Restoring voting rights after a felony is rare in Tennessee. This year, the process got harder.

Tennessee’s felony disenfranchisement rate was second only to Mississippi’s before recent guidance further complicated the path to restoring voting rights. Restoration advocates seek to roll back the new rules, as well as achieve changes they say are long overdue.

Photo credit: Michael Fleshman

Janiqua Thompson was in her early 20s when she began stealing from the hotel she worked for. Her motivation was to catch up on bills to support her mother and three younger brothers, but her felony conviction only added more financial strain. She spent a day in jail and three years on probation, faced $20,000 in restitution fees and lost her voting rights.

“I made a decision that impacted my family way worse than I thought it would,” Thompson, now 28, said. “I let a temporary circumstance control my future.”

With her probation behind her and a three-year-old daughter to raise, Thompson wants to regain her voting rights. She wants a say in the leaders shaping her country and community and to feel like a full citizen again. But now, along with the more than 470,000 Tennesseans with felony convictions excluded from the polls, she faces a voting rights restoration process made more difficult in recent months.

“I would love to have a voice,” Thompson said. “I just want to be able to change things for my kid.”

In at least 35 states, those with felony convictions can vote again after their full sentence is complete, and several states have eased the path to voting rights restoration in recent years. But in Tennessee, where financial and logistical hurdles already prevent many from regaining their rights, the process has become harder. In July, Tennessee officials issued new guidance mandating that instead of choosing between two paths of restoration, those with felony convictions would need to complete both.

Nearly 10% of the voting population in Tennessee is excluded from the polls because of felony convictions, a rate second only to Mississippi and one that especially affects people of color. One in five Black Tennessee residents is unable to vote because of a felony conviction, the highest rate in the nation.

“We have already had, before this new rule, the most complex voter restoration laws of any state,” said Dawn Harrington, founder of Free Hearts in Nashville that supports families navigating incarceration. “This is a huge obstacle that has been put in front of us.”

The Tennessee Secretary of State’s office reported that nearly 3,350 Tennesseans regained their voting rights since 2018, which is fewer than one percent of those disenfranchised with a felony conviction who have completed their sentences.

The new guidance has further slowed the pace of restoration but has also spurred a new sense of urgency around the issue. Free Hearts and other reentry support groups have begun collaborating across the state to educate more attorneys on the process and to push harder for action from lawmakers and Gov. Bill Lee.

“This is a big moment for shining the light on a process that has long been broken,” Blair Bowie, a director at Washington, D.C.-based Campaign Legal Center, said. “This new guidance really exposes just how big of a problem Tennessee has with felony disenfranchisement.”

‘There is no process in place’

For decades, Tennesseans with felony convictions could regain voting rights by receiving a pardon or by restoring their citizenship rights in court. In 2006, lawmakers added another alternative: complete a certificate verifying all legal debts were paid and child support was up to date. Tennessee Elections Coordinator Mark Goins cited a June Tennessee Supreme Court decision in recently declaring that the two existing paths are both required.

The 2006 option had become the preferred path for Tennesseans seeking to restore their voting rights. The citizenship restoration process, now step one, can take several months and typically requires help from an attorney. Lawyers often gather dozens of pages of documentation to present to the judge, including letters of recommendation and certificates from programs completed during incarceration. Prosecutors can again testify against an individual, and approval is up to a judge’s discretion, which can be intimidating for many who were previously convicted. A court appearance also means new court fees. In Memphis and in Nashville, the amount is about $160.

“Some folks, they just don’t want to have to relitigate anything about their case again. They don’t want to have to stand in judgment again,” said Keeda Haynes, a Free Hearts legal advisor in Nashville. “It can be very triggering for folks.” She added, “People are not going to have the money for the filing fees and people are not going to have the money to pay a lawyer.”

Few online resources are available on how to file a petition for citizenship restoration. Staff at the Davidson County Circuit Court Clerk’s office said petition forms were not yet available but they could be drawn up. In more rural Coffee and Benton counties, circuit court staff did not have information on how to proceed with the citizenship restoration petition.

