Pro Publica

by Christie Thompson

Last Saturday, ex-sniper Chris Kyle and fellow veteran Chad Littlefield were shot and killed at a Texas gun range. The accused shooter is a former Marine, who sources say suffered from PTSD after serving in Iraq. 

The murder has reignited conversation on the mental trauma suffered by hundreds of thousands of U.S. service men and women in Iraq and Afghanistan. Last week, the Department Veterans Affairs reported (PDF) that an estimated 22 veterans committed suicide per day in 2010. Suicides hit a record-high of 349 in 2012, and more active-duty soldiers died by suicide than in combat last year.

The wars may be winding down, but the battle against PTSD is far from over. We’ve compiled some of the best journalism on the mental traumas faced by a generation of service men and women, and the U.S. military’s struggle to treat them. 

Is PTSD Contagious?, Mother Jones, January 2013
When veterans return bearing the scars of war, what happens to the families supporting them? Mac McClelland digs deep into studies that suggest spouses, children and other family can show the same symptoms of PTSD.

Suicides Highlight Failures of Veterans’ Support System, The Bay Citizen/New York Times, March 2012
In the Bay Area, poor communication at the Department of Veterans Affairs has led to many desperate veterans falling through the cracks. Even with an elite PTSD center stationed in Palo Alto, some suicidal vets were turned away or prematurely discharged. Reporter Aaron Glantz has done extensive coverage on the VA as it struggles to serve the influx of veterans returning from Iraq and Afghanistan. 

Aftershock: The Blast That Shook Psycho Platoon, ProPublica and NPR, March 2012
As part of our Brain Wars series, we investigated a bomb blast that left five platoon members battling both traumatic brain injuries and PTSD. Their story illustrates a growing number of veterans facing psychological and cognitive difficulties: studies show an estimated 20 to 25 percent of military members that have served in Iraq or Afghanistan suffer some sort of TBI, PTSD, or a combination of those two injuries.

Welcome Home: The Story of Scott Ostrom (photo essay), Denver Post, December 2011
Photographer Craig Walker followed former Marine Scott Ostrom’s struggle to return to civilian life after two tours in Iraq. “Where do I find my peace after experiencing something like that?” Ostrom asks. “Is my peace just the absence of war?”

Brain Injuries Remain Undiagnosed in Thousands of Soldiers, ProPublica and NPR, June 2010
In 2010, we launched a joint investigation with NPR into the invisible war wounds left untreated in thousands of service members. The army’s screening system routinely missed signs of concussion and other brain injuries, leaving tens of thousands of soldiers without needed care. Beyond physical and cognitive damages, TBI can also cause behavioral problems in affected soldiers. 

After Combat, Victims of an Inner War, New York Times, August 2009
Two soldiers were killed in this single unit of the National Guard, but four would eventually take their own life. Their story speaks of the larger spike in soldier suicides during the Iraq War. In 2009, 310 soldiers killed themselves, a record surpassed in 2012.

'I am under a lot of pressure to not diagnose PTSD,' Salon, April 2009
Reporters Michael de Yoanna and Mark Benjamin obtained a secret recording of a doctor saying he’d been discouraged from diagnosing PTSD, and told to treat veterans for anxiety disorder instead. (The Seattle Times covered a similar scandal at Madigan Health Services on the West Coast, which was under congressional investigation for its resistance to diagnosing PTSD.) As the cost of treating veterans’ trauma mounts, some say the military is looking for ways to keep the VA’s bill to a minimum. Benjamin and de Yoanna have covered PTSD and the military extensively, including a series of stories for Salon on the military mistreatment that contributed to multiple murders and suicides among soldiers. 

Walter Reed and Beyond, Washington Post, February 2007
Anne Hull and Dana Priest spotlighted systemic mistreatment and neglect at Walter Reed Army Medical Center, and several other veterans health facilities across the country. Vets seeking psychological care faced dizzying bureaucracy and an under-resourced system buckling under high demand. Though Walter Reed was home to the army’s largest psychiatric department, there was no specific PTSD center, and patients rarely received individual attention.

What did we miss? Let us know what stories you would include in the comments section. 

by Nikole Hannah-Jones

UPDATE: The U.S. Department of Housing and Urban Development issued the final rule (PDF) on disparate impact under the Fair Housing Act today. In doing so, the agency formalized for the first time a national standard for establishing when housing practices that disproportionately harm racial minorities, the disabled and other protected groups violate civil rights law.

For the past four decades, federal officials and civil rights lawyers have wielded a potent legal weapon in the fight against housing discrimination. Even when they couldn't prove that practices of landlords, lenders or governments were racially motivated, they could win cases by showing minorities had suffered disproportionate harm.

The Obama administration has used the principle of "disparate impact" to reach record settlements with banks accused of discriminatory lending and to confront localities whose housing policies limited opportunities for black and Latino renters. A senior official recently said that the U.S. Department of Housing and Urban Development is pursuing more than two dozen cases based on the theory.

Those cases, and others brought by civil rights groups and other agencies, could soon be halted in their tracks. For the second time in two years, the Supreme Court is poised to review a case that challenges whether the concept of "disparate impact" can be used to enforce the 1968 Fair Housing Act.

Officials from the U.S. Department of Justice and HUD, the agency charged with enforcing the housing law, have repeatedly declined ProPublica's interview requests. But Sara Pratt, HUD's chief of enforcement, bluntly told attendees at a recent conference on housing issues that the disparate impact standard is essential for deterring housing bias because the days of "pants-down discrimination" have ended.

"Landlords, housing professionals, zoning and planning boards, have learned to stop talking about it," Pratt declared. "What they haven't learned is to stop doing it."

Over the past year, Obama administration officials have become increasingly concerned that the high court is preparing to strike down the use of the disparate impact standard in housing cases. In an attempt to dissuade the justices from intervening, the Obama administration is preparing to release a long-stalled federal rule this month that enshrines "disparate impact" in the regulations for enforcing the federal housing law.

The move comes as the Supreme Court, led by its conservative majority, appears set to curtail affirmative action and the Voting Rights Act, two other tent poles of the civil rights movement.

Disparate Impact, A Lynchpin of Enforcement

The principle of disparate impact is not directly mentioned in the landmark Fair Housing Act but has been accepted over a period of 40 years by a series of federal judges who have ruled on housing cases.

Housing advocates have been urging HUD to adopt the regulation for years. Because the Supreme Court has long deferred to an agency's regulations when interpreting the law, Alan Jenkins, executive director of the nonprofit The Opportunity Agenda in New York City, said it "could be the deciding factor, not only in what disparate impact means, but whether it exists after going before the Supreme Court."

