Subscribe to the Intercepted podcast on Apple Podcasts, Google Play, Stitcher, Radio Public, and other platforms. New to podcasting? Click here.
As all eyes are on the White House, struggles against oppression play out across the globe. This week on Intercepted: Jeremy Scahill is back. Well, sort of. He passes the reins over to Intercepted’s producers. A recent report from Airwars investigates the incredibly thin media coverage of civilian harm during the U.S. war against the Islamic State. The author of that report, investigative researcher Alexa O’Brien, shares her findings with associate producer Elise Swain. Lead producer Jack D’Isidoro interviews Wilfred Chan, who dives deep into the pro-democracy uprising in Hong Kong and explores the protesters’ demands. The Intercept’s Jordan Smith discusses with producer Laura Flynn the first abortion case before the Supreme Court since Donald Trump’s new appointments. They analyze the latest in the war against women’s reproductive rights.
Matt Gaetz: What we see in this impeachment is a kangaroo court, and Chairman Schiff is acting like a malicious Captain Kangaroo.
TV Announcer: Something new this morning. You’re invited to wake up with Captain Kangaroo, next.
Captain Kangeroo TV series: Good morning, captain.
Donald J. Trump: Good morning.
CK: Good morning, captain.
DJT: Good morning.
CK: Good morning, captain.
DJT: Good morning.
CK: Good morning, captain.
DJT: Good morning.
[“Good Morning, Captain” plays.]
Captain Kangaroo: What’s going on around here? President of the United States? I can’t believe it. I have to talk to you. Whatever you’re doing, come here please.
DJT: As the President of the United States, I, we, all together, you. I think he’s having some some kind of a breakdown.
CK: It certainly is. What’s this nonsense about you running for president?
DJT: I was told by a top general, maybe the top of them all, you want a subpoena? Here you go, take ’em! Like they’re cookies.
CK: Yeah, that means you’re not old enough to be president.
CK: Take my word for it.
DJT: This is a scam.
CK: How come no matter where it starts, it always ends?
Jeremy Scahill: This is Intercepted. I’m Jeremy Scahill, coming to you from the offices of The Intercept in New York City. And this is episode 102 of Intercepted.
Hey everyone, I’m back. Well, sort of. Next week, I will be back to fully hosting this show. But for today, I want to apologize to the listeners of this program for being absent the past few weeks and I wanted to share with you why I was gone. We recently had an unfortunate medical emergency in my family and I had to be there to support a loved one in a tough situation. I’ve spent the past weeks in and out of a hospital and being an advocate. I do not wish upon anyone to be subjected to the bureaucracy of U.S. health care. The fights just to get adequate care, the battles with insurance companies and medical institutions can just suck the life out of you.
These past few weeks I have seen so clearly how awful it is to find yourself at the mercy of our healthcare system. Anyone who ends up in the hospital needs a full time advocate to make sure that you get decent care, they need someone to keep the bureaucracy at bay while they focus on their health and their recovery. Sometimes they need to be there just to make sure a patient gets to use the bathroom or gets their correct medication. It shouldn’t be this way in the United States or anywhere else. In my family, we’re fortunate to have decent insurance, employer-based insurance. Even relatively routine hospital situations are potentially bankrupting events for millions of people in this country, particularly those with bad insurance plans or inadequate insurance. The bills you receive when medical disaster hits are harrowing. Just determining what’s in-network or out of network and trying to limit the financial impact, that’s a full time job for someone and often that job is left to the patient who already is suffering or you’re just going to get hit with massive bills a few weeks later.
In coming episodes, I want to delve into these issues at greater length and depth, but our system is a total disgrace. Even if you have great doctors and nurses and support staff in a hospital, it’s a constant battle and it requires having a full time advocate in your corner and at your bed. I was so fortunate that I was able to do that and to be there for my loved one. I am fortunate that my employer supported me taking this time. Many Americans don’t have that choice and they are left to fend for themselves in the battles with the healthcare bureaucracy, while simultaneously trying to survive and endure whatever medical misfortune landed them in the hospital.
Our system has an immediate ricochet impact that damages families, places extreme stress on children, spouses, extended family. My heart goes out to anyone who suffers a medical emergency in this country and to their loved ones and family members. Having an accident or an unforeseen medical emergency should not immediately result in the financial and bureaucratic nightmare that it so often does. This scandal has to end.
I want to thank all of my colleagues who have stepped up these past weeks on this show, particularly my hard working producers. I also want to thank Betsy Reed and Ryan Grim for steering the ship through episodes 100 and 101. Next week, we’re going to be back to normal. For today’s show, I handed the controls over to my producers and they have put together a strong episode looking at the civilian death toll in the battle against ISIS, the uprising in Hong Kong, and the court battles over women’s reproductive health. Thank you all for your patience these weeks and I will be back with you all next week. Now, on with the show.
Elise Swain: Hey this is Elise Swain, associate producer on this show.
DJT: I defeated the caliphate, ISIS and now we have thousands of prisoners of war, ISIS fighters that are prisoners of war. And we’re asking the countries from which they came — from Europe. We’re asking them to take back these prisoners of war.
ES: In a surprise Sunday night statement, the White House announced that Turkey will be allowed to “move forward with its long planned operation into Northern Syria.” The statement also took credit for defeating ISIS and announced that “Turkey will now be responsible for all ISIS fighters in the area captured over the past two years.”
Brian Kilmead: A disastrous series of events. I hope the president will rethink this.
Steve Doocy: I think the president is doing exactly what he wants to because he’s made from the get-go —
BK: To release ISIS fighters?
SD: — Campaign promise to end —
BK: And abandon our allies? That’s a campaign promise? Abandon the people that got the caliphate destroyed?
ES: So, this was explosive. Donald Trump is being accused across the aisle of abandoning and betraying the Kurds in Northern Syria, leaving the area more destabilized and facing the threat of an ISIS resurgence. Here’s Trump defending his position:
Reporter: Can you guarantee their safety?