When Shelby County Office of Re-Entry Director DeAndre Brown sought to help his Memphis clients with voting rights ahead of the recent city elections, he found few officials could advise him on the citizenship petition process. He created a court filing form that Thompson and others used to file for a court date and a Memphis nonprofit agreed to pay the court fees.

“We reached out to the clerk’s office and the (district attorney’s) office and no one was really sure on what to do,” Brown said. “Really, there is no process in place, no standard that people can just look to. Everyone has questions and since they have questions, no one really wants to do it the wrong way. So, people just didn’t do it.”

The cost of voting rights

If Thompson gains a judge’s approval for citizenship, she will then have to complete the second part of the voter restoration process by certifying her legal debts have been paid. While she said she feels confident going before a judge again, she is less certain on how she will cover the more than $1,000 in court debt and any restitution or probation fees still owed. She said she made payments during her probation by waiting tables and turning to family and friends for support. The amount owed could not be confirmed through multiple calls to probation authorities.

“I just basically worked as much as I could,” Thompson said “It was really hell. I’m still getting my life together, even now.”

Tennessee is one of about 10 states that tie voting rights to legal financial obligations and it is the only state that requires child support payments are up to date, according to 2022 research by the Sentencing Project. For some individuals, the debt owed is insurmountable and can be as high as six figures, Harrington said. Many formerly incarcerated individuals, because of their convictions, struggle to find work and to cover the cost of basic needs like housing, food and transportation, making legal costs especially challenging to resolve.

Beyond the requirements, the process itself poses hurdles to individuals and is the subject of a federal lawsuit filed against Tennessee. In the 2022 complaint, plaintiffs described the process as “a wild-goose chase” and demanded new safeguards to ensure a uniform and responsive system.

For each felony conviction, individuals must gain signatures from a parole or probation officer, and sometimes a county court clerk, whose willingness and training varies by county. If restoration is denied, there is no appeals process. For those with out-of-state convictions, completing the restoration documents can mean road trips, plane flights or multiple days off work. Several convictions, including murder and rape, are permanently disqualified.

“It’s so inaccessible and opaque and error ridden,” said Bowie, who is representing the plaintiffs in the 2022 federal lawsuit. “The process is just a huge mess.”

Law students who had begun helping Tennessee clients pursue the 2006 certificate process prior to the new guidance, have begun also compiling lengthy citizenship petitions for those who still want to move forward and more legal groups are joining these efforts, said Joy Radice, director of University of Tennessee’s Legal Clinic in Knoxville. A pro-bono attorney who might have helped 10 clients at clinics, now is likely to focus on just one.

“We have definitely had to be strategic about slowly helping a smaller number of clients because of this change,” Radice said. “From our clients’ perspective, it’s extremely discouraging.”

Since July, Tennessee Secretary of State Tre Hargett’s office has recorded 40 denials for voting rights restoration and one approval. About 35 Tennesseans have gained voting rights by expunging their convictions, a process available to some felonies after certain time periods. Hargett’s office declined to comment on the new voting rights guidance because of the ongoing litigation.

Still, Radice is heartened by the response she has seen from legal leaders and activists since July. The Tennessee Supreme Court’s Access to Justice Commission is launching a pilot project on civil rights restoration in January and has begun training law students and attorneys for the project. Free Hearts continues a letter writing campaign on the issue and brought together advocates from across the state in September to determine next steps.

“It feels like there is more energy, and my hope is that that will lead to attention that will lead to legislative change,” Radice said.

‘We need the Governor to act’

Harrington is looking directly to Lee for action. Iowa Gov. Kim Reynolds, also a Republican, issued an executive order in 2020 restoring voting rights for those with felony convictions who completed their sentences, with the exception of homicide offenses. Harrington discussed the concept with members of Lee’s and Reynolds’s staff in March and said Lee’s officials seemed receptive to the concept. That was before the Secretary of State’s office made the voting process more challenging.

“We need the Governor to act,” Harrington said.

Lee, who has long pushed for criminal justice reform and reentry support, said in October he is not considering an executive order, but he encouraged Tennessee lawmakers to discuss potential changes to voting rights laws.

