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Justice Amy Coney Barretts first week as an active Supreme Court justice began on Nov. 2 and almost immediately included a case that could test her credentials as a religious conservative.

On the surface, Fulton v. City of Philadelphia, which was argued in front of the court on Nov. 4, concerns whether the city can require organizations it partners with to accept same-sex couples as foster parents.

But underneath are questions about how Barrett and her fellow justices will deal with a decades-old Supreme Court ruling that could have wider implications for religious liberty cases.

The case in front of the justices concerns how Philadelphia partners with private organizations both religious and secular to find homes for children in foster care. In 2018, Philadelphia learned that two organizations, Catholic Social Services and Bethany Christian Services, had religiously motivated policies against placing children with same-sex couples in violation of Philadelphias Fair Practices Ordinance.

Philadelphia stopped sending foster care placement requests to these organizations as a result, prompting Catholic Social Services to sue.

Lawyers for Catholic Social Services argue that Philadelphias response violates First Amendment protections of religion and speech. Two lower federal courts ruled in Philadelphias favor. It is now up to the Supreme Court to decide whether the lower courts got it right.

Based on the questions asked during oral arguments, Fulton could well be decided on technical grounds over whether Catholic Social Services is a contractor or licensee of Philadelphia. But from my perspective as an attorney and First Amendment scholar, Barretts questions during oral arguments are of significant interest in considering the future of First Amendment law as it pertains to religious freedom.

Specifically, they suggest that Barrett is examining a key piece of First Amendment precedent: Employment Division v. Smith.

In Employment Division v. Smith, decided in 1990, the Supreme Court held that Oregon was not required to create an exception to its drug laws to permit the use of the hallucinogenic peyote in religious rituals. Central to the case was how to balance religious freedom with the rule of law.

In writing the courts opinion in favor of the state, Justice Antonin Scalia recognized that without some kind of limit on the Constitutions religious free exercise clause, laws could become meaningless.

He held that the Constitution does not allow religious adherents to violate a neutral law of general applicability, by which he meant a law that applies to everyone and does not favor or disfavor people based on their religion or lack thereof. Because Oregons law was neutral and generally applicable, the states refusal to exempt religious peyote use from its drug laws was deemed constitutional.

The Smith ruling has always been controversial, and many conservatives have long wanted the decision overturned.

But the Smith ruling has never been simply a left-versus-right issue. After all, its author was conservative stalwart Scalia, whom Barrett worked for as a law clerk. And even before her appointment, the Supreme Courts conservative wing had the numbers to overturn Smith if they so chose.

In addition, now that Smith has been precedent for over 30 years, justices who disagree with its reasoning face the issue of stare decisis the well-established legal principle advocating against overruling past decisions whenever possible.

Notably, limitations on stare decisis were a reoccurring topic in Barretts scholarly writing during her time as a law professor.

The lawyers for Catholic Social Services have argued that the Smith ruling should be overruled. In Nov. 4s proceedings, Barrett gave substantial attention to this line of argument in her questions.

In questioning one of Catholic Social Services lawyers, Barrett asked, What would you replace Smith with? This question might suggest that Barrett views the arguments for overturning Smith as worth taking seriously.

Barrett also made the following remarks while questioning Catholic Social Services lawyer:

You argue in your brief that Smith should be overruled. But you also say that you win even under Smith because this policy is neither generally applicable nor neutral. So, if youre right about that, why should we even entertain the question whether to overrule Smith?

These comments are important. Judges generally prefer to avoid overruling past decisions when a case can be decided for other reasons. Thus, even if Barrett were to think Smith is bad law, she might not advocate overruling it in Fulton if she thinks that Catholic Social Services can win on other grounds.

Barrett wasnt alone in picking up on the Smith argument. Justice Stephen Breyer spoke in favor of Smith at the Nov. 4 hearing, saying it was a solution to a problem that nobody could figure out how to answer. This indicates that Breyer sees Smith as striking the right balance between religious freedom and the rule of law and that he is unlikely to support overruling it.

It is unlikely that Smith would need to be overruled in order for the court to overturn the lower court decisions and side with Catholic Social Services. Still, some think that Barrett and her conservative colleagues may be willing to overrule Smith at some point.

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After all, Justice Barrett herself has written that stare decisis must be flexible in fact, not just in theory.

If Smith is someday overruled, it would likely increase the ability of courts to provide religious organizations with exemptions that allow them to discriminate against LGBTQ people. But as I believe oral arguments in the Fulton case suggest, that may be the outcome even with Smith left in place.

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Amy Coney Barrett sizes up 30-year-old precedent balancing religious freedom with rule of law - The Conversation US

Richard Stengel, the top state media appointee for US President-elect Joe Bidens transition team, has enthusiastically defended the use of propaganda against Americans.

My old job at the State Department was what people used to joke as the chief propagandist, Stengel said in 2018. Im not against propaganda. Every country does it, and they have to do it to their own population. And I dont necessarily think its that awful.

Richard Rick Stengel was the longest serving under-secretary of state for public diplomacy and public affairs in US history.

At the State Department under President Barack Obama, Stengel boasted that he started the only entity in government, non-classified entity, that combated Russian disinformation. That institution was known as the Global Engagement Center, and it amounted to a massive vehicle for advancing US government propaganda around the world.

A committed crusader in what he openly describes as a global information war, Stengel has proudly proclaimed his dedication to the carefully management of the publics access to information.

Stengel outlined his worldview in a book he published this June, entitled Information Wars: How We Lost the Global Battle Against Disinformation and What We Can Do About It.

Stengel has proposed rethinking the First Amendment that guarantees the freedom of speech and press. In 2018, he stated, Having once been almost a First Amendment absolutist, I have really moved my position on it, because I just think for practical reasons in society, we have to kind of rethink some of those things.

The Biden transition teams selection of a censorial infowarrior for its top state media position comes as a concerted suppression campaign takes hold on social media. The wave of online censorship has been overseen by US intelligence agencies, the State Department, and Silicon Valley corporations that maintain multibillion-dollar contracts with the US government.