DJT: Well, we’re going to try. If you look at some of the Kurds, as you know, that’s a natural enemy of Turkey. It’s specifically, as I said, I mean, they have natural enemies. They’ve been fighting each other for, somebody said today, hundreds of years. I mean, one historian said they’ve been fighting each other for hundreds of years.
ES: Meanwhile in neighboring Iraq, weeks of anti-government protests were met violence from security forces that left more than 100 dead, and thousands more injured.
The U.S. has played a long and brutal role in the destabilization of both Iraq and Syria. It’s critical now that we don’t fall again into immediate historical revisionism. And it’s critical that the media is diligent in holding this government to account. And in large part, that hasn’t happened in the continuing war against ISIS. A new report from Airwars has confirmed what we sensed was true — that coverage of civilian harm was found to be largely absent during key periods of the conflict.
Airwars is a non-profit organization and they’ve become a key resource in monitoring civilian deaths. They commissioned our next guest to investigate how the media handled reporting of civilian harm in this major conflict against the so-called Islamic State — a conflict that remains far from over.
The author of that report, Alexa O’Brien, joins me now.
Alexa O’Brien, welcome back to Intercepted.
Alexa O’Brien: Thanks for having me.
ES: So I wanted to begin by asking you about this investigation for Airwars. The report is called “U.S. Media Coverage of Civilian Harm and the War Against So-Called Islamic State.” So just give an introduction to that study and what kinds of questions you were looking to answer.
AO: So Airwars approached me about eight or nine months ago, and they had had anecdotal evidence — because obviously, they monitor international military conflicts — that the coverage in the U.S. had been spotty. And so the questions that they presented to me were what empirically has US media coverage of the subject of civilian harm in Iraq and Syria been like? And then why?
ES: Let’s just give an overview from this report just how many civilian deaths we’re actually talking about. According to your report, local civilians allege that up to 29,000 were killed.
AO: Right and 7,000, around 7,000 have been estimated by Airwars to be credible.
ES: And the U.S. government is only confirming 1,302. So, what’s going on there?
AO: What journalists told me in the course of interviews for this particular report and speaking to subject matter experts is there’s a particular methodology that the U.S. military uses to corroborate civilian casualties that result from international actions and essentially, one of that is reporting by credible news sources. And so if there isn’t, you know, enough coverage of civilian harm, the military essentially has a harder time confirming things. And so therefore, that’s another sort of key point of why media coverage of this issue is important.
ES: One of the more specific examples that you give of there not being any coverage of civilian harm was actually in January and February of 2017 and that’s when Donald Trump was elected. So talk about that moment in media history.
AB: Yeah, so we actually studied all the articles of the five major U.S. newspapers during two key six-month periods of the war. So why would there be no coverage, you know, especially during one of the starkest periods of combat? And, you know, qualitatively talking to other journalists. I mean, some of the reasons given were the fact that, you know, Donald Trump took office in January of 2017.
DJT: I, Donald John Trump, do solemnly swear —
John Roberts: That I will faithfully execute —
DJT: That I will faithfully execute —
JR: The Office of President of the United States.
DJT: The Office of President of the United States.
AB: And so that’s, you know, one potential reason why coverage was as it was. Journalists reflected to me in interviews as well, that they found that this tiny space given to civilian harm was actually, you know, shrinking because of the unlimited bandwidth the president has and takes up in the U.S. media news cycle.
ES: So it may be interesting for people who are not working in media to understand how reporting is done overall on civilian harm.
AB: One of the sort of big ideas that struck me in the course of doing these two major studies — one on the newspapers, another on Pentagon press briefings and talking to, you know, tens of journalists about it, who covered this issue specifically for the you know, the major papers of record the broadcast channels, etcetera — is how, in a certain sense, we’re conducting a airpower dominated conflict, and the coverage is also somewhat air-powered to meaning to say it’s remote.
So, it’s a very remote type of coverage. I don’t mean to at all diminish the incredible work that has been done on civilian harm. And we’ve outlined journalists who, despite all of the challenges have been able to cover this issue. But those efforts are largely siloed and fragmented. And they’re largely self driven. So you know, one of the great things about this project for me is: I got to talk to so many veteran war correspondents, and they felt that the accountability beat was missing. The kind of accountability beat that is more than body counts, some of them even referred to how the body count issue is somewhat problematic, because it doesn’t truly convey to the American public the real cost of war.
ES: You know, I got the sense that when we’re talking about civilian harm, we’re actually talking about those who died because there’s not a lot of quantitative data on things like amputations, you know, birth defects, those suffering from PTSD from the conflicts. You know, those are ongoing kind of costs of war that really have escaped this.
AB: Yeah, I would ask people questions about why things weren’t being covered. And one of the presumptions by editors is that well, the public isn’t really interested in it. There’s a pushback that was also given on that. Some people suggested that part of the reason why the public is sort of used is because the coverage itself has to impart a level of humanity for it to be interesting. One of the interesting sort of suggestions about how to better improve civilian harm coverage was covering war from the perspective of women, you know, which is obviously a very central kind of component of military studies or people, women in war.
I think that with regards to just the question that you asked with the void of coverage, people might not care, let’s say about civilian harm. Let’s say you have an American citizen who doesn’t care about it. The problem with that particular posture though, from this perspective is that the void actually can be manipulated by U.S. adversaries too. So when you don’t cover an issue, when the media itself isn’t fully able to engage on the ground to witness things, you start to have an opportunity for adversaries to exploit that space. You also, you know, potentially could have the military distorts it as well. So it’s very hard to sort of know what’s actually happening.
ES: You know, and the other thing that is maybe unique to this conflict is that the Islamic State had its own propaganda arm. They were putting out videos. They were putting out content, and they were targeting journalists specifically, right? You know, we had these kind of grotesque, brutal murders of you know, James Foley, for example. And when that happened, it was almost like a switch got flipped. If you watched cable news during that time, talking about you know, they’re media savvy like we’ve never seen before.