♦In Tennessee, there are more than 377,000 disenfranchised residents with felony convictions who have completed their sentences.

♦Fewer than 1 percent, or nearly 3,350 Tennesseans, have had their voting rights restored since 2018. n Tennessee, nearly 10 percent of the voting age population is disenfranchised from a felony conviction, ranking second in the nation. Only Mississippi ranks higher. The national rate is 2 percent.

♦Tennessee leads the nation with the highest disenfranchisement rate of Black residents with felony convictions, at 21 percent. Nationally, the rate is 5 percent.

♦Tennessee leads the nation with the highest disenfranchisement rate of Latinx residents with felony convictions, at 8 percent. The national rate is less than 2 percent.

“At least have the conversation, make sure that the General Assembly is engaged in that,” Lee said. “It’s much more appropriate to use the process of legislation to do that.”

For voting rights advocates, reversing the new guidance from Goins legislatively is imperative, but it is just the minimum of fixes needed in Tennessee. “A bill that just goes back to the system we had last year is not enough,” Bowie said.

Lawmakers on both sides of the aisle have sought changes to the restoration process for years. In 2019, two Republican lawmakers unsuccessfully pushed to reinstate voting rights for those who completed their sentences, regardless of their ability to pay civil or criminal fees, and to streamline the process of restoration. Similar legislation was introduced in 2021 and 2023 by Democrat lawmakers, including State Sen. Raumesh Akbari.

“Your financial situation should not impact your ability to vote and exercise your voice,” Akbari said. “We have talked about the power of redemption and the purpose of the justice system. Surely, someone should not have to be abridged to their right to vote for the rest of their lives.”

Some victims’ rights advocates disagree that the path to restoration should be eased. Verna Wyatt, co-founder of Tennessee Voices for Victims, supports those who have been able to restore their rights through the current process, but she also wants individuals with felony convictions to have to gain approval after a certain period of time following their conviction.

“People should be able to earn back their voting rights. I don’t think it should be something that is automatic.” Wyatt said, speaking for herself and not her organization. “They broke trust with the community and, many times, they broke trust in a very, very big way. That’s part of accountability and consequences.”

Republican House Speaker Cameron Sexton said he would need more details on potential legislation before determining his support. He disagreed with the term “disenfranchisement” to describe those who lost their vote because of a felony offense.

“They disenfranchised themselves by committing the crime,” Sexton said. “I don’t consider the state disenfranchising them when they are the ones who committed the crime.”

Although her probation sentence is behind her, Thompson says she still faces the ramifications of her crime whenever she applies for a job or a rental to live in. Voting rights is one more consequence she wants to move past.

“My mistake was done seven years ago,” Thompson said. “It’s really an ongoing battle. You start to wonder, when are they going to stop punishing us?”

This article originally appeared in the Tennessee Lookout on December 7th, 2023.  

Photo credit: Michael Fleshman

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Dems Unveil Bill to Guarantee Incarcerated Citizens Right to Vote, Common Dreams

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Dems Unveil Bill to Guarantee Incarcerated Citizens Right to Vote

"This bill champions inclusion and representation, which are vital for community reintegration and public safety," said one supporter.

Members of the National Voting in Prison Coalition and other advocacy groups on Wednesday welcomed the introduction of Democratic legislation that would end felony disenfranchisement in federal elections and guarantee incarcerated U.S. citizens the right to vote.

"Too often, citizens behind the wall and those with a record are wrongfully stripped of their sacred right to vote and denied the opportunity to participate in our democracy," said U.S. Rep. Ayanna Pressley (D-Mass.), who is leading the bill with Sen. Peter Welch (D-Vt.).

Pressley stressed that "with Republicans and the Supreme Court stopping at nothing to undermine voting rights and exclude Black and brown folks from participating in our democracy, we must protect and expand access to the ballot box—including for incarcerated citizens."

"As someone whose family has been personally impacted by mass incarceration, I'm proud to partner with Sen. Welch on the Inclusive Democracy Act to ensure everyone can make their voice heard in our democracy," she added. "Momentum is growing in states across the country and Congress must follow suit by swiftly passing this crucial legislation."

