After spending more than 700 days under house arrest, a human rights and environmental lawyer was found guilty last month of criminal contempt in a legal saga that has demonstrated the deep-rooted conflicts of interest layered throughout the judicial system when it comes to climate justice. In Steven Donziger’s conviction, the initial judge who referred him to trial, the second judge who was asked to lead the trial, and the private prosecutors who tried him all had deep ties to Chevron, the company Donziger had won a landmark multibillion-dollar ruling against.
The story began in 2011 when Donziger brought litigation against Texaco (now Chevron) in Ecuador for the harm it caused the Indigenous people in the Ecuadorian Amazon, where the fossil fuel company decided to deliberately discharge 16 billion gallons of toxic waste from its oil sites into rivers, groundwater, and farmland. A refusal from Chevron to adhere to environmental regulations—which earned the company an extra $5 billion over 20 years—led to more than 30,000 Ecuadorians being directly harmed by the oil giant’s actions, the judges in that case found. The case Donziger led made it all the way to the Ecuador Supreme Court, and successfully secured $9.5 billion in environmental damages for the Amazonian communities in a historic climate justice decision.ADVERTISEMENT
In a letter sent to the Administrative Office of the U.S. Courts at the end of last month, Sens. Ed Markey and Sheldon Whitehouse brought into question specifically the use of private prosecutors in the contempt case against Donziger. The three prosecutors that Kaplan appointed, Brian Maloney, Sareen Armani, and Rita Glavin (who is also Andrew Cuomo’s personal lawyer), were all at the time with the law firm Seward & Kissel. That firm had represented Chevron as recently as 2018. “These prosecutions,” the senators wrote, “are highly unusual and can raise concerning questions of fundamental fairness in our criminal justice system.”
Indeed, the apparent conflict of interest the private prosecution had is directly at odds with Supreme Court precedent. In the 1987 decision of Young v. United States ex rel. Vuitton et Fils, the Supreme Court ruled that, when it comes to private prosecutors pursuing criminal contempt cases, they “certainly should be as disinterested as a public prosecutor who undertakes such a prosecution.”ADVERTISEMENT
“Public confidence in the disinterested conduct” of the private prosecutor, the court warned, is essential to maintaining the integrity of the judicial system. That means that even the appearance of interest on the part of the private prosecutor can be considered a violation of Vuitton.
“Appearances are really functionally important for the rule of law, and for our judiciary,” said Guha Krishnamurthi, an associate professor of law at the University of Oklahoma. Krishnamurthi argues that one of the “biggest protections” of the criminal justice system is a disinterested prosecutor who can determine whether or not pursuing a case is to the benefit of the criminal justice system. The fact that a public prosecutor is accountable to the government and to the public, he says, reinforces this protection in a way that private prosecutors do not.
“I think it’s such a clear abuse that it violates the defendant’s constitutional right to due process. You can’t have someone who’s got a conflict of interest, who has personal reasons for wanting to see a person they’re prosecuting convicted,” said Louis Raveson, a professor of law at Rutgers Law School and the founder of the university’s Environmental Law Clinic. “That’s not an appropriate procedure, and, in my view, it’s not a constitutional procedure.”
“This is a perversion of justice, the whole idea that you can have a lawyer who previously worked for Chevron then prosecuting Donziger in the criminal case,” said Martin Garbus, Donziger’s attorney and a prominent veteran of human rights litigation. “It’s clear that it violates the law. … If you look at the body of law that deals with disinterest, people are disqualified for something far, far less than the involvement here.”
Raveson acknowledged that in certain instances, like police brutality cases or other times when the government is being asked to prosecute itself, private prosecutors can be truly beneficial. A private prosecutor there would likely be necessary in order to ensure disinterest and justice, as the public prosecutor works for the government. Often, though, they’re used in cases like Donziger’s, after a disinterested public prosecutor declines to pursue the charge and the judge decides to move forward anyway. “That’s all the more reason that judges need to err on the side of no possibility of a conflict,” Raveson said. Speaking of the Donziger case, he added, “It appears that a conflict is almost inevitable … and clearly that’s not by accident.”ADVERTISEMENT
When it comes to the decisions that could prevent one of the largest climate justice judgments of the past decade from taking effect, such appearances of conflict of interest are incredibly significant—and could be detrimental to future climate justice litigation.
“It’s scary going after a large corporation [and] it’s scary going after governments because they have so much power and so much influence that they can do a lot of damage to someone’s life,” Raveson said. “If the lawyers who bring [environmental justice cases like Donziger’s] are subject to biased determinations as to whether or not they should be punished … it’s going to have a deterrent effect on lawyers to bring these kinds of cases.”
Such a deterrence could have massive consequences for the climate, especially at a time when, as this week’s new report from the Intergovernmental Panel on Climate Change showed, the world is barreling further toward climate catastrophe, a crisis that is driven in no small part by fossil fuel companies like Chevron. “It’s up to the judiciary to really ensure that that kind of chilling and deterrence … doesn’t happen,” Krishnamurthi added. “And the way you do that is by having more than just the formality of the rules, [but] having a true fidelity to conflicts of interest and disqualifying where necessary.”
In this Majority Report clip, we look at a stunning video of a black man berating an officer for pulling a gun on him after being pulled over. While the total authenticity of the video has yet to be confirmed, Sam Seder examines the video and commentates on how important cameras are in situations like this.
The goal was to prove American resolve in the face of Iranian attacks. Now, American officials have no doubt the Iranians will respond — but they don’t know how quickly, or how furiously.
President Trump’s decision to strike and kill the second most powerful official in Iran turns a slow-simmering conflict with Tehran into a boiling one, and is the riskiest move made by the United States in the Middle East since the invasion of Iraq in 2003.
The calculus was straightforward: Washington had to re-establish deterrence, and show the Iranian leadership that missiles fired at ships in the Persian Gulf and at oil facilities in Saudi Arabia, along with attacks inside Iraq that cost the life of an American contractor, would not go without a response.
But while senior American officials have no doubt the Iranians will respond, they do not know how quickly, or how furiously.
For a president who repeated his determination to withdraw from the caldron of the Middle East, the strike that killed Maj. Gen. Qassim Suleimani, who for two decades has led Iran’s most fearsome and ruthless military unit, the Quds Force, means there will be no escape from the region for the rest of his presidency, whether that is one year or five. Mr. Trump has committed the United States to a conflict whose dimensions are unknowable, as Iran’s supreme leader, Ayatollah Ali Khamenei, seeks vengeance.