Greta Van Susteren: So, how is ISIS combining vicious murders with social media savvy like we’ve never seen before?
ES: Saying that they’re coming imminently into the United States.
Good Morning America: Also breaking overnight high alert: The new warning about the terror group, ISIS and why it’s an imminent threat to every American. As we also learn new details this morning about James Foley’s captors.
ES: There was a hysteria around ISIS that I think speaks directly to maybe there was burnout from the general population.
AO: I’ll push back on that a bit, in this sense. But I think what you’re raising… is certainly a prominent view. But speaking to your characterization of news media coverage and propaganda from ISIS, what’s interesting is it comes back to this idea of ground truth, right? And being able to have the media vet sort of what is real, and not even just vet what’s real, but also to set up clarity around making good judgments about how to deal with an adversary, and a, you know, non-state actor who is committing war crimes.
So, one of the most interesting interviews I had were with broadcast journalists and what they reflected was throughout the whole conflict — because there’s a decline of foreign bureaus across the board and broadcasters in particular, they rely on vertical video. So their whole kind of concept of what’s happening is also coming out of social media. And so this whole information space that Airwars came up in and the vital role that Airwars plays, like in the media environment with regards to this issue is that it’s able to credibly vet these reports coming out of the battlefield, you know, which is otherwise chaos.
ES: Well, and I mean, that was the issue was when they would do any segment on ISIS, you know, inherently you need a visual, and so the video that they were showing was not from someone on the ground. It was the ISIS provided tapes of them in the trucks, you know, waving the black flag. And I think [that was] dehumanizing to an entire population.
AO: It’s really, really, really interesting. No, I think you’re raising a good point. I didn’t do an analysis of like ISIS propaganda and its appearance, so it’s hard for me to sort of reflect. You know, in my confidential interviews with people at the broadcast networks, there’s a great line that’s, you know, cited in the report. At one point, the floor editors were like walking up and down going “We haven’t even covered Syria,” you know, and, “Oh, my God, we need to cover Syria. Other people are covering Syria.” So there was definitely a missed opportunity, but hopefully, lessons learned for, you know, what broadcasters can do and also what they have to prepare for because these airpower dominated conflicts are not going to go away. And so, the information environment is going to increasingly become much more difficult to assess without understanding the possibility of propaganda, deception, etc, especially with visual images.
ES: So talk about the reliance on open source information during this time.
AO: Yeah, journalists really reflected how much they relied on organizations like Airwars, and just open source information to properly report. So even field reporters who were regarded by almost everyone that we spoke to as key to war reporting, and specifically civilian harm reporting, even when they’re in the region, they don’t necessarily get to be on the battlefield. So they’re also reporting sometimes remotely in the region too and what they rely on is open source information. And so training, like one of the recommendations that the report suggests is that media organizations get training in how to collect and vet you know, information, open source information, how to properly analyze it.
And in terms of like, just what open source is doing to news media itself, and war reporting — because of this reliance on digital and on vertical video and all these kinds of trends and changes that are happening in newsrooms, especially in broadcast and you could see it to some degree at the papers of record — it’s really important that reporters also feel that they have a place to get trained in things like security with regards to sources in hostile territories. I can’t tell you how many journalists especially freelancers said to me they have seen unethical behavior on the part of reporters. You know, reporters do need to understand how to handle people who have been traumatized by war, people who are victims of rape, people who’ve had their families killed. You can’t just sort of jump in the area and then stick a microphone or tape recorder in somebody’s face and ask them a bunch of questions like sometimes you really need the resources to sort of develop relationships with communities or with sources to sort of give a broader picture that would be interesting to the American public as well.
ES: In March of this year, Trump revoked a Obama-era disclosure requirement. The New York Times headline read, “Trump revokes Obama era rule on disclosing civilian casualties from U.S. airstrikes outside war zones.” Your report now focused on war zones — Iraq and Syria — but respond to this issue of even more off-the-book strikes that are happening in the dark across an undeclared global battlefield.
AO: You know, the problem with that particular revocation is if you don’t have a news media who’s able to sort of hound out that issue, it becomes even more dangerous. I’m going to be really honest with you. I think that the deeply problematic issues that you or Jeremy have, you know, raised in the course of certainly Jeremy’s work or you’re raising in this particular interview are absolutely critical and key. It’s a larger discussion also about how to handle at this point in the game — not the day after 9/11 but where we are now — how to handle the kinds of threats that the U.S. does face or U.S. interests or allies do face from extremists.
ES: Well, you mentioned at one point in the report that the U.S. government was doing a better job of self-reporting incidents.
AO: The military is very much, you know, interested in engaging on this issue. The military has always wanted to manage the message in war, because obviously, that’s part of their, you know, controlling the information space. I don’t think it’s evil that the U.S. military tries to manage the message. It’s harder, though, when it comes to the U.S. military being accountable to the public, and also to the international community with regards to laws of war and the like. With regards to Article Two and the revocation of reporting on CIA and JSOC strikes, I feel like that’s a very much a policy issue. This president seems to take a very particular view of his powers under Article Two. And certainly that’s a much bigger discussion.
ES: Well, you know, there’s a lot happening under Trump that the Washington D.C. shit show is distracting everyone from. You know, these are the more quiet issues that we’re talking about at the same time as impeachment probes are happening.
AO: I do believe that there’s a frenzy going on. Trump does create a vortex of attention. He’s a demagogue. And the problem with demagogues in liberal democracy is that they don’t have any ideas. Their only idea is love from the people. And you know, this has been something that’s been around since the beginning of politics. And that’s why Trump is very dangerous as a president. You know, I’ve had to sort of break — I mean, anybody who knows me, certainly since covering Manning, I definitely voiced my opinion on things. But I think though, as a whole, you know, maintaining an analytic temperament is really important to and rigor in one’s work is really important to the credibility of one’s work. And it’s really hard to do that with this president.