As the state-backed censorship dragnet expands, independent media outlets increasingly find themselves in the crosshairs. In the past year, social media platforms have purged hundreds of accounts of foreign news publications, journalists, activists, and government officials from countries targeted by the United States for regime change.

Stengels appointment appears to be the clearest signal of a coming escalation by the Biden administration of the censorship and suppression of online media that is seen to threaten US imperatives abroad.

Before being appointed as the US State Departments chief propagandist in 2013, Richard Stengel was a managing editor of TIME Magazine.

In the Obama administration, Stengel not only created the Global Engagement Center propaganda vehicle; he also boasted that he led the creation of English for All, a government-wide effort to promote the teaching of English around the world.

After leaving the State Department in 2016, Stengel became a strategic advisor to Snap Inc., the company that runs the social media apps Snapchat and Bitmoji.

Stengel also found time for a fellowship at the Atlantic Council, a think tank closelylinked to NATO and the Biden camp which has received funding from the US government, Britain, the European Union, and NATO itself, along with a host of Western weapons manufacturers, fossil fuel corporations, Gulf monarchies, and Big Tech juggernauts.

Stengel worked closely with the Atlantic Councils Digital Forensic Research Lab, a dubious organization that has fueled efforts to censor independent media outlets in the name of fighting disinformation.

But Stengel is perhaps most well known as a regular political analyst on MSNBC in the Donald Trump era. On the network, he fueled Russiagate conspiracy theories, portraying the Republican president as a useful idiot of Russia and claiming Trump had a one-sided bromance with Vladimir Putin.

Stengel left MSNBC this November to join Bidens presidential transition. The campaign announced that he was tapped to lead the Biden-Harris agency review team for the United States Agency for Global Media (USAGM).

USAGM is a state media propaganda organization that has its origins in a Cold War vehicle created by the CIA to spread disinformation against the Soviet Union and communist China. (The agency was previously called the Broadcasting Board of Governors, or BBG, until it rebranded in 2018.)

USAGM states on its website that its most important mission is to Be consistent with the broad foreign policy objectives of the United States.

An agency shakeup this year produced revelations that USAGM provided clandestine assistance to separatist activists during the protests that consumed Hong Kong in 2019. The program earmarked secure communications assistance for protesters and $2 million in rapid response payouts for anti-China activists.

When Richard Stengel referred to himself as the State Departments chief propagandist, advocated the use of propaganda against the American people, and proposed to rethink the First Amendment, he was participating in a May 3, 2018 panel discussion at the Council on Foreign Relations (CFR).

During the CFR event, titled Political Disruptions: Combating Disinformation and Fake News, Stengel hyped up the threat of supposed Russian disinformation, a vague term that is increasingly used as an empty signifier for any narrative that offends the sensibilities of Washingtons foreign policy establishment.

Stengel stated that he was obsessed with fighting disinformation, and made it clear he has a particular obsession with Moscow, accusing the Russians of engaging in full spectrum disinformation.

Joining him on stage was political scientist Kelly M. Greenhill, who mourned that alternative media platforms publish things that seem like they could be true thats the sphere where its particularly difficult to debunk them its this gray region, this gray zone, where its not traditional disinformation, but a combination of misinformation and play on rumors, conspiracy theories, sort of gray propaganda, thats where I think the nub or the crux of the problem lies.

Stengel approved, adding, By the way those terms, the gray zone, are all from Russian active measures, that theyve been doing for a million years.

The panelists made no effort to hide their disdain for independent and foreign media outlets. Stengel stated clearly that a news cartel of mainstream corporate media outlets had long dominated US society, but he bemoaned that those cartels dont have hegemony like they used to.

Stengel made it clear that his mission is to counter the alternative perspectives given a voice by foreign media platforms that challenge the US-dominated media landscape.

The bad actors use journalistic objectivity against us. And the Russians in particular are smart about this, Stengel grumbled.

He singled out Russias state-funded media network, RT, lamenting that Vladimir Putin, when they launched Russia Today, said it was an antidote to the American English hegemony over the world media system. Thats how people saw it.

Ben Decker, a research fellow at the Misinformation Project at the Harvard Kennedy School of Government, lamented that RT is invading every weekly finance media space.

But Decker was cheered by the proliferation of US oligarchs committed to retaking control of the narrative. In America and across the world, he stated, the donor community is very eager to address this problem, and very eager to work with communities of researchers, academics, journalists, etc. to target this problem.

I think that there is an appetite to solve this from the top down, he continued, urging the many academics in the audience to apply for grant money in order to fight this Russian disinformation.

The CFR panel culminated with an African audience member rising from the crowd and confronting Stengel: Because what is happening in America is what the United States flipped on the Global South and in the Third World, which we lived with, for many, many years, in terms of a master narrative that was and still is propaganda, the man declared.

Rather than respond, Stengel rudely ignored the question and made his way hurriedly for the exit: You know what, I hate last questions. Dont you? I never, I usually just want to end something before the last question.

The video of the revealing confrontation caused such a furor that CFRs YouTube account disabled comments and made the video unlisted. It cannot be found in a search on Google or YouTube; it can only be found with the direct link.

The video of the full discussion is embedded below:

Read more:
Biden state media appointee advocated using propaganda against Americans and 'rethinking' First Amendment - The Grayzone

The election of Joe Biden as the next President of the United States has come as a great relief to Natzieli Alvarezand nearly 650,000 other undocumented immigrants, who are protected from deportation by the Deferred Action for Childhood Arrivals (DACA) program.

It seems that the United States in some circumstances understands the importance of the First Amendment, but whenever confronted with a situation where it doesnt like the type of speech or the speaker, it willfully ignores that obligation.

As a nine-year-old in 1995, Alvaraz crossed the border with her mother and sister to escape poverty and domestic violence in Mexico. She lived an underground existence until the establishment of DACA in 2012. But for the past three years, President Donald Trump has tried to dismantle this program.