The National Voting in Prison Coalition—made up of over two dozen groups including the Campaign Legal Center, Center for Popular Democracy, Common Cause, Dēmos, Stand Up America, and the Sentencing Project—said that "the Inclusive Democracy Act stands as a beacon of hope for the more than 4.6 million Americans currently disenfranchised due to criminal convictions."

"The Inclusive Democracy Act of 2023 is a long-overdue step towards fulfilling the promise of our democracy, where every American has a voice and a stake in shaping our nation's future," the coalition continued.

Some coalition members also put out their own statements of support. Common Cause's Keshia Morris Desir said that "the Inclusive Democracy Act takes significant steps to help end the racist and discriminatory practice of felony disenfranchisement that grips communities of color."

Stand Up America's Sunwoo Oh called felony disenfranchisement "a stain on American democracy" and pledged that the group's nearly 2 million members "are ready to do whatever we can to push this legislation forward at the federal level."

Nicole D. Porter of the Sentencing Project noted that "not only is expanding voting rights the morally correct thing to do—it is also effective policy: For people who have been impacted by the criminal legal system, restoring voting rights has been linked to reduced recidivism, as it helps them rehabilitate and reintegrate into civic life."

According to its sponsors, the bill would:

• Guarantee the right to vote in federal elections for citizens who have criminal convictions;
• Require state and federal entities to notify individuals who are convicted, incarcerated, on probation, or on parole of their right to vote in federal elections;
• Outline the process for citizens in carceral settings to register to vote by mail, if registration is required by their state;
• Outline the process for citizens in carceral settings to vote by mail, including protecting and prioritizing election mail, curing ballots with mistakes, and casting a provision ballot;
• Ensure citizens in carceral settings have access to information about elections through mechanisms available to them such as the internet, campaigns, and third-party groups;
• Provide guidance to state officials to not prosecute citizens in carceral settings who complete an election ballot that includes an election they are not eligible to vote in; and
• Provide a private right of action to enforce this legislation.

"This bill champions inclusion and representation, which are vital for community reintegration and public safety," said David Ayala of the Formerly Incarcerated Convicted People & Families Movement. "It ensures that the voices of those directly impacted by the criminal legal system shape federal policies, addressing reentry challenges effectively."

Jeremiah Mungo of More Than Our Crimes declared that "every American deserves a voice in their homeland."

The new bill is backed by 17 other House Democrats as well as Sens. Ed Markey (D-Mass.) and Bernie Sanders (I-Vt.) but is unlikely to pass the GOP-controlled lower chamber or split Senate. Despite the odds, lawmakers have also unveiled other voting rights measures throughout the year, including the Freedom to Vote Act and the John R. Lewis Voting Rights Advancement Act.

This article originally appeared in the Common Dreams on December 7th, 2023.  

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This land is our land: States crack down on foreign-owned farm fields

BY: KEVIN HARDY

As foreigners buy up American agricultural land, lawmakers want to keep certain countries out.

Andy Gipson gets concerned even when American allies such as the Netherlands and Germany invest in large swaths of Mississippi’s farmland.

“It just bothers me at a gut level,” he said.

For Gipson, Mississippi’s commissioner of agriculture and commerce, the growing trend of foreign ownership could threaten what he views as the state’s most valuable asset: the land that grows its forests, rice and cotton.

“It is our ability as a country, as a state to produce our own food, our own fiber and our own shelter,” he told Stateline. “And I think every acre that’s sold to anybody outside of this country is one less acre that we have to rely on for our own self-interest, our own national food security.”

Gipson has spent recent months studying the growing amount of his state’s farmland being bought up by foreign interests. He chaired a study committee that just issued a 363-page report on the issue requested by the legislature after a lawmaker had offered a bill to completely ban foreign purchases.

Since its constitution was approved in 1890, the state has had provisions restricting land ownership by “nonresident aliens,” the report noted. But the committee concluded current state law “lacks a clear, workable enforcement mechanism.” The U.S. Department of Agriculture reports that foreign interests held some 757,000 acres of Mississippi’s agricultural land, about 2.5% of the total. Gipson hopes the Republican-led legislature will stiffen the law in the upcoming session.