In 2011, federal officials persuaded the city of St. Paul, Minn., to withdraw a case accepted for review by the Supreme Court that questioned whether the principle could be applied in housing cases. "We were afraid we might lose disparate impact in the Supreme Court because there wasn't a regulation," said Pratt, who also led fair housing enforcement during the Clinton administration.

If the court strikes down disparate impact, it would largely limit civil rights lawsuits against landlords, homeowners or governments to those rare cases in which it could be proven that governments or businesses had an explicit intent to discriminate.

"If the court overturns disparate impact," said Florence Roisman, a fair housing scholar at the Indiana University School of Law. "It is going to gut the statute."

Release of the regulation sometime this month will set a tone for President Obama's second term and several scholars said it would be among the most important civil rights regulations to come out of HUD in at least a decade. But its release may be too late to influence the high court's ruling.

Key Battles in Countrywide, Katrina Cases 

Even without the regulation, the Obama administration has aggressively pursued disparate impact cases.

Under President Obama, the Justice Department created a unit to focus on discriminatory behavior in the banking industry and has used disparate impact to win massive settlements.

In one such case, the Justice Department found that Countrywide — a now-defunct mortgage company purchased by Bank of America — charged black and Latino borrowers higher rates and fees than white applicants with similar credit histories. It also discovered that black and Latino borrowers who qualified for prime loans were more than twice as likely to be steered to subprime loans as similar white borrowers.

Countrywide issued no official policy telling loan officers to discriminate. But it did give them discretion to steer well-qualified buyers into less favorable loans. In what Assistant Attorney General Thomas Perez called "discrimination with a smile," that authority was used largely on loan applications from African Americans and Latinos. Bank of America could not produce a legitimate business practice to explain the discriminatory results, a defense against an action brought under the disparate impact standard. The bank settled with the Justice Department for $335 million in 2011 — a record in a residential lending case. It did not acknowledge wrongdoing.

In another major case, a private fair housing group and later the federal government used the disparate impact standard to challenge policies adopted by St. Bernard's Parish, La., after Hurricane Katrina.

As residents of largely black New Orleans sought to find housing in St. Bernard's, a predominantly white enclave just across the border, the parish passed a law that prohibited homeowners from renting to anyone who was not a "blood relative" unless they received a permit from local authorities.

Since 93 percent of the homeowners in the parish were white, the government argued that the laws aimed at restricting rental housing would have disproportionately prevented people of color from moving in.

"Do you think St. Bernard's parish was really trying to keep black people out?" Pratt asked at the housing issues conference. As heads began to nod, she asked, "Does anyone have any evidence?"

The administration, which has seen the fight over disparate impact building for several years, promised early in Obama's first term that it would issue a regulation.

Advocates cheered. Then they waited. And waited.

Mondale Warns Against Supreme Court Decision

By 2011, a case that had been winding its way through the lower courts landed at the Supreme Court.

A group of landlords had sued St. Paul claiming that its stepped up property code enforcement violated the Fair Housing Act because it reduced the availability of low-income rental units and had a disparate impact on black residents.

Since the landlords were essentially arguing that the anti-discrimination laws gave them a right to not maintain apartments in black areas, the city of St. Paul fought the suit.

The U.S. Court of Appeals for the Eighth Circuit ruled the landlords had made a valid disparate impact claim, prompting St. Paul to appeal, arguing that the Fair Housing Act required proof of discriminatory intent and not simply discriminatory results.

A week after the Supreme Court agreed to hear the case in November 2011, HUD finally released a proposed regulation, which set a single standard for proving violations of the Fair Housing Act. The proposed rule codifies within federal regulations the ban on practices that have discriminatory effects unless they can be shown to serve a legitimate purpose for business or government.

Although all 11 appellate courts that have ruled on the issue have held that the Fair Housing Act allows disparate impact claims, the Justice Department and housing advocates feared the conservative majority on the Supreme Court would not agree.

Minnesota native son former Vice President Walter Mondale, who helped write the 1968 law, urged St. Paul's mayor to withdraw the case. According to news accounts, Mondale called disparate impact the only means of effectively enforcing laws against housing discrimination and asked the city not to risk a "Supreme Court decision that ruins the act."

The Justice Department agreed not to intervene in two unrelated lawsuits against the city, a move now under investigation by congressional Republicans who say the administration offered the concession to persuade St. Paul to drop the disparate impact suit.

St. Paul acquiesced, and in February 2012 the parties took the rare step of withdrawing the case from the Supreme Court's docket.

The Fight From Big Business

Meanwhile, lobbyists for the influential banking, lending, and insurance industries launched a broad campaign against the draft rule.

Robert Detlefsen, vice president of public policy for the National Association of Mutual Insurance Companies, said his organization, which represents home insurers, opposes the regulation because it would place an unfair burden on companies to prove that policies that harm one group more than another are not discriminatory.

Businesses should not be penalized "because of a statistical disparity," Detlefsen said. "As long as it could be shown that there was no intent to discriminate racially or ethnically, there should be no controversy."

The American Bankers Association, the National Multi Housing Council and the Mortgage Bankers Association either declined or did not respond to interview requests from ProPublica.

The business community's pushback seemed to work.

"The proposal was on the table last year at this time. As you got into July and August, the White House just let it be known that 'We just can't do it in this political season,'" said Robert Schwemm, a constitutional law and civil rights scholar at the University of Kentucky Law School. "Just to rattle off the groups that have decided to oppose it is to list some of the most powerful groups in Washington, even with a Democratic administration.

"The Obama administration delayed, delayed, delayed."

Pratt acknowledged as much during her presentation. "The industry doesn't like it. They are scared of it," she said. "Disparate impact is incredibly controversial politically. It is not controversial legally."

With Obama fighting his final re-election battles in October, the Supreme Court signaled that it might take up the issue again. The Court asked the U.S. Solicitor General to submit the government's stance on disparate impact in a case involving the New Jersey township of Mount Holly. It has not yet decided to hear the case.

An Eleventh-Hour Effort

At issue is the town's efforts to redevelop a predominantly black area it considered blighted. The town bought and destroyed most of the homes in the neighborhood but has not built the new housing. Former and current residents sued, saying the town's actions had a disparate impact on African Americans.

After a court ruled the plaintiffs had a valid disparate impact claim, Mount Holly appealed to the Supreme Court, arguing as St. Paul had that Congress did not write disparate impact into the fair housing statute and therefore did not intend to allow it to be used as a legal standard.

Mount Holly's appeal did not shake the regulation loose — to the dismay of some observers. "It is enormously important that HUD promulgate this statute," said Roisman. "Frankly, I think it is unconscionable that HUD hasn't done it in the last four years — they should have done it long before that." Most scholars interviewed for this story believe that Justices John Roberts, Clarence Thomas and Samuel Alito would strike down disparate impact, but are less sure about the stances of Justices Antonin Scalia and Anthony Kennedy. One of them would have to join the Court's liberal block if disparate impact were to survive.