The only thing I had to get me through was hope; hope that we would get him out. Just the hate he spewed. It was just too much, says Alvarez, who now lives in Medfield, North Carolina, and is active in the immigrant rights group, Siembra NC.

DACA is one of the protections Biden has pledged to restore. He can do this without Congressional approval. And thats also true for more than 400 other executive actions that Trump has unilaterally implemented in an unprecedented assault on immigration.

A more challenging task would be Bidens desire to create a roadmap to citizenship for the nearly eleven million people who have been living in and strengthening our country for years.

In the meantime, simply returning immigration to the pre-Trump days wont suffice. Alvarez, like many activists, wants to be treated the same as everyone else. We are here to remind people that you can plant roots here because you live here, she says.

Biden should instruct Immigration and Customs Enforcement (ICE), as well as Customs and Border Protection, to stop treating asylum seekers as criminals. And when immigrants do run afoul of the law, that shouldnt be a pretext for deportation.

So many individuals who have a single offense from many years ago have gone through the criminal justice system, paid their debt to society, and suddenly find themselves subject to deportation, says Alina Das, co-director of New York University School of Laws Immigrant Rights Clinic.

Ravi Ragbir, fifty-six, for example, is now fighting deportation to Trinidad and Tobago, arguing that the Trump Administration has singled him out because of his activism as executive director of the New York City-based New Sanctuary Coalition. Das, who is representing Ragbir, notes that a 2001 fraud conviction was the basis for revoking his permanent residency.

Previous administrations recognized Ragbirs contributions, and did not go ahead with deportation.

But the Trump Administration detained him for deportation in January 2018. Although Ragbirs case is still being fought out in the courts, the Second Circuit Court of Appeals recognized that he has provided plausibleindeed, strongevidence that officials responsible for the decision to deport did so based on their disfavor of Ragbirs speech.

The attempt to deport Ragbir is one of 1,010 retaliatory actions by immigration enforcement in recent years now documented on an interactive website established by the NYU Immigrant Rights Clinic and the New Sanctuary Coalition.

It seems that the United States in some circumstances understands the importance of the First Amendment, says Angelo Guisado, a lawyer with the Center for Constitutional Rights. But whenever confronted with a situation where it doesnt like the type of speech or the speaker, it willfully ignores that obligation.

Guisado was one of the lawyers who represented three undocumented workers and the immigrants rights group Migrant Justice in a lawsuit recently settled with the federal government. The three are active in Migrant Justice, which organizes dairy farmworkers in Vermont. They claimed they were singled out for arrest and deportation because of their political activism. An informant was even used to spy on the group.

The lawsuit, filed in U.S. District Court in Burlington, alleged First Amendment and other constitutional violations by ICE. In the settlement, the government agreed to pay plaintiffs a total of $100,000 and not proceed with their deportation. ICE, while not admitting wrongdoing, agreed to remind its agents in the Vermont field office that the First Amendment must be respected.

Bidens immigration plan calls for ending for-profit detention centers. His platform also seeks an end to long-term detention and a greater use of alternatives.

The Vermont Department of Motor Vehicles was also a defendant because it shared information about applications for Drivers Privilege Cards with ICE. A 2013 state law allows undocumented immigrants to drive with such a card. This part of the lawsuit was settled last January with tighter restrictions to protect applicants.

The message is that ICE needs to get its hands off the community because workers understand that what we are doingorganizing and speaking outthats something that is constitutionally protected, says Enrique Balcazar Sanchez, one of the plaintiffs.

Biden should follow the lead of localities and states that have adopted sanctuary laws and policies to prohibit local law enforcement from engaging in various collaborations and information sharing with ICE and Customs and Border Protection.

Das, who is the author of a new book, No Justice in the Shadows: How America Criminalizes Immigrants, says Biden could end the Secure Communities program, which shares fingerprints taken by local law enforcement with ICE, and no longer deputize local police for immigration enforcement. And she calls on the new administration to stop requesting that local jails hold on to immigrants who have completed jail time until they are picked up by ICE agents for detention and deportation.

Bidens immigration plan calls for ending for-profit detention centers. His platform also seeks an end to long-term detention and a greater use of alternatives.

But there needs to be a much deeper dive into detention. The number of immigrants locked up by ICEsometimes for years in deplorable conditionsballooned from a daily average of 34,376 in fiscal 2016 to 54,000 in June 2019.

This sharp increase was fueled by Trumps zero tolerance policy, which doubled down on a punitive trend of charging asylum seekers with criminal violationssuch as illegal entry or re-entry into the United States.

Clearly, this is no way to treat asylum seekers, who should not be criminally charged. Nor need they be detained by ICE. Instead, they should be released to sponsors, often family members, while awaiting resolution of their asylum claims.

In 2020, the idea that you have to lock up a person in a cage as part of a civil proceeding makes no sense, says Das.

Over the past year, the ICE detention population plummeted to about 17,000 by early November 2020but for the wrong reason.

Trumps use of the COVID-19 pandemic as an excuse to close the borders in March to asylum seekers has resulted in nearly 200,000 immigrants being turned away by the end of September without so much as a hearing before an immigration judge.

ICEs continued detention of a thirty-three-year-old Mexican immigrant, Carolina, shows how entrenched the agency is in the Trumpian mindset.

Carolina, who asked to be identified by first name only, survived severe abuse from her former partner who, according to court papers, beat her so badly that she was in a coma for a month. She and her family were also threatened by a criminal cartel, which tried to extort them. Police would not intervene to protect her, says her lawyer, Zachary Sanders, director of Immigration Legal Services for Catholic Charities Southwestern Ohio.

In 2015, Carolina and her son, who is now fourteen, sought asylum in the United States. She was initially allowed to stay with family in the Cincinnati area. But her arrest for driving while under the influence in December 2019, which resulted in a misdemeanor plea, prompted ICE to detain her at the Butler County Correctional Complex, near Cincinnati.

This past August, Immigration Judge Bruce Imbacuan granted Carolina asylum. He found that she had credibly testified about her abuse, which caused traumatic injuries.