“I think the time is going to be right in 2024 for the legislature to tighten these laws up,” he said.

If the legislature acts, Mississippi will join a growing group of states seeking to ban or further restrict foreign ownership of farmland. Lawmakers are targeting nations considered hostile to U.S. interests, such as China and Russia, and looking for new enforcement measures. Many see Arkansas as leading the latter push; officials there invoked a new law in October that bans certain foreign owners and ordered a Chinese seed company to divest its land.

Nearly half the states have some restrictions on the books, some of them dating back to the 1700s.

Every acre that’s sold to anybody outside of this country is one less acre that we have to rely on for our own self-interest, our own national food security.

– Andy Gipson, Mississippi commissioner of agriculture and commerce

While the debate is as old as the nation itself, the issue has been reinvigorated in recent years after Chinese firms purchased land near military installments in North Dakota and in Texas, said Micah Brown, an attorney at the National Agricultural Law Center at the University of Arkansas who tracks the issue.

Brown said lawmakers in 36 states proposed some sort of legislation on the issue this year, ranging from caps to bans to targets on certain countries, with measures passing in about a dozen of them. More bills are expected in upcoming sessions.

Some lawmakers and experts warn that such laws could go too far, making it difficult for some farmers to sell their land, discouraging economic development, or even leading to discrimination against certain groups of people such as Asian Americans.

Foreigners held an interest in about 40 million acres of U.S. agricultural land at the end of 2021, according to the U.S. Department of Agriculture. Canadian investors own the largest share of that acreage, followed by investors from the United Kingdom and Europe. Foreign ownership represents only about 3.1% of all privately held U.S. agricultural land. But the number is quickly rising: Foreign ownership has increased more than 50% in the past decade, Brown said.

But USDA data shows Chinese ownership is still relatively rare: Chinese interests own less than 1% of the nation’s foreign-held agricultural acreage.

Federal law currently does not regulate foreign ownership land beyond requiring foreign buyers to register with the USDA. But there is bipartisan interest in Congress in tighter restrictions and reporting on foreign ownership.

At the state level, much of the legislation has been proposed by Republicans, though Brown said it’s largely enjoyed bipartisan support — particularly when bills target ownership by nations considered hostile to American interests.

“It’d be pretty difficult for someone to step out and say, ‘Hey, I don’t think we should restrict North Korea.’ … That’s kind of where some of the politics comes into this. It looks like you’re achieving something. There’s been a lot of bipartisan support on these efforts.”

Arkansas leads on enforcement

In October, Arkansas Republican Gov. Sarah Huckabee Sanders invoked the war between Israel and Hamas as she announced her state was taking its first action against foreign ownership of agricultural land.

Sanders described America’s “enemies,” naming not just Hamas, but also China, Iran and Russia as “on the march.”

“Yet for too long in the name of tolerance we’ve let these dangerous governments infiltrate our country,” she said. “Arkansas will tolerate them no longer.”

The state ordered seed and pesticide maker Syngenta to sell 160 acres of land it owns in Northeast Arkansas and uses for research. Legislation passed during the 2023 session barred certain foreign countries from owning farmland and enabled the state to seek judicial foreclosure for those found in violation. The attorney general’s office said it was to date the only known property covered by the new law.

Syngenta, which was given two years to sell its property, did not respond to a Stateline request for comment. The company previously criticized the Arkansas action as “shortsighted.”

Last month, Arkansas Attorney General Tim Griffin, a Republican, announced that Syngenta had paid a $280,000 civil penalty for failing to register with the state as required under legislation passed in 2021. 

“This serves as a warning to all other Chinese state-owned companies operating in Arkansas — I am investigating these types of properties throughout the state and will exercise all powers afforded to my office under the law,” he said in a statement last month. 

Based in Switzerland, Syngenta was bought by ChemChina, a state-owned entity, in 2017.

Republican state Sen. Blake Johnson said he was unaware of Syngenta’s acquisition when he sponsored both pieces of legislation. He said the laws were broadly aimed at protecting national security.