Scalia indicated in a previous case involving employment that he was open to an argument that disparate impact in any arena violated the equal protection clause of the Constitution. However, Scalia, who was an administrative law scholar before becoming a constitutional law scholar, has also said he believes in deference to agency regulations.

But several legal scholars pointed out that the Court's track record under Chief Justice Roberts provides little certainty that it will follow that precedent.

john a. powell, a civil rights scholar at the University of California, Berkeley Law School, said the Supreme Court would not normally take a case such as this one where the lower courts are unanimous in their interpretation of the law. But powell, who spells his name without capital letters, said this court has shown an eagerness to dismantle civil rights protections even when case law is well established — one reason for concern that HUD's new regulations may not stand.

"If [the Supreme Court] is going to ignore the circuits and decades of precedents from the federal courts, I don't know that it is going to be turned around by the regulation of an agency," powell said. "It is not waiting on controversy in the lower courts, which is the normal case. If it strikes down disparate impact that would be a huge change, but the Court is rewriting issues around civil rights and race."

The administration's 11th-hour release of the regulation may have served mostly to rally the opposition. Detlefsen said his group did not file briefs opposing disparate impact in the St. Paul case, but likely will if the Court takes up the Mount Holly case. "The regulation has gotten the attention of a lot of people in the insurance industry," he said. "Absolutely."

Civil rights advocates are watching, too.

"The search for racists is for the most part a fool's errand. There is no way in a court of law to prove or know what is in someone's hearts or minds," Damon Hewitt, an attorney at the NAACP Legal Defense and Education Fund, said at the housing conference. "The preoccupation with disregarding racially disparate impact means people are willing to accept racial disparities and then say there is nothing the law should do about it."

Keep up with our investigations by following us on Facebook and Twitter, or read more about the Fair Housing Act, and how the government betrayed a landmark civil rights law. 

by Justin Elliott

Feb. 7, 9:30 p.m. This post has been updated.

A congressional ethics investigation into a Democratic representative’s trip to Taiwan found “substantial reason to believe” the trip violated federal law because it was paid for by the Taiwanese government.

The investigation was launched following a ProPublica story on the 2011 trip by Rep. Bill Owens, D-N.Y., and his wife. The probe was conducted by the Office of Congressional Ethics, an independent body made up of former members of Congress and other citizens that can make recommendations to the official House ethics committee.

Along with releasing the independent report, the official committee said Wednesday it is still reviewing the matter to determine whether to launch its own full-blown investigation. The committee could ultimately recommend penalties to the full House.

At the heart of the Owens case is the question of who paid for and organized the trip to Taiwan. Members of Congress are barred from accepting most gifts, including travel expenses, from foreign governments. (That rule goes back to a constitutional ban on such gifts.) Lobbyists also may not organize most congressional trips, a reform instituted after the Jack Abramoff scandal.

Owens’ office originally said the trip — which included stays at luxury hotels, visits to tourist attractions, and meetings with Taiwanese officials — was paid for by a school called the Chinese Culture University. But ethics investigators found “substantial reason to believe” that the trip was in fact paid for by the Taiwanese government, “resulting in an impermissible gift, in violation of federal law and House rules.” Investigators also found substantial reason to believe that the Owens trip was organized by Taiwan’s lobbyists. 

A response from the Washington law firm retained by Owens, Perkins Coie, disputed the report’s findings. Owens announced after ProPublica’s story came out last year that, “in an abundance of caution,” he was reimbursing the university for the $22,000 cost of the trip.

Disclosure forms show 15 congressional staffers and representatives taking similar trips to Taiwan and also with the Chinese Culture University listed as the sponsor. The trips go back to 2006 and total roughly $125,000 in expenses.  

Taiwan has many interests before the U.S. government, for example its perennial goal to acquire more advanced weaponry as part of the billions of dollars in annual American arms sales to the country. Taiwanese President Ma Ying-jeou raised the issue of acquiring new F-16 jets in his meeting with Owens.

Taiwan is behind only Israel on the list of popular foreign destinations for congressional trips, according to LegiStorm, which tracks travel data. Another school there, Fu Jen Catholic University, has reported paying more than $500,000 for dozens of trips since 2005.

Neither Taiwan nor the Chinese Culture University cooperated with investigators from the Office of Congressional Ethics. Taiwanese officials did not immediately respond to our request for comment.

According to the ethics report, Owens had limited contact — primarily a dinner — with officials from the purported sponsor, the Chinese Culture University. In contrast, Taiwanese government officials were involved throughout: they organized the trip; met Owens and his wife at the airport; accompanied the congressman for the entire trip; and paid bills for hotels and airfare.

The report quotes an unnamed witness with knowledge of Owens’ travel arrangements alleging that Taiwan’s Ministry of Foreign Affairs purchased the Owens’ plane tickets.

It quotes an employee of the Regent Taipei Hotel saying that the foreign ministry settled the Owens’ bill. That employee later sent an unprompted follow-up to the ethics investigators saying that she believed the university may have later reimbursed the ministry for the cost. When asked by investigators how she knew this, the employee recommended investigators contact the ministry. Investigators could not determine whether the ministry was ever reimbursed.

The report also cites an email trail, first reported by ProPublica, showing Taiwanese officials and the country’s American lobbyists ironing out details with Owens’ staff in the weeks leading up to the trip.

An itinerary given to Owens includes both a Taiwanese government contact and a note to “keep your boarding passes for all domestic and international flights and return them to TECRO. We need to have those passes for accounting purpose [sic].” TECRO, the Taipei Economic and Cultural Representative Office, is Taiwan’s de facto embassy in the U.S.

At one dinner during the trip, a Taiwanese government official even “prompted [Owens] to thank the Chinese Culture University,” according to the congressman’s testimony to ethics investigators.

The Office of Congressional Ethics recommended that the House ethics committee issue subpoenas to three of Taiwan’s lobbyists in the U.S. because of their refusal to cooperate. The trio are employees of Park Strategies and include the founder of the firm, former Sen. Al D’Amato, who helped organize the Owens trip.  

In the wake of the ethics probe, Taiwan terminated its $20,000-per-month contract with Park.

Update Feb. 7, 9:30 p.m. A spokesman for TECRO told ProPublica that all of the trips to Taiwan, including the Owens trip, “conformed with U.S. laws and regulations.” In the Owens case, “the government paid for some of the trip -- and then the university reimbursed the government,” the spokesman said, declining to comment further.

The ethics investigators could not confirm whether any reimbursement was actually made and noted that “Even if the Chinese Culture University made such a reimbursement, it is not clear whether Representative Owens could have accepted a gift of travel that was initially paid for by an impermissible source.”

by T. Christian Miller

Feb. 8: This post has been corrected.