Still, ICE has kept Carolina in detention, away from her family, while it appeals the judges ruling.

Its like hell in here, where I am separated from my son. Life just goes, Carolina tells The Progressive.

At Butler, she says, guards, have not worn masks, and the inmates often dont cover their nose and mouth.

She can only hope Bidens election will bring change. In my heart, I believe it is betterfor everyone.

Trumps March border closures followed three years of executive branch directives that have all but blocked the United States from becoming a safe haven for the persecuted.

It has got to be a restart from essentially a dead stop, says Kate Jastram, director of policy and advocacy for the Center for Gender and Refugee Studies.

Bidens campaign platform says that he will rescind a wide range of Trumps restrictive asylum policiesincluding the Migrant Protection Protocols, which have forced more than 67,000 asylum seekers to remain in Mexico while U.S. immigration courts consider their cases.

Trump has also reduced to a trickleabout 11,000 for the fiscal year that just endedthe number of refugees admitted from abroad for resettlement. Biden says hell increase the annual admissions to 125,000 and end Trumps Muslim ban, prohibitions on issuing visas to people from thirteen nations, many with Muslim majority populations.

Biden must also reopen the borders to asylum seekers, who should be valued as more important than the essential traffic that continues to make daily crossings.

Rather than imposing a ban or suspension on people seeking protection from harm, U.S. authorities should use evidence-based public health measures to process asylum seekers and others crossing the U.S. border, says a May letter from fifty-seven leading health experts to top Department of Health and Human officials.

Biden has said not another foot of border wall will be constructed on his watch and that a government task force will be established to help reunite the 666 children separated from their families by Trump.

And while Biden says he will end prosecution of parents for minor immigration violations, such an approach does not go nearly far enough to address an immigration bureaucracy out of control. He should also push lawmakers to rethink how ICE and Customs and Border Protection have trampled on rights and instilled fear in immigrant communities.

As Angelo Guisado of the Center for Constitutional Rights puts it: We need something that is more in line with our values as a society.

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A New Vision for Immigration - Progressive.org - Progressive.org

SALT LAKE CITY The Utah Supreme Court heard arguments Monday in a case alleging male leaders of a Jehovahs Witnesses congregation in Roy forced a 15-year-old girl to listen to a recording of a man raping her in 2008.

Lower courts found the church is not liable for the incident under protections of the First Amendment.

The states high court has not yet made any ruling, but one justice made his views on the alleged conduct clear.

The allegation here is a mental and emotional equivalent of waterboarding, Justice Deno Himonas said. Ive been a judge for a long time and a lawyer for a long time. Ive never seen, in court, anything like this thats alleged.

The justice was responding to an attorney for the church who referenced the torture in defending her clients. Lawyer Kara Porter said she would draw a line at such physical harm. But she emphasized the woman in the case alleges intentional infliction of emotional distress.

Attorneys for the woman now in her late 20s argue that lower courts got it wrong when they ruled that the First Amendment shields the church from liability.

They say that Utahs highest court will set a dangerous precedent if it decides to grant such protection, effectively permitting other harmful conduct by religious organizations like sharing a persons medical records or repeatedly striking a child in the face.

Porter emphasized that the tribunal was trying to determine whether the girl had sinned, a process the government isnt permitted to meddle in.

The woman sued the four elders, the Roy church and the religions national organization, the Watchtower Bible and Tract Society, in Odens 2nd District Court in 2016. She alleges she cried, shook visibly and pleaded for them to stop as they played the recording intermittently over the course of at least four hours in 2008. Their goal was to extract a confession that she had voluntarily engaged in sex outside of marriage, her attorneys contend.

She alleges she was 14 years old when the man, a fellow Jehovahs Witness, 18, bullied her increasingly and began sexually assaulting her in December 2007. She alleges he raped her several times and provided her congregations leaders a recording of one instance.

She sought out counseling and medical treatment as she dealt with anxiety, nightmares and poor performance in school, her attorneys say. They note that before she appealed, the 2nd District Court ruled it would have no hesitation in sending the case to a jury if it pertained to a secular setting.

Its an important and difficult case, Chief Justice Matthew Durrant said at the conclusion of the hearing that lasted about an hour and a half.

The justices on Monday peppered lawyers on both sides with questions about where a legal line should be drawn in civil claims tied to religious matters. Both parties agreed that the allegations do not fit any criminal offense.

Justice Paige Petersen said the answer may be a matter of degrees.

Simply convening the church tribunal process could distress a person in the faith who knows the conduct is viewed as a sin, Petersen noted. On the other end of the spectrum, she said, a group may believe it must do anything necessary to find out what happened, even if the process includes torture.

How do we draw lines there? Petersen said.

The U.S. Supreme Court has held that a government action violates the First Amendments prohibition on establishing religion if it fosters an excessive entanglement with religion.

The Utah Court of Appeals ruled last year that adjudicating the womans legal claim would amount to excessive entanglement because it requires an inquiry into the appropriateness of the churchs conduct in applying a religious practice and therefore violates the Establishment Clause of the First Amendment.

Her attorneys disagree.

Lawyer Robert Friedman said he doesnt dispute there were religious reasons at play, but the motive cannot justify the conduct.

Moreover, the case doesnt require a court to interpret religious teachings or determine whether someones religious beliefs are true or false, the sorts of moves the First Amendment prohibits.

In addition to the free-speech argument, attorneys for the elders and church have argued the lawsuit lacked facts to support the claim. They have also previously said the men had a duty in their faith to investigate allegations of sin and the teenager could have walked out of the meeting with her parents.

Justice Thomas Lee raised the question of whether religious discrimination factors in due to Utahs predominant faith, The Church of Jesus Christ of Latter-day Saints. He noted a jury could mainly consist of members of that faith.

Dont you think that theres a serious concern that that body and that group is going to be making a judgement based on their beliefs of what religious orthodoxy and reasonableness is? Lee asked.

Friedman countered he believes those issues could be ferreted out by a judge, including in the jury selection process and in instructions given to jurors before they deliberate.