So, as it relates to this particular issue — and I speak for myself. I don’t speak for Airwars. As it relates to this specific issue, I do also understand why people are freaking out. And why it’s very hard to take one’s attention away from this particular office holder and put it on to all the critical issues that unfortunately, during this key period of time from climate change to obviously, transnational organized crime, political corruption, it’s very hard to focus on those kinds of things, because we have such an unethical leader.
ES: All right, we’re going to leave it there. Alexa O’Brien, thank you so much.
AO: Thanks for having me.
ES: Alexa O’Brien is an investigative researcher, analyst, and writer focused on intelligence and national security. Her report for Airwars is called “U.S. Media Coverage of Civilian Harm and the War Against So-called Islamic State.”
Jack D’Isidoro: I’m Jack D’Isidoro, the lead producer for Intercepted.
In the 22 years since Hong Kong formally lost its status as a British Colony and became a special administrative region of the People’s Republic of China, it has existed in a kind of in between space — a conduit of sorts for Beijing’s monolithic authoritarianism to interact with the world of western capitalism and globalism.
It’s the principle of “One country, two systems.” You know, that Hongkongers can enjoy a certain semi-autonomy and civil liberties, while remaining under the sovereignty of mainland China.
But this guise for democracy is rapidly failing, and Hong Kong is now on the brink.
[Protesters chanting and singing.]
Over the past four months, millions of Hongkongers have taken to the streets to protest an extradition bill that would grant Beijing even more control over Hong Kong, further eroding any future Hongkongers might have for self determination.
To get a sense of the capitalist authoritarian violence Hongkongers are up against, and the kind of future they are fighting for, I’m joined by Wilfred Chan, a writer and editor who is part of the Lausan Collective. It’s an English-language volunteer, independent platform that is trying to bridge the Hong Kong struggle with the international left. He joins me now. Wilfred Chan, welcome to Intercepted.
Wilfred Chan: Thank you.
JD: How did Hong Kong get to this point?
WC: The protests this time around started off from a very controversial extradition bill, which would have exposed Hongkongers to China’s legal system, but to really explain how we got to this point you have to take a wider historical lens.
Like any colony, there have been uprisings against the colonial regime and in Hong Kong the history of dissent and unrest dates back 100 years or more. Starting from the people who resisted the initial invasion of the British colonizers including the mass movements in, for example, 1922, in which there was a seaman’s strike. Laborers protested for higher wages, leading eventually to a general strike, which paralyzed many parts of the city in ways that foreshadow what’s happening today. And that’s when you saw the British colonial regime begin to think seriously about how to keep control and keep these things from getting out of hand.
1922 was the year that the British regime created the Emergency Regulations Ordinance, which is basically a blank check for the government to suspend civil rights, suspend all sorts of freedoms and do whatever it needs to to crush dissent. That resurfaced in 1967, what people refer to as the Leftist Riots.
Newscaster: Week-long street demonstrations swept up by pro-Communist mobs take British Government House as that target. Posters demand the governor’s resignation. Thousands of Chinese shouting Maoist slogans urge an end to British rule and the crown colony. The inevitable result, violence.
WC: A pro-Communist, anti-British colonialism uprising, which was quite violent in nature. There were bombs. It was pretty bloody.
Newscaster: The mobs battle police, throwing stones, bottles, anything. Both rioters and police were injured. The retaliation was swift and effective. Tear gas and riot guns loaded with wooden bullets dispersed the crowd.
WC: That’s when the British regime again used the Emergency Regulations Ordinance to crush the protest by force.
Newscaster: Most of the hoodlums were youths. They tore up a Union Jack, smashed windows and overturned a car, setting it on fire. A British delegation is probing the current crisis.
JD: 2014 things sort of ended similarly, where it was just crushed by massive force of the state, the police.
WC: That’s right. Another mass uprising — the 2014 Umbrella Movement — students and their allies occupied the streets of Hong Kong in the central business district.
WC: They were asking for universal suffrage so that Hongkongers could choose their own chief executive which is what the leader is called in Hong Kong. The protests which lasted 79 days was ultimately resolved not by a political solution, but by a massive police operation.
WC: And the fact that none of the demands were met really spoke to this new tendency of authoritarianism which was beginning to become apparent in Hong Kong. And what protesters are now on the streets fighting for includes democracy, but could really just be described as a last ditch effort to preserve any shred of autonomy for Hong Kong from the control of the Beijing government.
JD: And because none of those demands are met, you have sort of this latency, right, of all these things going on under the surface exploding into this most recent expression of protest. They have their own six demands, the first of which is the full withdrawal of the extradition bill. Can you just explain what that bill is and why it was so controversial and why it set off these protests?
WC: Hongkongers are extremely sensitive to any perceived incursions against the limited autonomy that they currently enjoy under this special administrative region system, which is called “One country, two systems.” Hong Kong has many of the trappings of a sovereign state, but it doesn’t have self determination. It doesn’t have free elections. And Hongkongers rightfully want to protect whatever autonomy they have, with the hope that it can be built upon consolidated and improved in the future. The reason why the extradition bill — which on its face seems to be an issue of immigration policy or foreign policy — was so intolerable to Hongkongers is because the legal separation between the Hong Kong Special Administrative Region from the Beijing government is precious to Hongkongers. This is one of the last defenses they have against the incursion of the Chinese government. So, the fact that this extradition bill could potentially expose ordinary Hongkongers to all sorts of prosecution to the opaque legal system in China. And this is really scary if you’re someone who maybe is a young person in Hong Kong, likes to go online and maybe speak your mind, just as young people around the world do.
JD: Right, and I mean, it would basically give Beijing the authority to like render people from Hong Kong should it choose.
WC: Exactly. And when you think about the fact that a Chinese novelist, was recently sentenced to 10 years in prison for writing queer erotica in China, you get a sense of how dangerous this bill really is. And you know, Hong Kong was a place where you can still talk openly about queer sexuality. You can still challenge the government. You can still say all sorts of things, express yourself, and who knows what Beijing would define as a crime that would warrant seven or more years in prison. That’s why you see such a universal sense of resistance in Hong Kong against this bill. And that’s what led to 2 million people out of a population of 7.4 million coming out on the streets at once and standing up against this bill.