The U.S. Department of Labor has fined a private security contractor $75,000 for failing to file timely reports on the casualties of workers in Iraq as required by law. The Sandi Group, based in Washington D.C., delayed telling the Labor department that 30 of its employees had been killed while working for the company between 2003 and 2005, according to the department.

The Sandi Group, a privately held company known for employing large numbers of Iraqis as security guards, did not return requests for comment. Since 2005 the company has won U.S. government contracts worth at least $80.9 million, according to a federal contracting database.

The fine, believed to be the largest ever levied against a single company for failing to report war zone casualties in a timely manner, is part of an enforcement crackdown that began after a ProPublica series highlighted problems with a government program designed to provide health benefits to civilian contractors working in Iraq and Afghanistan. "Timely reporting of work-related injuries, illnesses and fatalities are vitally important to protect the interests of injured workers and their families," Gary A. Steinberg, acting director of the Department of Labor office which negotiated the settlement amount with the company, said in a prepared statement.

The Labor Department is responsible for administering an obscure government program called the Defense Base Act. The act requires that contractors working overseas for the U.S. government take out specialized insurance, similar to workers compensation, to provide medical treatment for injuries sustained on the job, or to pay death benefits in the event of work-related fatalities.

The ProPublica series found the system in shambles. Insurance companies routinely delayed payments and medical treatment to injured American workers, while charging taxpayers hundreds of millions of dollars for the policies. The Labor Department failed to bring enforcement actions against companies that flouted the law, even when federal administrative judges urged the agency to act. Foreign workers, such as Iraqi and Afghan translators who helped U.S. troops, frequently at risk to their own lives, often received no benefits at all.

After the series ran, the department began publishing information on contractor deaths and injuries and posted report cards showing how quickly insurance companies reported casualties. They also vowed more aggressive enforcement.

Injured workers, however, say that problems remain. Marcie Hascall Clark has battled for years to receive medical treatment and lost wage payments for her husband, who was injured in Iraq. She says she hasn’t seen any improvement in a process she contends still moves too slowly. “The [Labor Department] is worse than ever,” said Clark, who runs a website for injured contractors.

As of December, 3,258 civilian contract workers had been killed or died in Iraq, and another 90,000 had reported injuries.

Correction: This post and headline has been corrected to show that 30 incidents which The Sandi Group delayed in reporting included both deaths and injuries of workers.

by Justin Elliott

Taiwan has terminated its with contract a lobbying firm whose role organizing a trip to the country for a Democratic congressman prompted an ongoing House ethics investigation. House rules ban most trips organized by lobbyists.

Park Strategies, which was founded by former Republican Sen. Al D’Amato, represented Taiwan on Capitol Hill for four years beginning in 2009. Last year, it was paid $20,000 per month plus expenses on the contract.

The House ethics committee is still looking into the trip Park Strategies organized for Rep. Bill Owens, D-N.Y., and his wife to Taiwan in late 2011. After we reported details of the trip last year, Owens reimbursed the $22,000 cost of travel. The trip, which included stays at luxury hotels, later became the subject of attack ads against Owens in his successful campaign for reelection in upstate New York.

Taiwan opted not to renew Park Strategies' lobbying contract this year, according to documents filed with the Justice Department last month.

Neither Taiwan’s representative nor Park Strategies would comment on whether the Owens matter prompted the termination of the contract.

“The decision was made based on the common practice of reviewing existing contracts as they relate to the current needs of the employer,” said Thalia Lin, spokesperson for Taiwan’s representative in Washington.

Lin noted that Taiwan retains the services of several other public relations firms, and that two other contracts were not renewed this year.

Just as Park Strategies’ contract expired, Taiwan hired another Republican firm, the Nickles Group, to represent it on Capitol Hill. That firm, which like Park will be paid $20,000 per month, is run by another former Republican senator, Don Nickles of Oklahoma.

Park Strategies opened an office in Taipei in 2010 and, besides its work for the Taiwanese government, has been cited in news reports as working for casino operators in the region.

“Our commitment to our Taiwan office and the Taiwan market remains as strong as ever,” said Park Strategies spokeswoman Dana Sanneman.

by Cora Currier

In his second inaugural address, President Barack Obama declared that “a decade of war is now ending.” White House press secretary Jay Carney later said there was “no question” that the U.S. conflict with al-Qaida was “entering a new phase.”

That day in Yemen, a U.S. drone strike reportedly killed three suspected al-Qaida militants. It was one of several strikes there that week and followed a spate of them in Pakistan. Outgoing Secretary of Defense Leon Panetta said this weekend that drone strikes “ought to continue to be a tool we ought to use where necessary.”

Like the war in Afghanistan, these and hundreds of other drone strikes have occurred under the authority of a concise law passed one week after 9/11. It reads:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

That law – known as the 2001 Authorization for Use of Military Force, or AUMF – is now more than 11 years old. Will it cover this “new phase” of war?

Obama, like President George W. Bush before him, has claimed that the 2001 authorization is the domestic legal basis of the authority to kill and detain not onlymembers of al-Qaida and the Taliban in Afghanistan but also their “associated forces.” Courts have largely agreed with that interpretation, and in 2011 Congress codified it in authorizing military detention.

A Justice Department memo – published Monday by NBC News – repeatedly cites Congress’ authorization in laying out the case for targeting a U.S. citizen “who is a senior operational leader of al-Qaida or an associated force.”

Officials note the AUMF does not have a geographic boundary. Individuals far from the “hot” battlefield in Afghanistan, officials have argued, can still be said to be engaged in an armed conflict with the U.S.

But legal scholars say the AUMF’s authority to detain and kill militants may be undermined if there is no “core” al-Qaida group to speak of, or when active conflict in Afghanistan ends.  It may also falter when it isn’t clear exactly how a group or individual is tied to al-Qaida – such as in the web of militant and extremist groups operating in Africa and elsewhere that may claim an affiliation or be ideologically aligned.

“There’s room for shoe-horning them into the AUMF,” says Robert Chesney, a professor at University of Texas School of Law. “But any honest assessment has to concede it’s not obvious that all the more loosely affiliated groups are encompassed.”

The AUMF doesn’t include an expiration date. But the law does have its limits, says Chesney. “It’s not claiming an armed conflict with all terrorism, but with al-Qaida and its associated forces. In theory, there can come an end.”

Last November, shortly before he stepped down as the Pentagon’s general counsel, Jeh Johnson gave a speech on that end. He spoke of a “tipping point,” when the U.S. counterterrorism efforts “should no longer be considered an ‘armed conflict’ against al-Qaida and its associated forces.” Counterterror efforts would then be aimed against individuals and could be handled primarily by law enforcement.