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Court hears case of woman suing Utah Jehovas Witnesses over rape audio - Deseret News

The weekend before Donald Trump was elected president in 2016, a secret private security initiative called Operation Baratheon was scheduled to begin. A PowerPoint presentation laid out the plan for Joel McCollough, a burly ex-Marine bearing a resemblance to Game of Thrones character King Robert Baratheon. He had been posing as an opponent of the Dakota Access pipeline at protests in Iowa but was now assigned to travel to North Dakota to collect intelligence on the growing anti-pipeline movement.

There, near the Standing Rock Indian Reservation, thousands were camped out as part of the Indigenous-led resistance to the Dakota Access pipeline. Energy Transfer, the ventures parent company, had plans to run the Dakota Access pipeline under the Missouri River. Calling themselves water protectors, the people in camp objected to the threat the pipeline would present to the Standing Rock Sioux Tribes primary drinking water source.

The effort to stop the pipeline had quickly become one of the most important Indigenous uprisings of the past century in the U.S. And McCollough, working for the mercenary security firm TigerSwan, was a key player in Energy Transfers multistate effort to defeat the resistance, newly released documents reveal. TigerSwan took a militaristic approach: To McCollough and his colleagues, the anti-pipeline movement was akin to the insurgencies the veterans had confronted in Afghanistan and Iraq. In line with that view, they deployed the same kinds of subversive tactics used in theaters of war.

One of these tactics was the use of spies to infiltrate so-called insurgents. That was McColloughs goal when, in November 2016, he drove to North Dakota with an unwitting pipeline opponent. A PowerPoint slide titled Mission described exactly what he would do once he arrived: infiltrate one of the Standing Rock camps. Another slide, titled Situation, listed his adversaries, under the heading of Belligerents: Native American activists, anti-establishment radicals, independent press, protester intelligence cells, camp security.

The newly revealed documents obtained by The Intercept show how security operations likeMcColloughs infiltration were carefully orchestrated and managed by TigerSwan describing in the security firms own words activities that it has repeatedly denied ever took place.

The documents make clearjust how far security companies hired by energy industry firms in this case, TigerSwan and Energy Transfer will go to protect their clients business interests against a growing climate movement, and how much the energy companies are willing to spend for these aggressive defenses: An invoice from December 2017 said TigerSwan had billed Dakota Access LLC, a subsidiary of Energy Transfer, some $17 million up to that point.

For movements like the one at Standing Rock Indigenous land and water defenders, fighting for territory central to their identity and health, and climate activists, staving off a potential future of chaos and suffering their actions are a matter of survival. But the same can be said for the energy companies, evidenced by their willingness to deploy war-on-terror-style tactics.

Advocates for the activists, though, say the war-like tactics have created harmful conditions for those exercising their right to dissent. This level of saturated, coordinated attack between private corporate interests, law enforcement, private security to shut down the climate justice movement particularly in the United States is extremely dangerous, said Mara Verheyden-Hilliard, co-founder of the Partnership for Civil Justice Fund, which is working with the Water Protector Legal Collective to represent water protectors in a class-action lawsuit against North Dakota law enforcement officials for usinghigh-pressure water hoses and other aggressive tactics at Standing Rock. The suit notes TigerSwans close collaboration with the sheriffs officials.

The new documents, which are being reported here for the first time, were turned over as discovery material to the North Dakota Private Investigation and Security Board. The board filed an administrative complaint against TigerSwan and its former CEO, James Reese, a retired commander of the elite special operations military unit Delta Force, for operating without a license in the state alleging violations carrying more than $2 million in fines. TigerSwan responded to the claim in court by saying the firm only provided consultation for the operations.

The security board made the new material public as exhibitsattached to a legal filing alleging that TigerSwans denials were willfully false and misleading and that the documents provedit.

This level of saturated, coordinated attack between private corporate interests, law enforcement, private security to shut down the climate justice movement particularly in the United States is extremely dangerous.

In his responses to the boards allegations, Reese claimed misinformation was to blame for parts of the security boards lawsuit against TigerSwan, suggesting the culprit was a series of investigative stories from The Intercept: The board considers one sided news reports from an anti-energy on-line publication a sufficient basis for calling me a liar, Reese declared.In the same affidavit, Reese claimed the operation involving McCollough had merely been proposed to the firm and, owing to its lack of a security license, not approved by TigerSwan.(At the end of last summer, TigerSwan and Reese signed a settlement with the board for less than $200,000, admitting no wrongdoing.)

TigerSwans own reports, however, offer rich detail about the companys operations better than any other source to date. (Neither Reese nor TigerSwan responded to a detailed request for comment for this article. Energy Transfer directed questions to TigerSwan and said, We have no knowledge of any of the alleged activities. McCollough suggested that some of the TigerSwan documentsincluded as exhibits in the North Dakota boardsfiling which he incorrectly described as leaked may contain inaccurate information, but declined to point to any specific fact he disputed or item he believed to be false.)

WhatsApp chats, invoices, operational plans, and organizational charts, all made public by the North Dakota security board, show how Reese andTigerSwan were making,according to the board, willfully false and misleading claims when theysaid that the company had not carried out private investigation, security work, or infiltration operations in North Dakota. The company documents show instead that TigerSwan at times promoted its human intelligence operation as a driving element of its effort to fight pipeline resistance.

TS personnel have established eight months of relationships with activists, a presentation titled TigerSwan Intelligence stated. The same slide noted that TigerSwan operatives had gotten to know Anti-pipeline groups in Iowa, Nebraska, Illinois, Missouri, and North Dakota and Maintain personal relationships with key leaders.

No other company has infiltrated these activist groups on a long-term basis, another slide said. Our personnel even now develop deeper ties into activist communities and groups that are international in their reach.

TigerSwan organized its surveillance work like a full-fledged state intelligence agency but on a smaller scale. The company divided the intelligence operation into teams focused on human intelligence, imagery intelligence, signals intelligence (intercepting communications), and open-source intelligence based on news reports or other publicly available material like social media posts. The TigerSwan teams worked out of fusion centers the same term state law enforcement agencies use to describe a network of post-9/11 information sharing offices located in Bismarck, North Dakota; Des Moines, Iowa; and Sioux Falls, South Dakota, according to an organizational chart.