“This is a massive walk up the escalation ladder,” wrote Charles Lister of the Middle East Institute. “With Suleimani dead, war is coming — that seems certain, the only questions are where, in what form and when?”
Bruce Riedel, the former C.I.A. officer who spent his life studying the Middle East, and is now at the Brookings Institution, said, “The administration is taking America into another war in the Middle East, bigger than ever.”
Yet it may not be a conventional war in any sense, since the Iranians’ advantage is all in asymmetric conflict.
Their history suggests they will not take on the United States frontally. Iranians are the masters of striking soft targets, starting in Iraq, but hardly limited to that country. In the past few years, they have honed an ability to cause low-level chaos, and left no doubt that they want to be able to reach the United States.
For now, they cannot — at least in traditional ways.
But they have tried terrorism, including an abortive effort nine years ago to kill a Saudi ambassador in Washington, and late Thursday, the Department of Homeland Security was sending out reminders of Iran’s past and current efforts to attack the United States in cyberspace. Until now, that has been limited to breaches on American banks and scrutiny of dams and other critical infrastructure, but they so far have not shown they have the abilities of the Russians or the Chinese.
Their first escalation may well be in Iraq, where they back pro-Iranian militias. But even there, they are an unwelcome force. It was only a few weeks ago when people took to the streets in Iraq to protest Iranian, not American, interference in their politics. Still, there are soft targets throughout the region, as the attacks on the Saudi oil facilities showed.
Complicating the management of a perilous moment is the president’s impeachment and the revival of Iran’s nuclear program.
Here’s how the situation developed over the last eight days.
It is only a matter of time before there are questions about whether the strike was meant to create a counternarrative, one of a conflict with a longtime adversary, while a Senate trial to determine whether to remove Mr. Trump begins. And already there are charges that the president overstepped, and that the decision to kill General Suleimani — if it was a decision, and the Iranian leader was not simply in the wrong convoy at the wrong moment — required congressional approval.
“The question is this,” Senator Christopher S. Murphy, Democrat of Connecticut, asked on Twitter as news of the strike spread. “As reports suggest, did America just assassinate, without any congressional authorization, the second most powerful person in Iran, knowingly setting off a potential massive regional war?”
Mr. Trump will argue that he was well within his rights, and that the strike was an act of self-defense. And he will have a strong argument: General Suleimani was responsible for the deaths of hundreds, if not thousands, of Americans in Iraq over the years, and doubtless was planning more.
The American announcement, from Defense Secretary Mark T. Esper, cited the general’s plans — which were not specified — as a justification for the action. If there was real intelligence of impending strikes, then the longtime principles of pre-emption, enshrined anew in American policy by President George W. Bush, would apply.
Mr. Trump walked away from the 2015 nuclear agreement more than a year ago, over the objections of many of his own aides and almost all American allies.
At first, the Iranians reacted coolly, and stayed within the limits of the accord. That ended last year, as tensions escalated.
Before the strike, they were expected to announce, in the next week, their next nuclear move — and it seemed likely to be a move closer to enrichment of bomb-grade uranium. That seems far more likely now, and poses the possibility of the next escalation, if it prompts American or Israeli military or cyberaction against Iran’s known nuclear facilities.
Once it buries General Suleimani, the Islamic Revolutionary Guards Corps — which oversaw the secret projects to build nuclear weapons two decades ago — may well determine that it is time to surge ahead. There is little question the United States is far less likely to challenge a country with an existing nuclear arsenal. The Iranians, like the North Koreans and the Pakistanis, could well take General Suleimani’s death as a warning about what happens to countries with no nuclear options.
Even those critical of the president’s nuclear move said they understood why the Iranian general was such a target.
“These guys are the personification of evil,” David H. Petraeus, the retired general who was an architect of the surge in Iraq, said in an interview Thursday night. “We calculated they were responsible for at least 600 deaths” of American soldiers.”
But Mr. Petraeus offered a caution.
“There will be an escalation,” he said. “I assume they have to do something. And the only question is, over time, have we created more deterrence than if we had not acted.”
Two years after Charlottesville, this Republican prosecutor is pioneering a new approach to convicting racist rioters
On June 28, in the main courtroom of Charlottesville’s federal courthouse, U.S. Attorney Thomas T. Cullen rose to his feet. It had been nearly two years since white supremacists brawled with counterprotesters at a violence-filled rally nearby; now, standing still and stoic, the tall, lean Cullen addressed the court regarding the sentencing of James Fields Jr. At the rally in August 2017, Fields, 22, had driven his Dodge Challenger into a crowd of peaceful protesters, maiming many and killing one. Having been convicted on federal hate crimes charges, Fields deserved nothing less than life in prison, Cullen argued.
From the courtroom’s wooden benches, Fields’s victims — who had come to testify about their broken bones, broken spirits and broken marriages; their lasting fear of cars, loud noises and even the light of day — listened intently. Never mind the defendant’s age and appeal for mercy, Cullen said. Hadn’t he described those who disagreed with his views as “monkeys,” “subspecies,” “kikes” and more on his social media accounts? Never mind his claim that he’d acted on impulse and without premeditation, that he’d had mental health problems. “We all face mental health issues,” Cullen pointed out, “but troubled people don’t just commit acts of mass murder or domestic terrorism.”
U.S. District Judge Michael Urbanski agreed. Fields stared blankly before him as his sentence was handed down: life in prison without parole. At the prosecution table, Cullen, his face set in its resting scowl, nodded briefly but didn’t look up from the notes he was jotting on his legal pad.
It was a win, but only a first step. Cullen, 15 months into his job as the chief federal prosecutor for the Western District of Virginia, is on a mission: to use the federal judiciary to strike a blow against mounting white nationalist violence. And nailing James Fields was arguably the easy part. The bigger challenge was the organized groups of white supremacists who had planned the massive rally with the intent to threaten and physically assault counterprotesters: How could they be held responsible?
Cullen and his prosecutors have set their sights on a white supremacist group called the Rise Above Movement, based in Southern California, charging four of its members with conspiracy to commit violence and crossing state lines to riot in Charlottesville. The prosecutors’ ironic weapon of choice against the extreme-right group: an anti-riot statute passed in the 1960s to rein in leftist Vietnam War protesters.