Johnson conceded it was hard to imagine that tipping point. There would be no “peace treaty” to mark it, he said, and he could “offer no prediction about when this conflict will end.”

A preview of the dilemma came in 2011, when the U.S. indicted a Somali man named Ahmed Abdulkadir Warsame in federal court in New York. Warsame was a member of Al-Shabaab, a group in Somalia, and had ties to al-Qaida in the Arabian Peninsula, but he was not connected to any plot against the U.S. He had initially been held by the military, but according to Newsweek reporter Daniel Klaidman, the Obama administration was unsure where he fit under the law.

Jack Goldsmith, a professor at Harvard Law School and former head of the Office of Legal Counsel for President Bush in 2003 and 2004, says “the AUMF is losing its efficacy. We’re in a place when we’re engaged in types of warfare that the nation hasn’t openly debated.”

The “shoehorn” approach may eventually run into legal gray area. Chesney points out that court decisions upholding military detention have generally been linked in some way to the conflict in Afghanistan. (So far, U.S. courts have not taken up lawsuits challenging targeted killing.)

“When the war in Afghanistan ends, and if core al-Qaida is decimated, how do we define who we are at war with?” says Hina Shamsi, director of the National Security Project at the American Civil Liberties Union.

Shamsi argues that the Obama administration is already relying on an overbroad interpretation of the AUMF to justify strikes against alleged militants in Yemen or Somalia without demonstrating precisely how they are associated with al-Qaida or engaged in anti-U.S. hostilities.

Militant groups have emerged as a threat in North Africa – some claiming an affiliation with al-Qaida. The degree to which those groups are plotting against the U.S. or interested in regional control is still being debated. The U.S. is expanding its presence in the region, butat least initially, the government says it is bolstering surveillance and training and assistance for local governments, not taking military action.

A Pentagon spokesman said last week he was “unaware of any specific or credible information at this time that points to an [al-Qaida in the Islamic Maghreb] threat against the homeland, but, again, I’m not ruling it out.”

The U.S. has provided refueling and cargo planes to assist the French intervention in Mali. That is lawful because France is acting “in response to a request for assistance from the Malian government,” Tommy Vietor, a spokesman for the National Security Council, told ProPublica.

Administration officials say strikes against al-Qaida and associated forces are permitted under international law on the basis of self-defense, in addition to the authority the AUMF provides under domestic law. The U.N. has been investigating targeted killings and civilian casualties from drone strikes.

In a case where the 2001 AUMF did not apply, the administration could seek a new authorization from Congress or rely on presidential powers to use force against an imminent threat.

Gen. Carter Ham, the head of U.S. Africa Command, said in an interview with The Wall Street Journal in December that an authorization to address new threats in North Africa was a “worthy discussion.” But what form that would take is unclear. The Pentagon and White House did not comment to ProPublica on the possibility of a new AUMF.

Presidents have used force without Congressional authorization by invoking presidential powers under Article II of the Constitution.

Obama ordered airstrikes over Libya in the spring of 2011 citing international cooperation and “national interest” as justification. (Several lawmakers subsequently sued the administration for bypassing them, but the case was dismissed.) He has also claimed authority to launch pre-emptive cyberattacks, the New York Times reported this weekend. President Bill Clinton cited the nation’s right to self-defense when he bombed Afghanistan and Sudan in 1998 in retaliation for the bombing of U.S. embassies in East Africa.

Obama officials regularly cite self-defense alongside the AUMF in justifying targeted killing. White House counterterror adviser John Brennan has said that the U.S. uses “a flexible understanding of ‘imminence’ ” in determining what constitutes a threat. The Justice Department memo on targeting U.S. citizens also references a “broader concept of imminence,” which it holds “does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

Shamsi and other critics of the drone war have noted that some strikes in Yemen in particular appear to target insurgents acting against local government. The U.S. almost never acknowledges particular strikes or details the specific threat posed by an individual.

Johnson, the former Pentagon counsel, told The Wall Street Journal that “the president always has the constitutional authority to protect the nation and important national interests by responding to individual terrorist threats, militarily or otherwise.”

Johnson noted that, for a “sustained armed conflict, the preference should be Congressional authorization.” 

by Sebastian Rotella

Bulgaria's announcement today that investigators suspect Hezbollah in last summer's terrorist bombing against Israeli tourists on the Bulgarian coast ratchets up a conflict between the West and Iran that is being waged in political, military and covert arenas.

Half a year after the bombing killed six people and wounded 30, the results of the investigation suggest the attack was the Lebanese militant group's first terror strike on European soil since the 1990s.

As ProPublica reported last summer Iran and Hezbollah have waged a covert global struggle with Israel and the United States for the past several years as a result of conflict over Iran’s nuclear ambitions. Israel and the United States reacted to Tuesday's news from Bulgaria by repeating calls for the European Union to designate Hezbollah as a terrorist group — a move that most EU nations have resisted.

The investigation into the July 18 attack in Burgas, a popular coastal destination for Israelis, has been slow and difficult despite the support of Israeli, U.S. and European counterterror agencies, according to officials familiar with the case.

Bulgarian interior minister Tsvetan Tsvetanov made a public statement Tuesday revealing that, while some questions have been answered, others persist.

Investigators have determined that the bomber, who died in the attack, and two accomplices traveled from Lebanon via other European countries to Bulgaria carrying fraudulent Michigan driver's licenses fabricated in Lebanon, according to Tsvetanov.

Two of the suspects traveled via Germany and Belgium, according to a U.S. counterterror official who requested anonymity because he was not authorized to speak about the case. Bulgarian investigators retraced movements of the trio from June 28, when they entered the country and used the fake licenses at hotels and to rent cars, until July 18, when a backpack carried by a lanky, long-haired youth in casual attire blew up the bus carrying Israeli tourists at the Burgas airport, according to Tsvetanov.

Investigators have identified the bomber's accomplices, whose licenses bore the aliases Ralph William Rico and Brain Jameson, as holders of Australian and Canadian passports. The two, now fugitives, have lived and worked in Lebanon since 2006 and 2010 and are believed to be Hezbollah operatives, the interior minister said.

"We traced their overall activity in Australia and Canada," Tsvetanov said. "We have data on financial links and involvement in Hezbollah. What can be made as a reasonable assumption — I repeat, a reasonable assumption — is that the two persons whose real identity was established belonged to the military formation of Hezbollah."

The Australian is a man of Lebanese descent whom Western law enforcement has been hunting in recent weeks, according to a European counterterror official familiar with the investigation. The Bulgarian interior minister said his country will request help from Lebanon, Australia, Canada and other countries as the investigation continues.