The imagery intelligence team included an operative who took photographs of the camps from a helicopter, while the signals intelligence team monitored water protectors radio communications. At times, on the radios, TigerSwan operatives would add their own disruptive messages, according to a former member of the intelligence team, who declined to be named out of fear of retribution.

Key to the security operation was the use of infiltrators. Having TS CI/HUMINT infiltrators on the ground is critical in minimizing lost construction time, the TigerSwan Intelligence PowerPoint noted, using acronyms for counterintelligence and human intelligence.

Joel McCollough, far right, at a climate march launch event in Chicago hosted by Food & Water Watch in April 2017.

Photo: Courtesy of Gloria Araya

The plan for Operation Baratheon describes how the company organized such activities. In advance ofMcColloughs election-week trip, TigerSwan meticulously plotted out the mission, compiling a slideshow with the weather forecast, the driving route from Iowa to North Dakota, and a detailed escape plan, including an option for a helicopter evacuation. This calculated approach was new for the company, said the intelligence team member. Recently, a company infiltrator had been hastily removed from the North Dakota camps after his cover was blown, and TigerSwan did not want to be caughtunprepared again. Once a day,McCollough was to use code phrases to check in with his handlers on a WhatsApp channel that includedsix other TigerSwan operatives, according to the documents.

The operation plan warned of certain types of people referred to as belligerents thought to be dangerous.McCollough, for example, was to be wary of members of the independent press. The former contractor explained the thinking: Independent reporters are not unbiased, he said, and theyre basically an intelligence collection node for whatever movement theyre a part of.

Framing journalists, camp security, and Native American activists as hostile aggressors was in line with TigerSwans view of the protests as an insurgency that must be quelled: TigerSwans counterinsurgency approach to the problem set is to identify and break down the activist network, the intelligence PowerPoint stated. TS Intel understands anti-pipeline activists have developed cultural, religious, and ethnic environments which we are uniquely capable of exploiting.

Framing journalists, camp security, and Native American activists as hostile aggressors was in line with TigerSwans view of the protests as an insurgency that must be quelled.

Pipeline opponents have alleged that the counterinsurgency campaign led to civil rights violations. Although the North Dakota security board signed the settlement agreement, at least one other lawsuit against the security firm is outstanding. The suit, which alleges that the closure of the highway passing by the resistance camps infringed on pipeline opponentsFirst Amendment rights, says TigerSwans close collaboration with police and public officials makes the security firm liable for the abuses.

Water protectors believe that the paltry fines imposed by the security board provide only a semblance/parody of justice. TigerSwan has not yet been held meaningfully accountable for their actions at Standing Rock, said Noah Smith-Drelich, an attorney representing water protectors in the highway case. Were hoping to change that.

Two bearded men wielding swords and wearing wolf skins illustrate the cover of a TigerSwan Daily HUMINT report for December 8, 2016. The men represented in the TigerSwan document are lfhnar, a type of elite Viking soldier that goes into a trance-like state as they lead attacks on enemies.

The presentation slides in the HUMINT report offer intelligence on a variety of people, organizations, and other aspects of camp life. The group Veterans for Peaceis a very communist organization, said one slide. Another, titled Red Warrior Camp Cell Leader, tracked the activities of a water protector named Tempeh, who was thought to be involved with a direct action-focused camp. Tempeh has asked RO coded initials for the infiltrator to assist him in evaluating weaknesses in the systems for the purposes of exploiting/sabotaging. RO remained non-committal, one slide said. Tempeh is also looking for someone to dig up dirt on sex trafficking involving DAPL workers. The infiltrators, according to the documents, volunteered to collect such information, in an effort to gain the trust of camp leaders.

The slide contained numerous inaccuracies, Tempeh told The Intercept. Tempeh, for example, was close with members of Red Warrior, but he belonged to a separate camp called Heyoka.He said much of the material seemed to be based on rumor or on the kind of directionless brainstorming that occurred around campfires.

The PowerPoint was only the starting point for more than a month of documented spying. The records provided by TigerSwan in discovery show that, the same day the report about Tempeh came in, a human intelligenceteam member named Logan Davis created a WhatsApp chat group withMcCollough and a third member of the TigerSwan team, Zachary Perez, who were both getting ready to enter the North Dakota camps. (Neither Davis nor Perez responded to requests for comment.)

Joel, first RFI for you, Davis wrote, using an acronym for request for information, who belongs to Red Warrior Group. He wanted the leadership structure, number of members, where they were staying, and a description of their vehicles. He asked the same for Veterans for Peace. Perez, meanwhile, would attempt to gain access to Sacred Stone camp.

RW is highly guarded,McCollough replied, referencing Red Warrior camp. I got extremely lucky meeting Tempeh the way i did. He asked Davis to get the name of a pimp from law enforcement, so he could build bona fides with Tempeh. (Asked about the report, Tempeh did not recall any conversation withMcCollough.)

Davis delivered a name and then sent the operatives into action: Start reengaging your sources. We dont have the luxury of time.

The infiltrators did just that, according to the TigerSwan documents attached to the Boards filing. They attended courthouse support protests, offered to be drivers for direct actions, invited water protectors to crash in their hotel rooms, and provided them with gear. They filed intelligence reports and details of their movements back to Davis, who at times mingled among water protectors himself, and later to other handlers, Nik McKinnon and Will Janisch. (McKinnon and Janisch did not respond to requests for comment.)

The chat logsdescribe the roleReese, then TigerSwans CEO, played in managing the HUMINT operation. When Jim Reese visited a while ago he said the collectors a term for intelligence collectors, including infiltrators could have 1k in petty cash, McCollough told the group, explaining that he didnt want to use his credit card in front of the pipeline opponents. I told him 500 would be plenty.