JD: So Carrie Lam, she’s sort of a proxy for Beijing in this situation and the protests have forced her to retreat on the bill to the point where she says that she’s withdrawn it. Why aren’t her words sufficient?
WC: Carrie Lam who is the chief executive of Hong Kong, she was refusing to use the word withdraw. And so she would say different things like —
Carrie Lam: The bill is dead.
WC: But she wouldn’t use that key term. And that was because under Hong Kong’s legislative system, something that isn’t fully withdrawn, could resurface and quickly get passed if need be. Now, that changed a few weeks ago, and Carrie Lam actually did come out and agree to the withdrawal of the bill.
CL [translated to English]: The government will formally withdraw the bill in order to fully allay public concerns.
WC: The problem is in the months that she was refusing to withdraw the bill and sending police over and over to crush the protests, which initially were completely peaceful, she pissed off a lot of Hongkongers. What this protest has turned into is not just a movement against this extradition bill, but really a protest against police brutality itself, and increasingly against state violence itself. So that’s why you see four more demands on top of the initial demand.
JD: So the second demand is the retracting of the classification of protests as “riots.” Why is that important?
WC: This speaks to the history of policing in Hong Kong, of the state de-legitimizing legitimate grievances by calling them riots, by focusing on the destruction of property and framing this as a threat against the ruling property class. Protesters are also aware that rioting, particularly in Hong Kong carries a sentence of up to 10 years in prison. And just to underscore how horrific this is, there have been protesters arrested as young as 12, as young as 10 years old in these days on the streets.
JD: The third demand is an independent inquiry into police brutality. Describe the kind of violence that has been committed by the police.
WC: There’s been thousands of tear gas grenades fired against protesters. There’s been a cannon deployed that shoots pepper water with blue ink which both burns your skin and is impossible to remove. So that if you’re tagged with this blue ink that they can then arrest you. There’s been countless beatings, extremely violent arrests of unarmed protesters, and recently there’s been live rounds fired at protesters, including one which struck a teenage protester in the chest leaving him in critical condition.
[Shots fired and shouting.]
WC: That teenager is being charged with rioting which again carries a 10 year prison sentence, even as he recovers in the hospital. At this point, you’re starting to see police go after just about everyone and anyone who’s even in the vicinity of the protests. The police in Hong Kong have really run amuck. And they’re completely unaccountable at this point. Now, I think it’s important to understand that the police are here guarding the interests of the ruling class, the property class, people in control of capital. And in Hong Kong, the capital interests want to transition from the British system to China’s state led authoritarian capitalism, and they’re crushing the people who are standing up against that transition. And when you look at the long history of colonial policing in Hong Kong in which police were deployed again and again to crush labor uprisings, to crush anytime that people were standing up for working class interests, you get a real sense of what they’re here for.
CL: Please allow me to reiterate that if we are so proud of Hong Kong being a city that upholds and safeguards the rule of law, one important component of the rule of law is a law abiding population. We need the people of Hong Kong to respect the law.
JD: So on Friday, Carrie Lam imposed the Emergency Regulations Ordinance which hasn’t been used in 50 years. It basically claims to put a ban on wearing masks, but it potentially would do much more than that. Can you explain what it would do?
WC: It basically empowers the leader of Hong Kong, whether that’s the colonial governor or the present day chief executive, to make any law necessary to restore order in the city. So far what Carrie Lam has claimed is that this is just being used to institute a ban on wearing face masks. Now, this is completely untrue because the Emergency Regulations Ordinance empowers her to arrest anyone at will, seize assets, deport anyone at will, suspend freedom of speech, suspend the free press. Essentially she could do whatever she wants under this law. Now, there’s also the fact that this law absolutely violates Hong Kong’s Bill of Rights. So you know, what Hong Kong calls the rule of law is really rule by law. The Hong Kong government’s going to use whatever legalistic term to justify its authoritarianism.
JD: The sixth demand is to disband the Hong Kong police force — get rid of the cops all together. How did this demand come about?
WC: After repeated and escalating incidents of police brutality, which continued to top each prior one from the police allowing innocent passengers to be beaten onboard a train in late July, to now the shooting of a teenage protester in the chest on October 1, which is China’s National Day, you have this realization that unless we get rid of the cops, nothing’s going to change. If Carrie Lam is only in power because she has the cops behind her, then the way to solve this problem is to get rid of the cops. And what was formerly a fantastical idea has now become a relatively mainstream sentiment that something needs to be done about this completely unaccountable marauding group of armed thugs in uniform who are making life hell for ordinary Hongkongers. What protesters have chosen currently is to demand the disbanding of the Hong Kong Police.
JD: Is there concern that the Chinese military, you know, the People’s Liberation Army, would they ever intervene?
WC: That’s always a concern. That was a concern in 2014. And it’s one of the first things that I think people think about when they think about the Hong Kong protests is, “Wow, they’re really asking for another Tiananmen.” And I think it’s important to understand why Beijing is actually unwilling to do that. They’re not allowing Hong Kong to enjoy its limited autonomy because they’re nice people. The fact that there is this capitalistic loophole on the southeast corner of mainland China lets them participate in all sorts of valuable ways in the global economy. So Beijing knows that as soon as they roll in the tanks, it’s over. At that point, Hong Kong ceases to be a separate entity at that point, Hong Kong is just another Chinese city, and under the logic of global capitalism, you know, that would be shooting themselves in the foot.
JD: And it is sort of capitalism that is driving this authoritarian violence. I mean, let’s talk about that. It’s not just the extradition bill that is making people go to the streets. It’s you know, the fact that one in five people in Hong Kong live below the poverty line. You know, there’s mass inequality. So how is this inequality in Hong Kong, in the inability of neoliberalism to solve its problems fueled, you know, the unrest?