The profile of the suspects fits a pattern of Hezbollah using operatives with Western passports, counterterror officials say. Cypriot authorities are prosecuting a Swede of Lebanese descent for conducting reconnaissance on Israeli tourists last year. In 2009, Turkish police arrested a suspected Canadian Hezbollah operative in a failed car bombing against an Israeli diplomatic target.

Although the Bulgarian interior minister said investigators had recovered DNA traces of all three suspects, it was not clear whether the bomber, whose alias was Philip Martin, has been identified.

Tsvetanov also did not address the mystery of whether the attack was a suicide bombing. The explosive device carried a mechanism enabling it to be detonated from afar, according to the European counterterror official. Some Western investigators believe the bomber did not intend to die, but rather that an accomplice set off the bomb prematurely, in response to unforeseen circumstances or because the bomber was a dupe.

"The discovery of his license makes it more likely that he was not a suicide bomber," the European counterterror official said. "If it had all been planned to happen exactly as it did with his knowledge, I think they would have taken the license away to make it harder to trace him. We think it is an attacker who died rather than a voluntary kamikaze."

Although Hezbollah has conducted suicide car bombings against hard targets, it generally does not carry out lone-bomber suicide attacks on foot, said Magnus Ranstorp, a foremost Hezbollah expert at the Swedish National Defense College.

Hezbollah has used unwitting bombers before, he said, adding that there are "odd things" about the attack that have yet to be explained, such as the clumsily forged licenses.

But he and other experts said the timing, target and profile of the suspects suggests the attack was part of an escalating offensive by Iranian spies and Hezbollah militants that has resulted in attacks and plots from Africa to India to Thailand.

The shadow war has intensified because of Israeli assassinations of Iranian nuclear scientists and of Imad Mughniyeh, a Hezbollah warlord with close ties to the Iranian security forces, in 2008. The Burgas attack happened on the 18th anniversary of a massive car-bomb in Argentina carried out by Iranian and Hezbollah operatives in 1994.

Although Europe supports U.S. and Israeli efforts to thwart Tehran's nuclear ambitions, the European Union's policy toward Hezbollah diverges considerably. Most European nations resist pressure to designate Hezbollah, even its military wing, as a terrorist organization. In a clear sign of that reluctance, EU foreign minister Catherine Ashton issued a response to the Bulgarian announcement Tuesday that did not use the word Hezbollah.

Even European Union nations that view Hezbollah as a threat worry that designation could spur retaliation and destabilize Lebanon, where the militant group wields considerable power in government and on the street, Ranstorp said. European leaders also worry about the complex conflict with Iran involving Syria's civil war and the Iranian nuclear program.

"It's not a stand-alone issue," he said. "It's wrapped up in what's happening with Syria, Israel and above all, Iran."

by Cora Currier

This post has been updated. It was originally published Jan. 11, 2013.

Jan. 11, 2013: This post has been corrected.

You might have heard about the “kill list.” You’ve certainly heard about drones. But the details of the U.S. campaign against militants in Pakistan, Yemen, and Somalia -- a centerpiece of the Obama administration’s national security approach – remain shrouded in secrecy. Here’s our guide to what we know—and what we don’t know.

Where is the drone war? Who carries it out?

Drones have been the Obama administration’s tool of choice for taking out militants outside of Iraq and Afghanistan. Drones aren’t the exclusive weapon – traditional airstrikes and other attacks have also been reported. But by one estimate, 95 percent of targeted killings since 9/11 have been conducted by drones.  Among the benefits of drones: they don’t put American troops in harm’s way.

The first reported drone strike against Al Qaeda happened in Yemen in 2002. The CIA ramped up secret drone strikes in Pakistan under President George W. Bush in 2008. Under Obama, they have expanded drastically there and in Yemen in 2011.

The CIA isn’t alone in conducting drone strikes. The military has acknowledged “direct action” in Yemen and Somalia. Strikes in those countries are reportedly carried out by the secretive, elite Joint Special Operations Command. Since 9/11, JSOC has grown more than tenfold, taking on intelligence-gathering as well as combat roles. (For example, JSOC was responsible for the operation that killed Osama Bin Laden.)  

The drone war is carried out remotely, from the U.S.  and a network of secret bases around the world. The Washington Post got a glimpse – through examining construction contracts and showing up uninvited – at the base in the tiny African nation of Djibouti from which many of the strikes on Yemen and Somalia are carried out. Earlier this year, Wired pieced together an account of the war against Somalia’s al-Shabaab militant group and the U.S.’s expanded military presence throughout Africa.

The number of strikes in Pakistan has ebbed in recent years, from a peak of more than 100 in 2010, to an estimated 46 last year. Meanwhile, the pace in Yemen picked up, with more than 40 last year. But there have been seven strikes in Pakistan in the first ten days of 2013.

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AUMF The Authorization for Use of Military Force, an act of Congress passed days after the 9/11 attacks, giving the president authority to take "all necessary and appropriate force" against anyone involved in the attack or harboring those who were. Both Bush and Obama have claimed broad authorities to detain and kill terror suspects based on the AUMF.

AQAP Al Qaeda in the Arabian Peninsula is the Yemen-based al Qaeda affiliate tied to the attempted Christmas Day airplane bombing in 2009. Over the past year, the U.S. has ramped up strikes against AQAP, targeting leaders as well as unspecified militants.

Disposition Matrix A system for tracking terror targets and assessing when – and where – they could be killed or captured. The Washington Post reported this fall that the Disposition Matrix is an attempt to codify for the long haul the administration's "kill lists."

Glomar A response rejecting a request for information on a classified program asserting that the information's mere existence can neither be confirmed nor denied. The name comes from 1968, when the CIA told journalists it could neither "confirm nor deny" the existence of a ship called the Glomar Explorer. The CIA has responded to information requests about its drone program with Glomar responses.

JSOC Joint Special Operations Command is a secretive, elite segment of the military. JSOC squads carried out the Bin Laden raid and run the military's drone programs in Yemen and Somalia and also conduct intelligence gathering.

Personality Strike A targeted attack on a particular individual identified as a terrorist leader.

Signature Strike A strike against someone believed to be a militant whose identity isn't necessarily known. Such strikes are reportedly based on a "pattern of life" analysis – intelligence on their behavior suggesting that an individual is a militant. The policy, reportedly begun by Bush in Pakistan in 2008, is now allowed in Yemen.

TADS Terror Attack Disruption Strikes, sometimes used to refer to some strikes when the identity of the target is not known. Administration officials have said that the criteria for TADS are different from signature strikes, but it is not clear how.

How are targets chosen?

A series of articles based largely on anonymous comments from administration officials have given partial picture of how the U.S. picks targets and carries out strikes. Two recent reports – from researchers at Columbia Law School and from the Council on Foreign Relations– also give detailed overviews of what’s known about the process.