The case is the first time federal authorities have tried to disrupt a violent white supremacist terrorist organization on charges other than drug- or gun-dealing or murder. And it’s remarkable not just for the legal tactics involved, but because of the person carrying them out: Thomas Cullen, a Trump-appointed conservative prosecutor from a prominent Republican Virginia family. While the president and others in the GOP have mostly averted their gaze and refused to confront the phenomenon of white supremacy, Cullen is choosing to stare it down. “I could care less about politics,” he says. “Hate crimes and violence by white supremacist organizations that qualify as domestic terrorism are way up. Prosecuting them is common sense. It’s the right thing to do.”
A few weeks before the Fields sentencing, I met Cullen in a small, unadorned conference room on the first floor of the federal courthouse in Charlottesville. At 42, Cullen is easygoing and straightforward, with none of the bravado that many federal prosecutors display. He took office as the top federal lawman for the 46 counties and 17 cities of western Virginia on March 30, 2018. Except for a stint in private practice, he had served as an assistant U.S. attorney and deputy criminal chief in the Roanoke-headquartered office for the previous three years. “I felt pretty comfortable coming into this role,” he told me. “I certainly understood how the office worked.”
On his plate when he took over were
- opioid pill mills along the Interstate 81 corridor;
- organized gangs of Crips and Bloods in Danville, near the North Carolina line;
- drug dealers in the Shenandoah Valley; and the 2017 Unite the Right rally in Charlottesville. Cullen was away from Virginia on vacation when the rally and subsequent violence took place, but from the moment he was nominated for the top job, he knew that the issue was “one I need to be involved in.”
Within 24 hours, Assistant U.S. Attorney Christopher Kavanaugh, who lives in Charlottesville and works out of the branch office there, briefed Cullen on the evidence and possible charges. Fields had already been indicted on murder charges by the state, but to send a message, the office wanted him to face federal charges as well. Based on video, Fields’s vile social media feeds and witness testimony, prosecutors believed they had a clear shot at building a hate crime case against Fields under federal civil rights laws.
But there had to be more. “It was too big an event, too awful an event, for the federal government to have that one homicide case,” Kavanaugh told me. “We asked ourselves: What other prosecutions could come of this?”
He found an answer in the more than 5,000 hours of rally video turned over to federal law enforcement by bystanders, participants and journalists. Front and center in much of the action, assaulting and beating counterprotesters including women and clergy, were four men. “This one group of guys kept sticking out,” Kavanaugh says. “They acted in lockstep. Their hands were taped. They were more equipped to fight. They were involved when violence first broke out.” He wondered, “Who are these guys?”
A detailed October 2017 article by the nonprofit investigative news service ProPublica provided crucial information. It identified members of the Rise Above Movement, a virulent neo-Nazi white supremacist group. Founded in California in 2017, RAM had grown to about 20 members by the time of the Charlottesville rally, according to court documents. Its promotional videos show members fitness training, kickboxing and occasionally throwing copies of Anne Frank’s diary into bonfires on the beach. They aimed to build up members’ physical strength in order to punish “Jews,” RAM’s catchall word for anyone it considers an enemy. “Their whole mantra is going in the opposite direction of the image of the basement-dwelling chubby guy spewing hate on his laptop,” says Kavanaugh. “They were masculine, fit, sober, respectful. They had a certain look.”
The four men prosecutors zeroed in on included RAM co-founder Benjamin Daley, a wiry 25-year-old tree trimmer from Redondo Beach, Calif., who routinely bashed “Mark Zuckerberg and his Facebook Jew police” for taking down his anti-Muslim posts. Daley had hooked up with another ardent RAM member, Michael Miselis, a 30-year-old aerospace engineering doctoral candidate at UCLA who was working as a systems engineer for defense contractor Northrop Grumman in Redondo Beach. (Miselis lost his job — and his U.S. government security clearance — after he was named in a July 2018 ProPublica article.)
The problem for the U.S. attorney’s team was finding a federal statute they could charge the men under. According to Cullen and Kavanaugh, there are precious few laws available to federal law enforcement agencies and lawyers for investigating and prosecuting domestic terrorist groups for violent rhetoric — or even outright violence. Local and state police and courts can charge crimes of assault, robbery, threats and all manner of person-to-person violence, but the federal criminal code limits the FBI and all federal agencies to investigating broader conspiracies, fraud, gun and drug trafficking, and civil rights violations — which now includes hate crimes. In many cases, defendants must cross state lines to be found in violation of federal law.
Investigating domestic terrorism can put federal agents in even more disputed terrain. Academics, lawyers and judges contest the line where First Amendment rights of free speech end and conspiring to commit violence begins. Federal law enforcement agencies have long had to navigate that line, even as the demand to rein in domestic terrorist groups grows. “The FBI is under pressure to do something it can’t do something about,” says Adam Lee, former head of the FBI’s Richmond office and now head of security for Dominion Energy. “The FBI cannot target domestic terrorist groups like an international threat. The First Amendment absolutely forbids it.” (Progressive advocates, such as the Brennan Center for Justice, dispute this, arguing that the FBI readily investigates groups on the left that it views as subversive, including environmental groups, Black Lives Matter and others.)
Prosecutors were committed to bringing the RAM four to justice, but they did not believe proving a hate crime under federal statutes was their strongest possible case. Instead, digging into federal criminal laws, they found the 1968 Anti-Riot Act, passed by Congress to punish antiwar protesters who crossed state lines to incite a riot. “If we could prove,” says Kavanaugh, that the RAM members “had intent to commit violence and they traveled across state lines, we could build a case.” Cullen didn’t need a lot of persuading. He told his prosecutors to dust off the little-used law and charge the four RAM members with conspiracy to riot. It was, Cullen told me, “our only viable option.”
In the months after he took office, Cullen gradually came to the conclusion that white supremacists and far-right domestic terrorist groups like RAM are “grave threats” to the country — and are stepping up their violence. He interviewed victims, reviewed hundreds of hours of tape, read about the radical far right, and attended domestic terrorism meetings at the Justice Department. “The cumulative weight of the evidence opened my eyes,” he says. “I felt an obligation to protect the public, to take them off the street.”