Throughout December 2016, McCollough developed relationships with various water protectors. According to the TigerSwan chat logs in the North Dakota security boards filing, he repeatedly referred to them in the chats as muj, shorthand for mujahedeen, a reference to Muslim religious fighters. TigerSwan operatives exchanged crude banter about women and racist jokes, including about drunk Indians. The chat itself was titled Operation Maca Root 3, a supplement known for increasing libido and fertility in men.

As the former member of the TigerSwanintelligence team put it, At some level you naturally dehumanize the enemy. They do the same thing.He added, This isnt a Brooklyn tech startup, its a bunch of mercs in a private chat supposedly.

Advocates for water protectors noted that such dehumanizing language speaks to the mercenaries militaristic approach. Its the same type of racism thats employed by the military in other countries to dehumanize and demonize a population under attack or under occupation, said Verheyden-Hilliard.

At one point in the chats, Davis indicated ambitions to do more than just observe water protectors activities. He flagged the presence of an organization of veteran volunteers called The Mission Continues, telling the chat group, I can see this being something we can develop and infiltrate rather easily, if not completely take over.

On a different day, after noting thatfew supporters turned out at atrial for a water protector, Davis joked, Its pretty bad, Im gonna eat breakfast and think about how much we have destroyed a grass roots movement.

The assessment of TigerSwans efficacy was shared by the former member of the intelligence team: Demoralization, destabilization, fake crisis, ideological subversion, active measures, or psychological warfare these had all taken theirtoll, he said.

The most active infiltrator in the chat group was McCollough, according to the logs made public in the security board filing. Throughout December and January, he attempted to identify weapons in the camps. He described interpersonal disputes between members of the camp security groups and drug and alcohol use among the pipeline opponents. And he showed a special interest in violence against women. Previous reporting by The Intercept shows that he asked two water protectors for names of women who had been assaulted, claiming he was a journalist writing an article about it; they declined. The chat provides evidence of that approach. Working on the pirs priority intelligence requirements with a muj who thinks Im gonna write an article about the rapes in camp, he told the chat group at one point.

McCollough floated another idea for obtaining information that water protectors didnt offer voluntarily. Can we get micro recorders for a hotel room? If its legal, of course, he suggested. (In fact, water protectors had found what appeared to be such a device at the hotel and casino back in October.) Tempeh used the bathroom to have private discussions even when the room was full. If i had had a recorder I could turn on remotely it would have been great.

You can do it but cant be used in court, the other infiltrator, Perez, responded. Only with consent or in a public Setting.

McKinnon, the handler, jumped in. It would depend on whos dwelling it is. And what Zach said.

If i paid for the room, its mine, right?McCollough asked.

Correct, McKinnon replied.

They were mostly wrong. In North Dakota, using recording devices, even in your own home, would amount to felony eavesdropping in a space like a bathroom, where there is a reasonable expectation of privacy unless at least one person present agreed to the recording, according to North Dakotas wiretappinglaws.

Tempeh, who remembered seeing McCollough that day in the hotel room, said that operational security was essential to planning nonviolent direct actions and likely prevented McCollough from getting much meaningful information. If you werent in our family, we didnt talk to you, he said. We didnt even talk around you.

Vanessa Dundon, a plaintiff in the class-action lawsuit related to the water hoses, was also mentioned in the documents. Dundon, who is Din, lost vision in one eye after being hit by a tear gas canister at Standing Rock. In the chat logs filed by the security board, McCollough claimed to have spent a night in Dundons room, to which Davis replied that he hoped McCollough would make little martyrs with her. Cyclops babies, Perez replied in the chats, a crass reference to Dundons lost eye.

Dundon said she didnt remember McCollough. It disappoints me how childish all of the security firms are and that they are in any position of power, she said. Even as she continues, four years later, to undergo surgeries on her eye, however, Dundon findshumor in the infiltrators boorish exchange. Its funny in a way, she said. Being Native, the way we take in hate or shaming we turn those things to make them laughable.

Ultimately, for Dundon and others, its their communities health at stake. Kandi Mossett, a member of the Mandan, Hidatsa, and Arikara Nation from the Fort Berthold reservation in the heart of North Dakotas fracking region, developed cancer when she was 20 years old, which she believes was linked to pollution in hercommunity.

Mossett, who was also mentioned in the WhatsApp chats filed by the security board, said the surveillance she and others experienced at Standing Rock has indelibly changed the Indigenous environmental justice movement. Its still affecting people four years later with PTSD, she said. She and others have become more cautious about who they trust and how they use technology. The surveillance, she added, is a form of trying to shut us up and shut us down. And for most of us, it didnt work.

The WhatsApp chats continued into mid-January, though McCollough worked as an infiltrator through the spring, long after the camps closed down in February. The documents obtained by The Intercept leave a paper trail of his work. An invoice dated March 23, 2017, listed him as HUMINT ND human intelligence North Dakota and an April 2017 image of McCollough at a Chicago meeting of the nonprofit Food& Water Watch appeared in the PowerPoint titled TigerSwan Intelligence.

TigerSwan saw opportunity on the horizon: anti-pipeline insurgency everywhere.

By then, the movement at Standing Rock had quieted down, and it was becoming increasingly clear that the counterinsurgency force envisioned by TigerSwan at Standing Rock was no longer needed, even on its own terms. TigerSwan, however, saw opportunity on the horizon: anti-pipeline insurgency everywhere. The internal company documents hint at plans to build out the firms own cottage industry of squelching pipeline protests. One presentation, which appears to be a pitch to fossil-fuel companies, lays out the services TigerSwan hoped to provide.

Law enforcement was no match for pipeline opponents, the pitch began. The activist mindset places them in at the same level as an insurgency, which is outside current law enforcement capabilities, a slide said. It was TigerSwans human intelligence capabilities that truly set it apart from law enforcement, because police had to rely on warrants to obtain information rather than improvising and having the information freely provided by the activists themselves. Instead of turning activists, a slide said, We rely on elicitation primarily.

