woman dressed as a clown in army uniform helped the children take the cactuses to their planting spots. The men on the hill were in plainclothes and appeared to be settlers, but on the road atop the hill, a line of soldiers in uniform also monitored the scene. Standoffs like these, the Palestinians in the field told me, would sometimes last hours and other times erupt into violence. The presence of international activists reduced the risk of being attacked while farming their lands.

The farmers knew that if the remaining cactuses were not planted, they would be stolen by the settlers. If they were planted, there was still a chance the settlers would come and rip them out of the ground. But today, the Palestinians would plant the cactuses and hold onto their land.

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