That sense of obligation may come from his upbringing. Cullen was the eldest of four children in a conservative Republican family from Richmond. Public service was drilled in by his father, Richard Cullen, a former attorney general of Virginia and former U.S. attorney for Virginia’s Eastern District. “He’s my mentor and role model,” says Cullen. “A benefit and a burden.”
By many accounts, the elder Cullen, 71, is one of the most sought-after defense lawyers in the nation for powerful Republicans in need. (He recently represented Vice President Pence in Robert S. Mueller III’s investigation into possible Trump-Russia collusion.) But the self-described “small government, individual liberty-type Republican” also had close ties to former Virginia governor L. Douglas Wilder; in 1993, he worked with the Democrat to pass a law limiting handgun purchases in Virginia to one a month. “Thomas was always around people in public life,” Richard says. “But I did not try to shape his career.”
Thomas, for his part, had no particular yearning to follow in his father’s footsteps. After graduating from Furman University in South Carolina, he enrolled in William & Mary Law School. On his second day he phoned his father. “I’ve decided not to continue here,” he said. Cullen had looked around at his fellow students at orientation and was “scared out of my mind. I didn’t feel ready.”
A year of teaching English at a military prep school, however, convinced him that he was ready. He returned to William & Mary, earning a law degree in 2004. After graduating near the top of his class, he clerked for Roger Gregory, the first African American to serve on the U.S. Court of Appeals for the Fourth Circuit.
For his first job as federal prosecutor, Cullen headed to North Carolina. Four years later, in 2010, Tim Heaphy, the U.S. attorney for Virginia’s Western District, recruited him to run his criminal division. Heaphy, as it happened, was Richard Cullen’s former law partner. Cullen knew that his colleagues might be suspicious of his hiring. “I felt the pressure,” he says. “I just worked harder to establish myself.”
In July 2017 Cullen was working in private practice in Roanoke when the state’s two Democratic U.S. senators, Mark Warner and Tim Kaine, floated his name for the job as top federal prosecutor in the Western District. Trump nominated him in February 2018, and the Senate confirmed him the next month. The president had already declared that “there were fine people on both sides” of the violence in Charlottesville, a statement that seemed to bless violent white supremacists and neo-Nazis. Cullen would look to disprove that contention in court.
Afederal grand jury indicted James Fields on June 27, 2018. Fields was already in custody on state murder charges, but the RAM four were still out there, celebrated on white nationalist websites and gloating about their fighting prowess. “We had the[m] completely surrounded,” Daley wrote on his Facebook page of the torch-lit march on the U-Va. campus, according to court documents. “I hit like 5 people.” In the spring of 2018, Daley and Miselis traveled to Germany to celebrate Adolf Hitler’s birthday at the white supremacist Shield and Sword Festival.
On Aug. 27, 2018, Cullen and his team filed arrest warrants for Daley, Miselis, Gillen and White, supporting the complaints with photos and screen shots:
- White head-butting a clergyman, then
- cracking heads with a female counterprotester, leaving her with blood streaming down her face; Miselis, wearing a “Make America Great Again” hat turned backward,
- kicking a man as he’s falling;
- Daley grabbing a woman and body-slamming her to the ground.
Cullen asked the judge to keep the warrants sealed until prosecutors could organize the arrests. Then, in the early morning hours of Oct. 2, 2018, federal agents in Southern California raided the homes of Daley, Miselis and Gillen, and brought the men to federal court in Los Angeles. White was grabbed in San Francisco.
Kavanaugh went to California to help guide the arrests. “It was important to show our presence out there,” Cullen says. “It was our case. They were coming back here.” The four suspects, facing 10 years in prison — five for each of two federal rioting charges — were taken to the Central Virginia Regional Jail in Orange.
At a news conference in Roanoke, Cullen recognized ProPublica for providing a “starting point” for the federal investigation. But “we’re not finished,” he declared. “I commit as the U.S. attorney that we’re going to follow every lead until we’re satisfied that we’ve done all we can do.” He wanted to “send a message” to white supremacists, he said, putting them on notice that they could face federal criminal charges for violent actions.
Earlier this year, in a New York Times essay, Cullen decried the rise in far right extremism as “among the greatest domestic-security threats facing the United States” and lamented that “law enforcement, at both the federal and state levels, has been slow to respond.” Federal prosecutors, he wrote, needed additional tools, such as “a domestic-terrorism statute that would allow for the terrorism prosecution of people who commit acts of violence, threats and other criminal activities aimed at intimidating or coercing civilians.”
Cullen’s outspokenness risked rebuke from a White House, a president and a political party that have tended to avoid calling out white supremacists. He allows that he put himself “out on a limb,” but he got no negative feedback — and he has no regrets. “Violent domestic terrorism is becoming tragically more frequent,” he says. “We have to respond.”
Federal public defender Lisa Lorish immediately rebutted Cullen’s case against the RAM four. On behalf of Ben Daley, she filed a motion to dismiss. Calling the federal Anti-Riot Act “overbroad” and “unconstitutionally vague,” she argued that “it seeks to punish defendants for engaging in protected First Amendment freedoms of speech and peaceable assembly.”
Cullen fired back on March 8: “The First Amendment does not, and has never, protected incitement to violence or violent actions.” And: “Participation in a political rally does not grant individuals license to engage in mayhem.” On April 19, Cole White was freed after pleading guilty and agreeing to cooperate with the prosecution. On May 2, U.S. District Judge Norman Moon denied Lorish’s motion to dismiss. With the case proceeding and video evidence stacked against them, the three remaining RAM defendants pleaded guilty the next day. (Not long after, a California judge threw out a similar case based on the Anti-Riot Act for violating the First Amendment. If appealed, the two cases could wind up before the Supreme Court.)
Three months after pleading guilty, Daley, Miselis and Gillen shuffled into court for their sentencing, dressed in orange prison suits, their hands and feet in shackles. (White would be sentenced separately.) Several days earlier, Cullen had upped the ante, asking Moon to elevate their actions to hate crimes, which would add many months to their time behind bars. “It’s crucial that we send a message of deterrence for other militant white supremacists,” he told the court.