“Our food safety is paramount to the national defense, in my opinion: feeding, clothing ourselves and our military if need be in the future,” he said. “That can be done by our own land. We don’t need to outsource that to our enemies.”

Johnson said he was careful to target the legislation at unfriendly nations. It applies to the same countries named in the International Traffic in Arms Regulations, federal rules that restrict weapons from certain adversarial nations. He noted that friendly nations are exempt: Canada, for instance, owns large swaths of timberland in southern Arkansas.

“That’s not a problem under this law,” he said.

The Arkansas action was closely watched by officials in neighboring Mississippi.

“To date, Arkansas is the only state that has actually enforced a law like this,” said Gipson, the Mississippi agriculture commissioner. “I like the way they did it.”

But he said there are plenty of complications.

Mississippi doesn’t want to hinder important agricultural research, Gipson said. Nor does it want to dissuade investments such as Japanese-based Nissan’s giant assembly plant in Canton.

“Some of the states have had unintended consequences and we don’t want to have those, obviously,” he said.

Republican state Rep. Bill Pigott, who also served on the study committee, said he’s working on legislation that he thinks will pass in 2024.

A farmer who raises peanuts, corn and cattle, Pigott said he has not heard from other farmers about the issue, though he said many constituents are concerned.

“People who listen to the news and watch TV — they seem to be more concerned about it than actually the farmers themselves,” he said. “I do get people ask if we are doing anything.”

Pigott said the legislation will aim to target hostile nations such as China and Russia. Currently, investors from the Netherlands are the largest foreign owners in Mississippi, followed by Germany.

“Almost nobody has any concern with that,” he said. “It is the hostile nations, and No. 1 on that list is China.”

Striking a balance

In opening a U.S. Senate hearing in September, Michigan Democratic Sen. Debbie Stabenow acknowledged that the nation’s food system is an integral component of national security.

With more foreign entities buying up land, she said, the issue deserves scrutiny. But she offered a warning:

“We must also be cautious of our history of barring immigrants from owning land in our country and ensure efforts to protect our national and economic security do not encourage discrimination,” she said.

During hearings on foreign-owned agricultural land in Topeka, Kansas, state Rep. Rui Xi, a Democrat and the only Chinese American in the state House, in September warned about rhetoric casting suspicion on Asian Americans such as grad students lawfully admitted to the United States.

“If we want to take a look at foreign investment in ag land and it’s narrow, that’s great,” Xi said. “If you try to cast a shadow and it continues to cast suspicion on people who are here innocently who are just trying to learn, who are trying to attend our universities, I think that’s where we really, really need to urge caution.”

While more American agricultural land is being bought up by foreign interests, it’s generally not governments that own it, said David Ortega, a food economist at Michigan State University. Syngenta garnered plenty of attention in Arkansas, but it’s more common for foreign individuals and firms to buy land as investments, he said.

So far, Ortega said, there’s no evidence that foreign purchases have raised ag prices or pose any threat to American food security.

Ortega said policymakers should consider carefully the potential effects of new laws on the broader agricultural economy. China, for instance, is often targeted by legislators. But it’s also the largest buyer of American agricultural exports and could retaliate against American farmers.

“It’s far easier for China to find a new source to buy [from] than it is for us to find new export markets,” he said in an interview.

Ortega said there are specific, local concerns about foreign ownership worth addressing. And while there are many good-faith debates occurring, he does worry that the conversation could lead to discrimination of groups such as Chinese Americans.

“I don’t think that the root cause of lawmakers’ concerns over this issue is rooted in xenophobia,” he said. “But I am worried that the way this issue is talked about can lead to xenophobia and those types of issues. And that’s why I and others are urging caution.”

Since Congress has not enacted any legislation, state lawmakers say they are willing to act.

“While I would prefer we send one message from our Congress to address this issue, that’s beyond the scope of what I can do,” said Georgia state Rep. Clay Pirkle, a Republican. “What I can do is formulate a state response to this issue.”