Unlike law enforcement officers, private security operatives work outside of many constitutional restraints, such as those laid out in First Amendment law, said Verheyden-Hilliard. When you start to bring in these private entities, theyre also often operating as an illegal proxy force to be a hidden hand to do what official law enforcement may be restricted from doing, which is a lot of what were seeing here, she said. The fact that you have law enforcement that is commissioned by the state with the authority to use lethal force and to deprive people of their liberty that law enforcement is being informed in its actions by an entity whose pecuniary interest is in suppressing protest activity.

Cooperation along those lines was evident in the TigerSwanpresentation. Advanced warning of protester movement allowed TigerSwan security to liaise with local Law Enforcement (LE) in a timely manner, the documents said.

Theyre also often operating as an illegal proxy force to be a hidden hand to do what official law enforcement may be restricted from doing.

At fusion cells set up to imitate military regional operations centers, analysts combined data from their 24-hour media monitoring with the human intelligence collected on the ground to create maps of networks and detailed profiles of activists.

The product TigerSwan could offer, the presentation said, was more than just former military members who know how to break into a movement. Utilization of CI/HUMINT counterintelligence/human intelligence techniques and military fusion cells have allowed TigerSwan to develop proprietary databases on activists, the presentation stated.

And the data could be reused: TigerSwan analysts now have a well-developed intelligence picture of key bad actors, the groups they belong to, how they are funded, and where they come from, the PowerPoint read. This enormous amount of historical data is proprietary to TS.

The former intelligence operative scoffed at the idea that TigerSwans database contained meaningful threat information. So theres a databases of people and things and events thats so big it really doesnt mean anything, he said, but explained the claims: More threats made them moremoney. It was just promo to getcontracts.

TigerSwans path to expansion, however, was obstructed after The Intercepts investigations revealed the companys invasive, militaristic tactics. As its business suffered, TigerSwan fought to evade legal accountability.

Despite the internal company documentsincluded in the security board filing, TigerSwan and Reese have continued to deny they provided private investigative and security services in North Dakota. In June, in response to a list of questions posed by the North Dakota Private Investigative and Security Board with their discovery request, Reese submitted a lengthy affidavitchallenging accounts of TigerSwans activities. Did any of OUR employees provide investigative or security services in North Dakota. They did not. Anyone inside the camp providing investigative services were hired by someone else, Reese wrote on June 24. HUMINT does not mean they were in the camp. Those assigned as HUMINT were research/reports writers who focused on information from sources along the pipeline, Reese claimed, even though all three HUMINT operatives discussed infiltrating North Dakota camps in real time over WhatsApp.

As for McCollough, Reese declared, The intercept article alleges he was in ND and spent a few days in the Casino. We understand that he came on his own accord as he was writing an article. Mr. McCullough has had several articles published over the years on a variety of veteran views and activities. TigerSwan hired him for work in Iowa and North Carolina. Operation Baratheon was a PROPOSED idea that was NOT APPROVED BY TigerSwan. It was disapproved because TigerSwan was not licensed to do this type of private investigator work and our former military intel analyst were looking at this from their experiences abroad and not domestically.

As The Intercept has previously reported, McCollough did indeed follow the plan outlined in the document, and the new documents show that TigerSwan managers ran at least one similar operation. (According to an invoice, McColloughbilled $450 a day for his work as a human intelligence operative.)

The boards lawyer characterized Reeses claims as part of an attempt by TigerSwan to perpetuate a fraud on this court through their intentional misrepresentation and omissions related to Joel McCollough, Logan Davis, and Zach Perez. The judge agreed that sanctions would be necessary. For failing to provide full responses to discovery requests, she declared TigerSwan and Reese in default and said the board should apply an administrative fee.TigerSwan asked the board to reconsider, claiming that they had provided substantive answers to the requests and that they stood ready to provide additional information.

With TigerSwan continuing a years-long legal battle in response to the judges ruling the board suggested in a legal filing that TigerSwan seeks to win this action by attrition the two sides reached a settlement in September of this year. TigerSwan agreed to stay out of North Dakota and to pay a fine of $175,000 a fraction of the standard fines for violations laid out in the North Dakota Private Investigative and Security Boards complaint in exchange for admitting no wrongdoing.

The settlement did not, however, prevent TigerSwan from turning over 16,000 documents to the board about its activities at Standing Rock, putting them into the public record. Energy Transfer is now suing TigerSwan and the security board, claiming that the security company breached its contract by providing the material and that the board should return the material. A judge has granted a temporary straining order preventing North Dakota from providing citizens access to the material.

By the time the administrative case was settled, Reese had already moved on to new ventures. After Trumps election, a friend of Reeses at the Washington Examiner publishedan op-ed suggesting the TigerSwan chief ought to be appointed FBI director. At the same time, Reese fashioned himself into a right-wing pundit, commenting on relations with Russia, mass shootings, and the war in Syria all through a contributor gig at Fox News, where Trump might see him speak. Though the FBI job never materialized, this summer Reese obtained a U.S. government-approved contract to export oil from the Kurdish-controlled region of Northeast Syria, a deal the Syrian foreign ministry said amounts to the U.S. stealing Syrian oil.

Meanwhile, the idea that counterinsurgency tactics should be used to quell domestic uprisings has proliferated. David Kilcullen, a top war-on-terror adviser to the U.S. government, recently wrote that the nationwide uprisings in the wake of George Floyds killing might be viewed as an incipient insurgency. What happened at Standing Rock reveals the results such logic can produce.

Last month, private security firm Atlas Aegis put out calls for special operations veterans to apply to defend Minneapolis businesses and polling places during the November election from antifas. In response, Minnesota voting rights advocates sued the company, and the state attorney generals office launched its own investigation.

There has to be a crackdown, said Verheyden-Hilliard. Shesaid the big question would be whether legislatures would be willing to rein in security companies. Or do they just want to endorse and support a sprawling paramilitary, law enforcement, surveillance industry that has tentacles throughout the country and can act at the whim of any private corporation?

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Documents Detail TigerSwan Infiltration of Standing Rock - The Intercept