In March 6, 2018, the grand ballroom at the Sphinx Club in Washington was packed with aerospace-industry executives waiting to hear from Michael D. Griffin. Weeks earlier, Secretary of Defense James Mattis named the 69-year-old Maryland native the Pentagon’s under secretary for research and engineering, a job that comes with an annual budget of more than $17 billion. The dark-suited attendees at the McAleese/Credit Suisse Defense Programs Conference were eager to learn what type of work he would favor.
The audience was already familiar with Griffin, an unabashed defender of American military and political supremacy who has bragged about being labeled an “unreconstructed cold warrior.” With five master’s degrees and a doctorate in aerospace engineering, he was the chief technology officer for President Reagan’s Strategic Defense Initiative (popularly known as Star Wars), which was supposed to shield the United States against a potential Russian attack by ballistic missiles looping over the North Pole. Over the course of his career that followed, he wrote a book on space vehicle design, ran a technology incubator funded by the C.I.A., directed NASA for four years and was employed as a senior executive at a handful of aerospace firms.
Griffin was known as a scientific optimist who regularly called for “disruptive innovation” and who prized speed above all. He had repeatedly complained about the Pentagon’s sluggish bureaucracy, which he saw as mired in legacy thinking. “This is a country that produced an atom bomb under the stress of wartime in three years from the day we decided to do it,” he told a congressional panel last year. “This is a country that can do anything we need to do that physics allows. We just need to get on with it.”
In recent decades, Griffin’s predecessors had prioritized broad research into topics such as human-computer interaction, space communication and undersea warfare. But Griffin signaled an important shift, one that would have major financial consequences for the executives in attendance. “I’m sorry for everybody out there who champions some other high priority, some technical thing; it’s not that I disagree with those,” he told the room. “But there has to be a first, and hypersonics is my first.”
Griffin was referring to a revolutionary new type of weapon, one that would have the unprecedented ability to maneuver and then to strike almost any target in the world within a matter of minutes. Capable of traveling at more than 15 times the speed of sound, hypersonic missiles arrive at their targets in a blinding, destructive flash, before any sonic booms or other meaningful warning. So far, there are no surefire defenses. Fast, effective, precise and unstoppable — these are rare but highly desired characteristics on the modern battlefield. And the missiles are being developed not only by the United States but also by China, Russia and other countries.
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Griffin is now the chief evangelist in Washington for hypersonics, and so far he has run into few political or financial roadblocks. Lawmakers have supported a significant expansion of federal spending to accelerate the delivery of what they call a “game-changing technology,” a buzz phrase often repeated in discussions on hypersonics. America needs to act quickly, says James Inhofe, the Republican senator from Oklahoma who is chairman of the Armed Services Committee, or else the nation might fall behind Russia and China. Democratic leaders in the House and Senate are largely in agreement, though recently they’ve pressed the Pentagon for more information. (The Senate Armed Services Committee ranking member Jack Reed, a Democrat from Rhode Island, and House Chairman Adam Smith, the Democratic representative for Washington’s ninth district, told me it might make sense to question the weapons’ global impact or talk with Russia about the risks they create, but the priority in Washington right now is to get our versions built.)
In 2018, Congress expressed its consensus in a law requiring that an American hypersonic weapon be operational by October 2022. This year, the Trump administration’s proposed defense budget included $2.6 billion for hypersonics, and national security industry experts project that the annual budget will reach $5 billion by the middle of the next decade. The immediate aim is to create two deployable systems within three years. Key funding is likely to be approved this summer.
The enthusiasm has spread to military contractors, especially after the Pentagon awarded the largest one, Lockheed Martin, more than $1.4 billion in 2018 to build missile prototypes that can be launched by Air Force fighter jets and B-52 bombers. These programs were just the beginning of what the acting defense secretary, Patrick M. Shanahan, described in December as the Trump administration’s goal of “industrializing” hypersonic missile production. Several months later, he and Griffin created a new Space Development Agency of some 225 people, tasked with putting a network of sensors in low-earth orbit that would track incoming hypersonic missiles and direct American hypersonic attacks. This isn’t the network’s only purpose, but it will have “a war-fighting capability, should it come to that,” Griffin said in March.
Development of hypersonics is moving so quickly, however, that it threatens to outpace any real discussion about the potential perils of such weapons, including how they may disrupt efforts to avoid accidental conflict, especially during crises. There are currently no international agreements on how or when hypersonic missiles can be used, nor are there any plans between any countries to start those discussions. Instead, the rush to possess weapons of incredible speed and maneuverability has pushed the United States into a new arms race with Russia and China — one that could, some experts worry, upend existing norms of deterrence and renew Cold War-era tensions.
Although hypersonic missiles can in theory carry nuclear warheads, those being developed by the United States will only be equipped with small conventional explosives. With a length between just five and 10 feet, weighing about 500 pounds and encased in materials like ceramic and carbon fiber composites or nickel-chromium superalloys, the missiles function like nearly invisible power drills that smash holes in their targets, to catastrophic effect. After their launch — whether from the ground, from airplanes or from submarines — they are pulled by gravity as they descend from a powered ascent, or propelled by highly advanced engines. The missiles’ kinetic energy at the time of impact, at speeds of at least 1,150 miles per hour, makes them powerful enough to penetrate any building material or armored plating with the force of three to four tons of TNT.
They could be aimed, in theory, at Russian nuclear-armed ballistic missiles being carried on trucks or rails. Or the Chinese could use their own versions of these missiles to target American bombers and other aircraft at bases in Japan or Guam. Or the missiles could attack vital land- or sea-based radars anywhere, or military headquarters in Asian ports or near European cities. The weapons could even suddenly pierce the steel decks of one of America’s 11 multibillion-dollar aircraft carriers, instantly stopping flight operations, a vulnerability that might eventually render the floating behemoths obsolete. Hypersonic missiles are also ideal for waging a decapitation strike — assassinating a country’s top military or political officials. “Instant leader-killers,” a former Obama administration White House official, who asked not to be named, said in an interview.
Within the next decade, these new weapons could undertake a task long imagined for nuclear arms: a first strike against another nation’s government or arsenals, interrupting key chains of communication and disabling some of its retaliatory forces, all without the radioactive fallout and special condemnation that might accompany the detonation of nuclear warheads. That’s why a National Academies of Sciences, Engineering and Medicine report said in 2016 that hypersonics aren’t “simply evolutionary threats” to the United States but could in the hands of enemies “challenge this nation’s tenets of global vigilance, reach and power.”