The CIA and the military have reportedly long maintained overlapping “kill lists.” According to news reports last spring, the military’s list was hashed out in Pentagon-run interagency meetings, with the White House approving proposed targets. Obama would authorize particularly sensitive missions himself.

This year, the process reportedly changed, to concentrate the review of individuals and targeting criteria in the White House. According to the Washington Post, the reviews now happen at regular interagency meetings at the National Counterterrorism Center. Recommendations are sent to a panel of National Security Council officials. Final revisions go through White House counterterror adviser John Brennan to the president. Several profiles have highlighted Brennan’s powerful and controversial role in shaping the trajectory of the targeted killing program. This week, Obama nominated Brennan to head the CIA.

At least some CIA strikes don’t have to get White House signoff. The director of the CIA can reportedly green-light strikes in Pakistan. In a 2011 interview, John Rizzo, previously the CIA’s top lawyer, said agency attorneys did an exhaustive review of each target.

According to the Washington Post, the Obama administration's recent effort to impose more stringent requirements for kill lists and signature strikes exempts the CIA's campaign in Pakistan. The CIA will have at least a year to continue strikes in Pakistan according to its own protocols.

Doesn’t the U.S. sometimes target people whose names they don’t know?

Yes.  While administration officials often have frequently framed drone strikes as going after “high-level al Qaeda leaders who are planning attacks” against the U.S., many strikes go after apparent militants whose identities the U.S. doesn’t know. The so-called “signature strikes” began under Bush in early 2008 and were expanded by Obama. Exactly what portion of strikes are signature strikes isn’t clear.

At various points the CIA’s use of signature strikes in Pakistan in particular have caused tensions with the White House and State Department. One official told the New York Times about a joke that for the CIA, “three guys doing jumping jacks,” was a terrorist training camp.

In Yemen and Somalia, there is debate about whether the militants targeted by the U.S. are in fact plotting against the U.S. or instead fighting against their own country. Micah Zenko, a fellow at the Council on Foreign Relations who has been critical of the drone program, toldProPublica that the U.S. is essentially running “a counterinsurgency air force” for allied countries. At times, strikes have relied on local intelligence that later proves faulty. The Los Angeles Times recently examined the case of a Yemeni man killed by a U.S. drone and the complex web of allegiances and politics surrounding his death.

How many people have been killed in strikes?

The precise number isn’t known, but some estimates peg the total around 3,000.

A number of groups are tracking strikes and estimating casualties:

·         The Long War Journal covers Pakistan and Yemen.

·         The New America Foundation covers Pakistan.

·         The London Bureau of Investigative Journalism covers Yemen, Somalia, and Pakistan, as well as statistics from on drone strikes carried out in Afghanistan.

How many of those killed are have been civilians?

It’s impossible to know.

There has been considerable back-and-forth about the tally of civilian casualties. For instance, the New America Foundation estimates between 261 and 305 civilians have been killed in Pakistan; The Bureau of Investigative Journalism gives a range of 475 - 891. All of the counts are much higher than the very low numbers of deaths the administration claims. (We’ve detailed inconsistencies even within those low estimates.)  Some analyses show that civilian deaths have dropped proportionally in recent years.

The estimates are largely compiled by interpreting news reports relying on anonymous officials or accounts from local media, whose credibility may vary. (For example, the Washington Post reported last month that the Yemeni government often tries to conceal the U.S.’ role in airstrikes that kill civilians.)

The controversy has been compounded by the fact that the U.S. reportedly counts any military-age male killed in a drone strike as a militant. An administration official told ProPublica, “If a group of fighting age males are in a home where we know they are constructing explosives or plotting an attack, it's assumed that all of them are in on that effort.” It’s not clear what if any investigation occurs after the fact.

Columbia Law School conducted an in-depth analysis of what we know about the U.S.’s efforts to mitigate and calculate civilian casualties. It concluded that the drone war’s covert nature hampered accountability measures taken in traditional military actions. Another report from Stanford and NYU documented “anxiety and psychological trauma” among Pakistani villagers.

This fall, the U.N. announced an investigation into the civilian impact – in particular, allegations of “double-tap” strikes, in which a second strike targets rescuers.

Why just kill? What about capture?

Administration officials have said in speeches that militants are targeted for killing when they pose an imminent threat to the U.S. and capture isn’t feasible. But killing appears to be is far more common than capture, and accounts of strikes don’t generally shed light on “imminent” or “feasible.”  Cases involving secret, overseas captures under Obama show the political and diplomatic quandaries in deciding how and where a suspect could be picked up.

This fall, the Washington Post described something called the “disposition matrix” – a process that has contingency plans for what to do with terrorists depending where they are. The Atlantic mapped out how that decision-making might happen in the case of a U.S. citizen, based on known examples. But of course, the details of the disposition matrix, like the “kill lists” it reportedly supplants, aren’t known.

What’s the legal rationale for all this?

Obama administration officials have given a series of speeches broadly outlining the legal underpinning for strikes, but they never talk about specific cases. In fact, they don’t officially acknowledge the drone war at all.   

 The White House argues that Congress’ 2001 Authorization for Use of Military Force as well as international law on nations’ right to self-defense provides sound legal basis for targeting individuals affiliated with Al Qaeda or “associated forces,” even outside Afghanistan. That can include U.S. citizens.

“Due process,” said Attorney General Eric Holder said in a speech last March, “takes into account the realities of combat.”

What form that “due process” takes hasn’t been detailed. And, as we’ve reported, the government frequently clams up when it comes to specific questions – like  civilian casualties, or the reasons specific individuals were killed.

NBC News obtained a Justice Department memo that was given to some members of Congress in June laying out the administration's legal case for targeted killing in more detail. The memo, which was not classified, says that a U.S. citizen who is a "senior operational leader of al-Qaida or an associated force" can be targeted even if they are not tied to an active plot against the U.S. It also offers more detail on criteria for determining that capture is not feasible.

A federal judge had ruled earlier this year that the government did not have to release a separate secret legal memo making the specific case for the killing of Anwar al-Awlaki, a U.S. citizen. The judge also ruled the government did not have to respond to other requests seeking more information about targeted killing in general.  (In making the ruling, the judge acknowledged a “Catch-22,” saying that the government claimed “as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for their conclusion a secret.”)

The U.S. has also sought to dismiss a lawsuit brought by family members over Awlaki’s death and that of his 16-year-old son – also a U.S. citizen -- who was killed in a drone strike.

When does the drone war end?

The administration has reportedly discussed scaling back the drone war, but by other accounts, it is formalizing the targeted killing program for the long haul. The U.S. estimates there Al Qaeda in the Arabian Peninsula has a “few thousand” members; but officials have also said the U.S. cannot “capture or kill every last terrorist who claims an affiliation with al Qaeda.”