Pirkle grows cotton, peanuts, rice and butterbeans on about 1,000 acres in southern Georgia. Earlier this year, he introduced legislation in Atlanta that would prevent nonresident aliens from purchasing farmland near military bases if they were from nations deemed adversarial by the U.S. Department of Commerce — a list that currently includes China, Cuba, Iran, North Korea and Russia. The bill didn’t progress, but Pirkle plans to pursue it again next session.

He said crafting legislation on the matter is complicated because he does not want Georgia to dissuade purchases from people who have fled other countries for the United States.

“I really made every effort to avoid unintentional consequences of folks from these countries that have come to the United States because they really desire liberty and freedom,” he said. “And I wanted to make sure that I did not unduly burden them.”

But Pirkle believes something needs to be done. American agricultural land is not a renewable resource. And developers continue to encroach on farmland for the development of new housing and industry.

“The land that we have that we grow crops on to feed the world is the land that we have in ag production,” he said. “We’re not making any more, and it is a scarce resource.”

This article originally appeared in the Stateline.org on November 28th, 2023.  

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Press Relayed Israeli Claims of Secret Hospital Base With Insufficient Skepticism

A cover image of the New York Post (11/16/23) depicted a supposedly shocking find. The headline “Guns Behind the MRI Machine” accompanied a photo of what Israeli troops had allegedly uncovered: Hamas guns at Al Shifa Hospital in Gaza.

On the Post cover were fewer than a dozen AK-47s and matching magazines, as well as a few tactical vests. In its subhead, the Post called this “proof Hamas used hospital as  military base in stunning war crime.”

Many other media outlets reported Israel’s claims—and accompanying photos and videos the IDF offered as evidence—with little pushback other than Hamas’s denials and an acknowledgment that the outlet could not independently verify the claims. “IDF ‘Found Clear Evidence’ of Hamas Operation out of Al-Shifa Hospital, Says Spokesperson,” was an NBC News headline (11/15/23); Fox News (11/15/23) had “Watch: Israel Finds Weapons, Military Equipment Used by Hamas in Key Gaza Hospital After Raid, IDF Says.”

Israel’s assault on Al Shifa hospital provoked widespread international outrage, so a great deal hinged on its claim that the hospital was being used as a military base. But there are many reasons to question this display of weaponry, questions that imply that not only did the Israeli military make a weak case, but that some media outlets and pundits were too quick to take this presentation at face value.

The laws of war

Israeli computer animation (YouTube, 10/27/23) depicting what was claimed to be “the main headquarters for Hamas’ terrorist activity” beneath Al Shifa Hospital.

While civilian infrastructure, and in particular medical infrastructure, are protected under the laws of war, the Israeli government claimed that the hospital’s protection was nullified because Hamas was using it as a military base, using the medical staff and patients as human shields.

The IDF released a 3D animation (YouTube, 10/27/23) depicting Al Shifa as “the main headquarters for Hamas’ terrorist activity,” with a warren of underground chambers hiding crates of weapons, missiles, barrels and meeting rooms bedecked with Islamic flags.

The US government supported this line of thinking (ABC News, 11/16/23). The Wall Street Journal editorial board (11/14/23) spelled out the argument:

The law of war in this case is clear: Under the Fourth Geneva Convention, Hamas’s use of Al Shifa for military purposes vitiates the protected status granted to hospitals. Israel is still required to give warning and use means proportionate to the anticipated military advantage, and it has.

But the law of war is not, in fact, clear in the way the Journal claims. “Even if there is a military facility operating under the hospital, this does not allow Israel to bomb the site,” the Israeli human rights group B’Tselem (11/7/23) said in a statement before the hospital raid.

Even if a hospital were used for “acts harmful to the enemy,” that does not give that enemy “the right to bombard it for two days and completely destroy it,” Mathilde Philip-Gay, an expert in international humanitarian law at France’s Lyon 3 University, told the Guardian (11/17/23).

“Even if the building loses its special protection, all the people inside retain theirs,” Rutgers Law School international law expert Adil Haque told the Washington Post (11/15/23). “Anything that the attacking force can do to allow the humanitarian functions of that hospital to continue, they’re obligated to do.” The director of the hospital, Mohammad Abu Salmiya, said that 179 patients died while the facility was surrounded by Israeli forces and had to be buried in a mass grave (Al Jazeera, 11/14/23). (Abu Salmiya was later arrested by Israeli forces along with other Palestinian medical personnel—Al Jazeera, 11/11/23.)