The arrival of such fast weaponry will dangerously compress the time during which military officials and their political leaders — in any country — can figure out the nature of an attack and make reasoned decisions about the wisdom and scope of defensive steps or retaliation. And the threat that hypersonics pose to retaliatory weapons creates what scholars call “use it or lose it” pressures on countries to strike first during a crisis. Experts say that the missiles could upend the grim psychology of Mutual Assured Destruction, the bedrock military doctrine of the nuclear age that argued globe-altering wars would be deterred if the potential combatants always felt certain of their opponents’ devastating response.
This position worries arms-control experts like Thomas M. Countryman, a career diplomat for 35 years and former assistant secretary of state in the Obama administration. “This is not the first case of a new technology proceeding through research, development and deployment far faster than the policy apparatus can keep up,” says Countryman, who is now chairman of the Arms Control Association. He cites examples of similarly “destabilizing technologies” in the 1960s and 1970s, when billions of dollars in frenzied spending on nuclear and chemical arms was unaccompanied by discussion of how the resulting dangers could be minimized. Countryman wants to see limitations placed on the number of hypersonic missiles that a country can build or on the type of warheads that they can carry. He and others worry that failing to regulate these weapons at the international level could have irreversible consequences.
“It is possible,” the United Nations Office of Disarmament Affairs said in a February report, that “in response [to] the deployment of hypersonic weapons,” nations fearing the destruction of their retaliatory-strike capability might either decide to use nuclear weapons under a wider set of conditions or simply place “nuclear forces on higher alert levels” as a matter of routine. The report lamented that these “ramifications remain largely unexamined and almost wholly undiscussed.”
So why haven’t the potential risks of this revolution attracted more attention? One reason is that for years the big powers have cared mostly about numerical measures of power — who has more warheads, bombers and missiles — and negotiations have focused heavily on those metrics. Only occasionally has their conversation widened to include the issue of strategic stability, a topic that encompasses whether specific weaponry poses risks of inadvertent war.
An aerospace engineer for the military for more than three decades, Daniel Marren runs one of the world’s fastest wind tunnels — and thanks to hypersonics research, his lab is in high demand. But finding it takes some time: When I arrived at the Air Force’s White Oak testing facility, just north of Silver Spring, Md., the private security guards only vaguely gestured toward some World War II-era military research buildings down the road, at the edge of the Food and Drug Administration’s main campus. The low-slung structure that houses Marren’s tunnel looks as if it could pass for an aged elementary school, except that it has a seven-story silver sphere sticking out of its east side, like a World’s Fair exhibit in the spot where an auditorium should be. The tunnel itself, some 40 feet in length and five feet in diameter, looks like a water main; it narrows at one end before emptying into the silver sphere. A column of costly high-tech sensors is grafted onto the piping where a thick window has been cut into its midsection.
Marren seemed both thrilled and harried by the rising tempo at his laboratory in recent months. A jovial 55-year-old who speaks carefully but excitedly about his work, he showed me a red brick structure on the property with some broken windows. It was built, he said, to house the first of nine wind tunnels that have operated at the test site, one that was painstakingly recovered in 1948 from Peenemünde, the coastal German village where Wernher von Braun worked on the V-2 rocket used to kill thousands of Londoners in World War II. American military researchers had a hard time figuring out how to reassemble and operate it, so they recruited some German scientists stateside.
Inside the main room, Marren — dressed in a technologist’s polo shirt — explained that during the tests, the tunnel is first rolled into place on a trolley over steel rails in the floor. Then an enormous electric burner is ignited beneath it, heating the air inside to more than 3,000 degrees, hot enough to melt steel. The air is then punched by pressures 1,000 times greater than normal at one end of the tunnel and sucked at the other end by a vacuum deliberately created in the enormous sphere.
That sends the air roaring down the tunnel at up to 18 times the speed of sound — fast enough to traverse more than 30 football fields in the time it takes to blink. Smack in the middle of the tunnel during a test, attached to a pole capable of changing its angle in fractions of a second, is a scale model of the hypersonics prototype. That is, instead of testing the missiles by flying them through the air outdoors, the tunnel effectively makes the air fly past them at the same incredible pace.
For the tests, the models are coated with a paint that absorbs ultraviolet laser light as it warms, marking the spots on their ceramic skin where frictional heat may threaten the structure of the missile; engineers will then need to tweak the designs either to resist that heat or shunt it elsewhere. The aim, Marren explains, is to see what will happen when the missiles plow through the earth’s dense atmosphere on their way to their targets.
It’s challenging work, replicating the stresses these missiles would endure while whizzing by at 30 times the speed of a civilian airliner, miles above the clouds. Their sleek, synthetic skin expands and deforms and kicks off a plasma like the ionized gas formed by superheated stars, as they smash the air and try to shed all that intense heat. The tests are fleeting, lasting 15 seconds at most, which require the sensors to record their data in thousandths of a nanosecond. That’s the best any such test facility can do, according to Marren, and it partly accounts for the difficulty that defense researchers have had in producing hypersonics, even after about $2 billion-worth of federal investment before this year.
Nonetheless, Marren, who has worked at the tunnel since 1984, is optimistic that researchers will be able to deliver a working missile soon. He and his team are operating at full capacity, with hundreds of test runs scheduled this year to measure the ability of various prototype missiles to withstand the punishing friction and heat of such rapid flight. “We have been prepared for this moment for some time, and it’s great to lean forward,” Marren says. The faster that weapons systems can operate, he adds, the better.
Hypersonics pose a different threat from ballistic missiles, according to those who have studied and worked on them, because they could be maneuvered in ways that confound existing methods of defense and detection. Not to mention, unlike most ballistic missiles, they would arrive in under 15 minutes — less time than anyone in Hawaii or elsewhere would need to meaningfully react.
How fast is that, really? An object moving through the air produces an audible shock wave — a sonic boom — when it reaches about 760 miles per hour. This speed of sound is also called Mach 1, after the Austrian physicist Ernst Mach. When a projectile flies faster than Mach’s number, it travels at supersonic speed — a speed faster than sound. Mach 2 is twice the speed of sound; Mach 3 is three times the speed of sound, and so on. When a projectile reaches a speed faster than Mach 5, it’s said to travel at hypersonic speed.