WC: If you agree with the protesters that the primary problem is this paradoxical governance in which Hong Kong enjoys limited autonomy without self determination, then you have to think about the sources of that paradox. And it’s really about Hong Kong’s position as an interface between Western neoliberalism and China’s ascendant authoritarian state capitalism. It’s really a compromise that answers the needs of both. You know, it’s a very colonial logic in that Hong Kong is structured for the interest of faraway elites. You start to understand why Hong Kong is stuck in this situation. And so, you have to point to all of these reasons when you’re trying to figure out how to move forward.
JD: There’s a common saying among the protesters, loosely translated, it says “We alone can save our Hong Kong,” but you actually suggest something otherwise — that Hongkongers join, you know, an international progressive front, something like Bernie Sanders would describe. What would that look like for Hong Kong?
WC: Well, it’s difficult for a lot of people to imagine. The reason why it’s hard to mount a popular anti-capitalist critique in Hong Kong is because even ordinary folks understand that the reason for Hong Kong’s existence is to be a tool of global capitalism. This is unfortunate, but it’s the reality. Once you challenge capitalism, it’s like Hong Kong doesn’t even have a reason to be what it is. Why not just subsume it into China at that point? So there’s a real reluctance to sort of undercut your own rationale for being. I think this is understandable because people are facing incredible amounts of violence right now. And in terms of the logic of survival in the short term, that’s going to be what you’re going to ask for.
But we should also see that as long as you stay within these exploitative logics in which you continue to justify Hong Kong’s existence, purely in terms of its usefulness to capital, a lot of the more fundamental problems such as the deep inequality in Hong Kong, the continued exploitation of the working class, the marginalization of minorities, is going to continue to happen. And we ultimately need a solution that’s going to be able to address that problem in addition to the political situation at hand.
JD: Wilfred Chan, thank you so much for joining us.
JD: Wilfred Chan is a writer and editor based in New York. You can find his work online in the Lausan Collective at Lausan.hk. He’s on twitter @WilfredChan
Laura Flynn: I’m Laura Flynn, producer on Intercepted, here to talk to you today about the first abortion case to reach the new conservative majority Supreme Court.
WAFB: It’s a debate that could eventually close Louisiana’s three abortion clinics but not before the Supreme Court has a say.
LF: So, back in February, Chief Justice John Roberts joined the Supreme Courts’ more liberal judges in a 5-4 majority vote to block a restrictive abortion law in Lousiana.
Identical to a Texas law overturned by the Supreme Court in 2016, the Louisiana law requires abortion doctors to have admitting privileges at nearby hospitals. Before it was overturned, the admitting privileges law had already had the effect of closing about half of the 41 abortion clinics in Texas, according to The Texas Tribune.
The 5th Circuit Court that upheld the Texas law before the Supreme Court found it unconstitutional, now refuses to adhere to that precedent in the case of Louisiana. So here we are again, in what could be a test to see if the court will completely shift just because there are now two new more conservative justices on the bench: Neil Gorsuch and Brett Kavanaugh.
Gorsuch and Kavanaugh were among the four justices to vote in favor of allowing the Louisiana law to take effect. But Justice Kavanaugh was the only one to write a four-page dissent siding with the state’s argument that the law wouldn’t affect the availability of abortions.
Jordan Smith: If you read that dissent, it is a hot mess. It is intellectually dishonest. It omits incredibly important facts to the case. And it’s just really a kind of terrifying window into his brain and how his legal reasoning around this kind of space.
LF: That’s Intercept’s investigative journalist Jordan Smith. She joins me now to discuss the details of the case and the state of abortion rights today. Welcome back to Intercepted, Jordan.
JS: Thanks for having me.
LF: So on Friday, the Supreme Court said it will review a restrictive Louisiana abortion law, what are the details of the case that will be before the Supreme Court in the coming months?
JS: So the case that issue is called June Medical Services v. Gee and it involves a provision that Louisiana passed in 2014 that requires all doctors who perform abortions to have hospital admitting privileges within about 30 miles, I think it is, of every clinic where they practice. The stated reason for this is that it’s supposedly a sort of continuity of care situation, right. So if a patient has some sort of complication, they can easily be transferred to a hospital. And that’s the fiction on which this is all built because there are some notable things about that. Number one, abortion is among the safest procedures and there are rarely complications. I mean, it’s like, infinitesimally small. So, it’s really unnecessary.
Number two, is the fact that because there are so few clinics now, across the country, a majority of women have to travel — some distance, sometimes very great distance — in order to access services. So, if you were to go home and suddenly have some sort of complication, there’s literally no reason to think that you would then drive back potentially hundreds of miles to go to a hospital where your abortionist had privileges. You do exactly what you do when you get sick at home, you go to the emergency room or you go see your doctor.
LF: So what does it mean to have admitting privileges exactly at a nearby hospital? Like what does that actually require?
JS: What it generally means is, and what it generally hinges on is a doctor actually having a practice where they admit patients to the hospital. So, for example, one of the Louisiana doctors, the only one that has admitting privileges, has an OB/GYN practice outside of his abortionist duties. And so, he obviously does admit a certain number of patients per year hence he has admitting privileges. The other doctors who are abortionists don’t admit patients to the hospital. That’s their dominant practice. And it is a safe thing. Put simply, women do not end up in the hospital from abortion, they don’t. So it’d be really hard to figure out how you could even get privileges. If that’s the sort of dominant scheme under which these things are granted, then there is no reason they should be able to get them and to be honest, it’s not as though the states don’t know this.
I mean, you have to understand this was calculated right, like this is a calculated move by lawmakers who want to restrict access because they know that you just don’t go, “Hey, I want admitting privileges,” and the hospitals like “Yeah, no prob.” It doesn’t work that way. And in fact, two of the doctors have been turned down for privileges precisely because they are abortionist. So this whole idea that, “Oh, if you just tried harder, you’ll get them” is just bullshit.