After the raid, viewing the evidence, Human Rights Watch was not at all persuaded. “Hospitals have special protections under international humanitarian law,” said Human Rights Watch UN director Louis Charbonneau (Reuters, 11/16/23):

Doctors, nurses, ambulances and other hospital staff must be permitted to do their work and patients must be protected. Hospitals only lose those protections if it can be shown that harmful acts have been carried out from the premises. The Israeli government hasn’t provided any evidence of that.

“The IDF says attacks are justified because Hamas fighters use the hospital as a military command center,” Amnesty International Australia (11/27/23) noted. “But so far, they’ve failed to produce any credible evidence to substantiate this claim.”

Shrugging off skepticism

The Washington Post‘s Jennifer Rubin (11/20/23) dismissed demands that Israel produce evidence of the “command-and-control center” it said justified its assault on the Al Shifa hospital.

Washington Post columnist Jennifer Rubin (11/20/23) shrugged off skepticism of the evidence presented about the hospital, scorning critics who demanded proof that the hospital was a “command center”—which she dismissed as “a generic term without definition and without legal significance.” Rubin insisted: “It was used as a military facility. Period.”

AP (11/23/23), however, pointed out that it was the Israeli military, not the military’s critics, who had promised evidence that the hospital served as “an elaborate Hamas command-and-control center under the territory’s largest healthcare facility.” After the hospital’s capture, former Israeli Prime Minister Ehud Olmert told Euronews (11/17/23) that Al Shifa was not Hamas’s headquarters after all: “Khan Younis, which is in the southern part of Gaza Strip, is the real headquarters of Hamas,” he said.

Another Post columnist, Kathleen Parker (11/17/23), admitted that details of the military’s find were scarce and that perhaps media shouldn’t jump to conclusions, but then immediately said the photographic release “seems” to vindicate Israel:

As media teams try to understand what's hapening there, details are few, leaving much room for speculation and/or affirmation of one's preferred narrative. 

Even so, the video, which has been replayed by dozens of news outlets, seems to confirm what Israel has long claimed that Hamas uses innocent Palestinians as barricades by installing their headquarters and arsenals beneath schools, hospitals and other public institutions in a vast complex of subterranean tunnels.

About that supposed headquarters beneath the hospital: While Israel showed off images of a “tunnel” uunder the hospital, Newsweek (11/15/23) pointed out that it’s long been known that the facility had an extensive sub-basement—because it was built by Israel in 1983.

Catastrophe for hospitals

Middle East Eye (11/15/23): “While Israel says its military has been conducting a ‘precise and targeted operation’ at Al Shifa, Palestinians at the hospital say civilians trying to flee have been fired upon.”

Israel’s assault on Gaza has generally been a catastrophe for Gaza hospitals (UN News, 11/13/23; BBC, 11/13/23), and there has been considerable damage to Gaza hospitals in previous Israeli assaults (Guardian, 3/24/09; Newsweek, 7/30/14; Guardian, 5/16/21).

And the Israeli operation at the hospital was certainly stunning. The Middle East Eye (11/15/23) reported:

Troops broke through the northern walls of the complex, instead of entering via the main gate to the east, as around 2 am local time on Wednesday, according to local sources and health officials.  

They went building to building inside the large facility, removing doctors, patients and displaced people to the courtyards before interrogating them, Middle East Eye has learned. 

Some people were stripped naked, blindfolded and detained, according to doctors who spoke to Al Jazeera Arabic, one of the few international channels with access to sources within the hospital.

This isn’t to say media outlets shouldn’t scrutinize what Hamas fighters do in civilian areas, but there is a lack of skepticism in media—especially for television news and tabloids that depend on gripping photography—when it comes to Israel’s presentation of its findings in Gaza that lead to more murkiness.

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Research assistance: Pai Liu, Keating Zelenke

Originally published on FAIR.org, December 1st, 2023. Reprinted with permission.     

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