One of the two main hypersonic prototypes now under development in the United States is meant to fly at speeds between Mach 15 and Mach 20, or more than 11,400 miles per hour. This means that when fired by the U.S. submarines or bombers stationed at Guam, they could in theory hit China’s important inland missile bases, like Delingha, in less than 15 minutes. President Vladimir Putin has likewise claimed that one of Russia’s new hypersonic missiles will travel at Mach 10, while the other will travel at Mach 20. If true, that would mean a Russian aircraft or ship firing one of them near Bermuda could strike the Pentagon, some 800 miles away, in five minutes. China, meanwhile, has flight-tested its own hypersonic missiles at speeds fast enough to reach Guam from the Chinese coastline within minutes.
One concept now being pursued by the Defense Advanced Research Projects Agency uses a conventional missile launched from air platforms to loft a smaller, hypersonic glider on its journey, even before the missile reaches its apex. The glider then flies unpowered toward its target. The deadly projectile might ricochet downward, nose tilted up, on layers of atmosphere — the mesosphere, then the stratosphere and troposphere — like an oblate stone on water, in smaller and shallower skips, or it might be directed to pass smoothly through these layers. In either instance, the friction of the lower atmosphere would finally slow it enough to allow a steering system to maneuver it precisely toward its target. The weapon, known as Tactical Boost Glide, is scheduled to be dropped from military planes during testing next year.
Under an alternative approach, a hypersonic missile would fly mostly horizontally under the power of a “scramjet,” a highly advanced, fanless engine that uses shock waves created by its speed to compress incoming air in a short funnel and ignite it while passing by (in roughly one two-thousandths of a second, according to some accounts). With its skin heated by friction to as much as 5,400 degrees, its engine walls would be protected from burning up by routing the fuel through them, an idea pioneered by the German designers of the V-2 rocket.
Officials will have trouble even knowing where a strike would land. Although the missiles’ launch would probably be picked up by infrared-sensing satellites in its first few moments of flight, Griffin says they would be roughly 10 to 20 times harder to detect than incoming ballistic missiles as they near their targets. They would zoom along in the defensive void, maneuvering unpredictably, and then, in just a few final seconds of blindingly fast, mile-per-second flight, dive and strike a target such as an aircraft carrier from an altitude of 100,000 feet.
During their flight, the perimeter of their potential landing zone could be about as big as Rhode Island. Officials might sound a general alarm, but they’d be clueless about exactly where the missiles were headed. “We don’t have any defense that could deny the employment of such a weapon against us,” Gen. John E. Hyten, commander of United States Strategic Command, told the Senate Armed Services Committee in March 2018. The Pentagon is just now studying what a hypersonic attack might look like and imagining how a defensive system might be created; it has no architecture for it, and no firm sense of the costs.
Developing these new weapons hasn’t been easy. A 2012 test was terminated when the skin peeled off a hypersonic prototype, and another self-destructed when it lost control. A third hypersonic test vehicle was deliberately destroyed when its boosting missile failed in 2014. Officials at Darpa acknowledge they are still struggling with the composite ceramics they need to protect the missiles’ electronics from intense heating; the Pentagon decided last July to ladle an extra $34.5 million into this effort this year.
The task of conducting realistic flight tests also poses a challenge. The military’s principal land-based site for open-air prototype flights — a 3,200-square-mile site stretching across multiple counties in New Mexico — isn’t big enough to accommodate hypersonic weapons. So fresh testing corridors are being negotiated in Utah that will require a new regional political agreement about the noise of trailing sonic booms. Scientists still aren’t sure how to accumulate all the data they need, given the speed of the flights. The open-air flight tests can cost up to $100 million.
The most recent open-air hypersonic-weapon test was completed by the Army and the Navy in October 2017, using a 36,000-pound missile to launch a glider from a rocky beach on the western shores of Kauai, Hawaii, toward Kwajalein Atoll, 2,300 miles to the southwest. The 9 p.m. flight created a trailing sonic boom over the Pacific, which topped out at an estimated 175 decibels, well above the threshold of causing physical pain. The effort cost $160 million, or 6 percent of the total hypersonics budget proposed for 2020.
In March 2018, Vladimir Putin, in the first of several speeches designed to rekindle American anxieties about a foreign missile threat, boasted that Russia had two operational hypersonic weapons: the Kinzhal, a fast, air-launched missile capable of striking targets up to 1,200 miles away; and the Avangard, designed to be attached to a new Sarmat intercontinental ballistic missile before maneuvering toward its targets. Russian media have claimed that nuclear warheads for the weapons are already being produced and that the Sarmat missile itself has been flight-tested roughly 3,000 miles across Siberia. (Russia has also said it is working on a third hypersonic missile system, designed to be launched from submarines.) American experts aren’t buying all of Putin’s claims. “Their test record is more like ours,” said an engineer working on the American program. “It’s had a small number of flight-test successes.” But Pentagon officials are convinced that Moscow’s weapons will soon be a real threat.
Analysts say the Chinese are even further along than the Russians, partly because Beijing has sought to create hypersonic missiles with shorter ranges that don’t have to endure high temperatures as long. Many of their tests have involved a glide vehicle. Last August, a contractor for the Chinese space program claimed that it successfully flight-tested a gliding hypersonic missile for slightly more than six minutes. It supposedly reached a speed exceeding Mach 5 before landing in its target zone. Other Chinese hypersonic missile tests have reached speeds almost twice as fast.
And it’s not just Russia, China and the United States that are interested in fast-flying military power drills. France and India have active hypersonics development programs, and each is working in partnership with Russia, according to a 2017 report by the Rand Corp., a nonpartisan research organization. Australia, Japan and the European Union have either civilian or military hypersonics research underway, the report said, partly because they are still tantalized by the prospect of making super-speedy airplanes large enough to carry passengers across the globe in mere hours. But Japan’s immediate effort is aimed at making a weapon that will be ready for testing by 2025.
This is not the first time the United States or others have ignored risks while rushing toward a new, apparently magical solution to a military threat or shortcoming. During the Cold War, America and Russia competed fiercely to threaten each other’s vital assets with bombers that took hours to cross oceans and with ballistic missiles that could reach their targets in 30 minutes. Ultimately, each side accumulated more than 31,000 warheads (even though the detonations of just 100 weapons would have sparked a severe global famine and stripped away significant protections against ultraviolet radiation). Eventually the fever broke, partly because of the Soviet Union’s dissolution, and the two nations reduced their arsenals through negotiations to about 6,500 nuclear warheads apiece.