LF: So, there’s only one doctor in Louisiana that has admitting privileges. So that would mean if this were to go into effect, that there’d be only one doctor who can provide abortions in the whole state of Louisiana.
JS: Correct. I mean, there would be one doctor left that has admitting privileges for about a million women of reproductive age and about you know, 10,000 or so women that seek abortion services every year. So, now you’re looking at a situation where these women are, they’re gonna have to carry them to term, going to have to go to the black market, or are going to have to travel to Texas or to places like Mississippi, which by the way, has only one clinic and it’s in Jackson. It’s an unreasonable situation and untenable, you know, it really is.
So they say that they wanted to pass this because of this health and safety issue. The problem with that is the law is identical, identical to one passed in Texas in 2013, which led to the closure of about half of the state’s clinics. And when Louisiana lawmakers were going to pass this in 2014, there’s literally an email exchange out there between the bill sponsor and an anti-abortion activist, where they’re saying, “this is a great law. It’s had tremendous effect in closing clinics in Texas.” And that was their basically their underlying reason for passing it. This law is identical to the Texas one and the Texas one was struck down by the Supreme Court in 2016 in a case called Whole Woman’s Health v. Hellerstedt.
LF: Right, the Supreme Court recognized that the admitting privileges requirement “provides few if any health benefits for women, possesses a substantial obstacle to women seeking abortions and constitutes an undue burden on their constitutional right to do so.” So here we are, again, how did this Louisiana case find its way up to the Supreme Court?
JS: By the time that the Louisiana legislature passed this law, it was already clear that Texas’ law from the previous year, that’d be 2013, had devastating impacts on access. And so they still continued on. And then of course, it was immediately challenged by the Center for Reproductive Rights, which also, by the way, handled that Whole Woman’s Health case that the Supreme Court decided in 2016. So, they take this law to court. And after really, I mean, there’s a meticulous, very detailed, fact-heavy docket of this case in the district court in Louisiana. The District Court issued a really, really detailed ruling in early 2016, blocking this law from taking effect in Louisiana. So, the state then appealed it to the Fifth U.S. Circuit Court of Appeals. And it’s important to note that the Fifth Circuit handles appeals coming out of Texas as well as Louisiana.
So by the time that they’re considering the Louisiana case, they already know that they’ve been sort of told they were wrong by the Supreme Court. And nonetheless, they like went through this like really crazy analysis of the case to essentially say that there would be absolutely no problem whatsoever for women, if this law were to take effect. And they like employed this, literally mind bending math to like, come up with this idea that, in essence, this law would only mean that women would have to like wait a total of like one hour extra to receive care, which is like, completely ludicrous. The other problem with their ruling is that they basically overstepped their bounds of what they’re supposed to be doing.
So, when they looked at this case, what they’re supposed to do is they’re supposed to provide what’s known as sort of a clear error analysis. And that means that if the trial court — that district court — made factual determinations based on the witnesses and the evidence that it had before it, if those conclusions that that court comes are plausible in light of the entire record, the appellate court, the Fifth Circuit is not supposed to reverse the lower court opinion, even if it would have decided it differently. And here, they just completely stepped away from that standard. They basically re-litigated the case at the appellate level, which is just not the way it’s supposed to happen at all.
LF: And so what are the implications of Louisiana being able to disregard the 2016 Supreme Court decision and us being here again?
JS: One really important and interesting point, which someone far smarter than me was making to me is that Whole Woman’s Health v. Hellerstedt is like the most recent and controlling precedent on this issue, right? It was just decided three years ago. So, the question really overarching, and then this would apply to other contexts outside abortion as well, is a question about whether just a change in the court’s makeup means a change of your constitutional rights. So in other words, this is kind of set up as a sort of controlled experiment. This case was just decided three years ago, literally nothing in the universe about this has changed except for that there are two new judges on the court.
DJT: And we have two new Supreme Court justices Neil Gorsuch and Brett Kavanaugh.
JS: Two judges are not supposed to change the universe, right? So it’s kind of a perfect setup to see exactly how this is going to play out. And I think there’s a lot of people that think that John Roberts as the Chief Justice may be hostile to reproductive rights, but that there’s a more important thing in mind, which is keeping precedent steady, like keeping the court look like it has legitimacy, and that it actually stands for something. In other words, it stands for the rights of all as opposed to the few.
LF: Since it was found unconstitutional in 2016 have other states acted like Louisiana?
JS: No, you know, the interesting thing about it is that in the wake of the Whole Woman’s Health decision in 2016 basically, all the states where — and a number of them had passed admitting privileges, but all of them basically abandoned their litigation. They were like, “Okay, that’s done,” right? So I think that is notable, right, like Louisiana is just being an outlier here in pressing forward when everybody else who basically had this stuff pending before the courts or in some ways was dealing with the admitting privileges requirement, they all just basically gave it up and were like the Supreme Court has spoken. That’s that. That’s done. Let’s move on.
LF: So what are the various directions that this case could go?
JS: They could reaffirm Whole Woman’s Health and point out the ways in which the Fifth Circuit erred. If this law is somehow held to be constitutional, that really reinvigorates the states that are hostile to reproductive rights to really continue their sort of furious pace of trying to pass these like death by a thousand cuts to Roe. There is one other issue that the court oddly, I think has kind of indicated it’s going to consider in this case, and that’s the question of third party standing. And this is a long standing sort of precedent, right, which is the idea that in the abortion context, clinics, and doctors are allowed to bring these legal challenges on behalf of their patients to vindicate their patients’ constitutional rights. Every single case that has been decided in the abortion sort of arena dating, you know, all the way back to after Roe has been brought on third party standing, right. What Louisiana is questioning here is whether that’s proper.
Frankly, this was not litigated in Louisiana. If that was going to be a question, it was supposed to be properly sort of put before the district court and work its way up to the Supreme Court. So it’s a little surprising that they would take up that issue, but I think it’s also important to just sort of realize like how ludicrous it is to expect individual women to try to vindicate their rights. So you have to imagine, for example, that you were pregnant and you didn’t want to be. And you go to this clinic in Louisiana, and you’re having a hard time accessing, you know, care, that 24-hour waiting period, and you have to watch an ultrasound and be told what fetal development looks like, pass through all these hurdles.
And while you’re trying to do this, you’re supposed to say, “This is bullshit, OK, and I’m going to file a lawsuit.” So you’ve got to wait now and not have your abortion until after you can get that lawsuit going. And then you got to go back and get care. And then you gotta stick with this, you know, for years, as it makes its way through the legal system. Oh, and by the way, you got to have the money to do that, too, right. And then, because you’ve already then had the abortion, there’s a potential that they could say somewhere along the way — and I can’t even imagine that the state wouldn’t argue this is that well — you don’t have standing anymore. You had your abortion. So it couldn’t have been that onerous in the first place, right.
So I mean, the whole idea that individual women, individual patients would be required to challenge the constitutionality of these laws one by one is just ridiculous. It does relate to situations outside of the abortion context. So it would be really dangerous to overturn decades of precedent on third party standing just because you want to restrict access to abortion.
LF: What’s next for this Louisiana case?
JS: Well, nothing. We just wait on the Supreme Court. I guess they’re going to probably hear it sometime very early in 2020. And then will issue their decision before the end of the term in June.
LF: And are there other abortion cases we should keep an eye on?
JS: There are so many pending. I mean, you know, you see the Center for Reproductive Rights, the ACLU, Planned Parenthood, probably the big three that like really are litigating in this space constantly. And I know that right now, the center has 27 cases moving through the system, and that’s both at state and federal courts, but that’s a lot of cases, right? It’s because there’s been this, you know, real spate of all these really heavy handed gestational bans from all out, like, basically, the minute you’re pregnant, it’s illegal to, you know, six weeks, eight weeks, all this stuff. They’re all moving through the courts. It’s literally just a matter of time to see which one’s going to end up there next and what the court will do with it. So in a lot of ways, it’s a test, you know, to see kind of how this court is going to operate in this space.
LF: You wrote an article in August, titled as “Trump fans of flames of anti-abortion rhetoric, Kansas offers a cautionary tale.” What is the cautionary tale from Kansas?
JS: That’s basically looking back at in some ways that the role of anti-abortion rhetoric, predominantly coming from the government or people in power, has really dangerous consequences for women and for providers on the ground. So, you know, in the late 80s, sort of early 90s, there was just a really sort of, a ramping up of opposition, demonstrative opposition to abortion, led to a number of doctors actually being murdered. And disturbingly, it was supported by anti-abortion rhetoric from the top down. In fact, there was a situation in Wichita where an abortion group called Operation Rescue came for what they called the Summer of Mercy.
CBN News: It was a Sunday morning like no other in Wichita or anywhere else. Pro-life rescues just don’t happen on Sundays because abortion clinics aren’t usually open on Sabbath mornings. But this one was and it marked yet another turning point in Wichita’s hot summer battle for life.
JS: And there were just thousands of abortion protesters trying to block access to clinics there and particularly to Dr. George Tiller’s clinic, was one of just a very few number of doctors in the country who provide later term abortions and so he was a real foe of these groups. People would come from around the country to picket at his clinic while honestly, women would come from around the world in order to avail themselves with his services. And in the Summer of Mercy, they, you know, were really heavy handed clinic access blocking techniques. People were chaining themselves to doors, they were lying down underneath cars, just literally physically creating these barriers. It became a huge ongoing issue in the federal district court there. The judge was getting very frustrated because he was basically telling them they were not allowed to do this and then they would do it anyway. And they’d wind up right back in the court again.
Scott Pelley: After four weeks of chaos outside Wichita abortion clinics. A federal judge today vowed to restore order and launched a blistering attack against Operation Rescue, the radical anti-abortion group.
JS: And at one point, President, the elder Bush sent a young lawyer from the administration down to essentially litigate before the court in support of the protesters rights to do what they are doing. And that young lawyer happens to be our now Supreme Court Chief Justice John Roberts. There’s a really interesting sort of memoir of that time period from a guy named Reverend Rob Schenck, who is an evangelical minister who basically got very radicalized around abortion in the late 80s and 90s. And now has really kind of mostly sort of lamented the role that he played.
But in his book, he writes of that particular sort of confluence of events, of having the administration send this lawyer to Wichita to sort of vindicate these protesters rights as a clear sign that now even the highest form of government was supporting their righteous activities. So in the wake of all that doctors were murdered, murdered.
CBS News: Wichita police now have one person in custody after this morning’s shooting. It happened inside this church as 67-year-old George Tiller, one of the nation’s most well-known late term abortion doctors, was attending service.
JS: We’ve seen a real uptick in clinic related violence since the election of Donald Trump. I don’t think that’s a coincidence. It’s sort of a cautionary tale. You have to remember that there’s precedent for all of this and that if the past teaches us anything, it is that ramping up sort of the rhetoric in this space leads to people being killed.
LF: Thank you Jordan for being on Intercepted.
JS: Thanks so much for having me.
LF: Jordan Smith is an investigative journalist for The Intercept covering criminal justice and reproductive rights. Find her on Twitter @chronic_jordan.
JS: And that does it for this week’s show. You can follow us on Twitter @Intercepted. If you like what we do on this program, support our show by going to theintercept.com/join to become a sustaining member. Intercepted is a production of First Look Media and The Intercept. Our lead producer is Jack D’Isidoro. Our producer is Laura Flynn. Elise Swain is our associate producer and graphic designer. Our executive producer is Leital Molad. Betsy Reed is editor in chief of The Intercept. Rick Kwan mixed the show. Transcription for this program is done by Nuria Marquez Martinez. Our music as always, was composed by DJ spooky. Until next week, I’m Jeremy Scahill.