Since then, cycles of intense arms racing have restarted whenever one side has felt acutely disadvantaged or spied a potential exit from what the political scientist Robert Jervis once described as the “overwhelming nature” of nuclear destruction, a circumstance that we’ve been involuntarily and resentfully hostage to for the past 70 years.
Trump officials in particular have resisted policies that support Mutual Assured Destruction, the idea that shared risk can lead to stability and peace. John Bolton, the national security adviser, was a key architect in 2002 of America’s withdrawal from the Anti-Ballistic Missile Treaty with Russia, which limited both nations’ ability to try to block ballistic missiles. He asserted that freeing the United States of those restrictions would enhance American security, and if the rest of the world was static, his prediction might have come true. But Russia started its hypersonics program to ensure it could get around any American ballistic missile defenses. “Nobody wanted to listen to us” about the strategic dangers of abandoning the treaty, Putin said last year with an aggressive flourish as he displayed videos and animations of his nation’s hypersonic missiles. “So listen now.”
But not much listening is going on in either country. In January, the Trump administration released an updated missile-defense strategy that explicitly calls for limiting mutual vulnerability by defeating enemy “offensive missiles prior to launch.” The administration also continues to eschew any new limits on its own missiles, arguing that past agreements lulled America into a dangerous post-Cold War “holiday,” as a senior State Department official described it.
The Obama administration’s inaction helped open the door to the 21st-century hypersonic contest America finds itself in today. “We always do these things in isolation, without thinking about what it means for the big powers — for Russia and China — who are batshit paranoid” about a potential quick, pre-emptive American attack, the adviser said, expressing regret about how the issue was handled during Obama’s tenure.
While it might not be too late to change course, history shows that stopping an arms race is much harder than igniting one. And Washington at the moment is still principally focused on “putting a weapon on a target,” as a longtime congressional staff member put it, rather than the reaction this capability inspires in an adversary. Griffin even projects an eventual American victory in this race: In April 2018, he said the best answer to the Chinese and Russian hypersonic programs is “to hold their assets at risk with systems similar to but better than what they have fielded.” Invoking the mantra of military scientists throughout time, Griffin added that the country must “see their hand and raise them one.” The world will soon find out what happens now that the military superpowers have decided to go all in.
The outgoing attorney general did more to enact the president’s priorities than any other member of the Cabinet, but that didn’t save him from White House hostility.
The paradox of Jeff Sessions’s tenure as attorney general is that no member of the Trump administration was so beleaguered and disparaged by President Trump, but no member got as much done.Even as he endured persistent verbal abuse from the president, Sessions steamed forward on a range of conservative social-policy priorities, aggressively reorienting the Justice Department’s stances on immigration, civil rights, and criminal justice, among other issues. In an administration plagued by incompetent and ineffective figures, Sessions was a paragon of efficacy—a distinction that horrified his many opponents, but did nothing to win Trump’s trust or affection.
- When it came time for Trump to pull the plug on the Deferred Action for Childhood Arrivals program, as he had promised he would during the 2016 campaign, the president got cold feet, but Sessions was happy to be the public face of the withdrawal. It was Sessions who
- tried to follow through (unsuccessfully) on Trump’s threat to cut off funding to sanctuary cities. It was Sessions who issued new guidance to immigration judges. And, most prominent, it was Sessions who
- went to the border to announce the Trump administration’s decision to separate migrant children from their parents.
Sessions openly said the plan to split families up was intended to deter migrants, even as other administration officials said otherwise. The policy was met with widespread and appropriate horror, and Trump eventually pulled back—but he had backed the plan before that, and Sessions had followed through... But these weren’t just Sessions’s pet issues. They were Trump’s as well. Hardline immigration policies, giving police free rein, fighting phantom voter fraud—these were all signature Trump projects. Sessions had been the first U.S. senator to endorse Trump, and Trump took from him a range of policy concepts—especially on immigration—as well as a top adviser, Stephen Miller. But Sessions’s stewardship of those projects didn’t return him to favor with Trump, who, according to Bob Woodward’s book Fear, called Sessions “mentally retarded” and a “dumb Southerner.”.. When McGahn’s departure was announced in August, I wrote that he’d been the most effective person in the West Wing, through his stewardship of judicial appointments. But Trump disliked and distrusted McGahn, and seemed eager to have him gone... Of course, the same issue poisoned both Sessions’s and McGahn’s relationships with Trump: the Russia investigation, and especially Special Counsel Robert Mueller’s takeover of it... Trump was angry that neither man had protected him. He raged at Sessions’s lack of “loyalty” and complained that Attorney General Eric Holder had “totally protected” Barack Obama. (What he meant by that is unclear.) He twice instructed McGahn to fire Mueller, and McGahn twice refused, once threatening to resign... Attorney General Matthew Whitaker assumes control of Mueller’s probe. Whitaker was outspokenly critical of the special counsel’s inquiry before joining the administration, so Trump may now have a leader of the Justice Department who is more pliable on the Mueller front. But the president is unlikely to find an attorney general who will do as much to move his priorities forward as Sessions did—and the new attorney general will come into the job knowing that loyalty and efficacy aren’t enough to garner favor with Trump.
The United States has been conducting “offensive cyber operations” to defend next week’s midterm elections, though it was “too soon to tell” whether they are having an effect, White House national security adviser John Bolton said Wednesday.
Though Bolton did not specify the operation’s nature, U.S. Cyber Command has begun signaling to Russian operatives that their identities are known — an implicit warning not to attempt to disrupt American politics. The Washington Post and other media reported on those developmentslast week.
The offensive cyber actions were aimed at “defending the integrity of our electoral process . . . and our adversaries [had] better know that and better understand that,” said Bolton, speaking in Washington at an event sponsored by the Alexander Hamilton Society.
.. Brett Bruen, a former National Security Council official who has worked on countering Russian disinformation, called signaling “a pretty ineffective” warning shot. “What we have seen over recent months have been largely superficial steps, mostly for domestic consumption, to be able to say that we are doing something,” he said.