Jeh Johnson, who just stepped down as general counsel for the Pentagon, gave a speech last month entitled, “The Conflict Against Al Qaeda and its Affiliates: How Will It End?” He didn’t give a date.

 John Brennan has reportedly said the CIA should return to its focus on intelligence-gathering. But Brennan’s key role in running the drone war from the White House has led to debate about how much he would actually curtail the agency’s involvement if he is confirmed as CIA chief.

What about backlash abroad?

There appears to be plenty of it. Drone strikes are deeply unpopular in the countries where they occur, sparking frequent protests. Despite that, Brennan said last August that the U.S. saw,“little evidence that these actions are generating widespread anti-American sentiment or recruits.”

General Stanley McChrystal, who led the military in Afghanistan, recently contradicted that, saying, “The resentment created by American use of unmanned strikes ... is much greater than the average American appreciates. They are hated on a visceral level, even by people who've never seen one or seen the effects of one.” The New York Times recently reported that Pakistani militants have carried out a campaign of brutal reprisals against locals, accusing them of spying for the U.S.

As for international governments: Top U.S. allies have mostly kept silent. A 2010 U.N. report raised concerns about the precedent of a covert, boundary-less war. The President of Yemen, Abdu Hadi, supports the U.S. campaign, while Pakistan maintains an uneasy combination of public protest and apparent acquiescence.

Who to Follow

For reporting and commentary on the drone war on Twitter:

@drones collects op-eds and news on well, drones. (Run by members of the Electronic Frontier Foundation, which has been outspoken about privacy concerns in the use of domestic drones, but it also covers national security.)

@natlsecuritycnn has breaking news.

@Dangerroom from Wired covers national security and technology, including a lot on drones.

@lawfareblog covers the drone war’s legal dimensions.

@gregorydjohnsen is an expert on Yemen, who is closely following the war there.

@AfPakChannel from the New America Foundation and Foreign Policy tweets news and commentary on Afghanistan and Pakistan.

Correction: An earlier version of this piece referenced a speech given by former State Department legal adviser Harold Koh. The speech was in fact given by Jeh Johnson, then general counsel for the Pentagon.

by Lois Beckett

For years, state Democratic parties have been gathering information about individual voters' political leanings. They have noted down the opinions voters shared with canvassers — which candidates they said they supported or their positions on policy issues.

Now, the record of what people told Democratic volunteers may go up for sale — and not just to political groups. Democrats are looking into whether credit card companies, retailers like Target or other commercial interests may want to buy the information.

State Democratic party leaders formed the National Voter File Co-op in 2011 to sell their voter data to approved groups like the NAACP. The goal was to recoup some of the money local Democratic parties spent collecting and updating their local voter lists, which include voters of all parties.

Much of the data the co-op sells comes from the government and is already part of the public record — information such as voters' names, addresses and party affiliation.

But local Democratic parties also have information about voters' views and preferences collected over many campaign cycles. (We wrote about Minnesota's data-collecting "Grandma Brigade" last month.) Some state Democratic parties have used this raw data to create sophisticated estimates of how likely any voter is to vote for a Democrat, support Barack Obama or have certain opinions, say, on abortion or gun control.

As the co-op moves into its second year of selling data in an already crowded marketplace, it's looking for new potential clients — and companies who may use the data for commercial purposes, as opposed to political ones, are on the list.

"That's one of our growth areas," said Drew Brighton of TargetSmart Communications, which helps administer and market the Co-op's data. "Over the next six months, we are going to go ahead and make the rounds with some corporate prospects."

Brighton said retailers, for example, might be interested in figuring out if their customers are primarily Democrats or Republicans. "People want to know who shops in their stores," he said.

Democrats involved with the co-op do not know what companies might be most interested in buying their voter data.

"What the co-op is doing is saying, 'Look, there's a wealth of information here, that could potentially benefit your corporation or your business interests,'" said Ken Martin, a member of the co-op's board, and the chairman of Minnesota's Democratic-Farmer-Labor Party.

"Everything is on the table, nothing's off the table. It's up to us to figure out what [data] there's a market for, and whether there's a comfort level among state parties for selling that information," he said.

Each state Democratic Party will have the final say over whether to sell their voter information for commercial purposes. If state party leaders aren't comfortable with selling proprietary data to a certain client, they can opt out.

Individual states have different laws about how their public voting records can be used. Many states mandate that public voter rolls can only be used for "political purposes," and some states explicitly ban using voting records for "commercial purposes." The co-op and its clients must abide by these rules.

But state political data laws do not apply to the information about voters that the party itself has gathered.

"Generally, information freely provided to the party by the voter, or data about who participated in a primary [that the party collects] is not subject to any prohibition on it being sold," said Karl Sandstrom, a former vice-chairman of the Federal Elections Commission and an attorney for the co-op.

This means Democrats are free to sell the opinions voters give to campaign canvassers to credit card companies or marketing firms.

Whether they will choose to do this isn't certain. Martin, the Minnesota Democratic chairman, said that party leaders will have to weigh the risks of any potential deal.

"Obviously, we know we could make money off our file, but it always comes back to the question of, at what cost?" Martin said.

He said he would evaluate commercial deals on a case-by-case basis.

"I'm not opposed to selling the data if it's a corporation who shares our values and is going to do some good work with that data."

Wal-Mart, for instance, would not make the cut, he said.

Whether corporations are interested in buying the co-op's data remains to be seen. Wal-Mart did not respond to a request for comment about whether it would be interested in buying information about its customers' political beliefs.

Consumer data companies like Experian already peddle information about individuals' political beliefs and donation histories — and also link this information to their consumer habits. This November, Experian Simmons released a study breaking down the political leanings of shoppers at J. Crew, Lady Foot Locker, and more than 100 other major retailers.

But the fact that selling voters' opinions to companies is even an option for Democrats is another example of how rapidly the data industry is evolving — and how little information individuals have about how their data is being shared.

In his "Consumer Privacy Bill of Rights," released last year, President Barack Obama argued that when companies collect personal data from consumers, they should only share it in ways consumers expect.

If a company decides it wants to share personal information in a new way, Obama suggested, it should notify the consumers who are affected and provide them with choices about how their data is used.

Although Obama pledged to work with Congress to make the Consumer Privacy Bill of Rights into law, that hasn't happened yet.

Joseph Turow, a privacy expert at the University of Pennsylvania's Annenberg School for Communication, said the possibility that Democrats might repurpose voters' opinions for commercial marketing is problematic — particularly because they had collected that information through "a relationship of trust" with voters.

Both Democrats and Republicans have long traded information about voters' opinions with outside political groups. Long-time Republican activists have created a new group, the Data Trust, to manage the Republican National Committee's data and coordinate data exchanges between the RNC and conservative and issue advocacy groups.

Asked if the Republican Party sells the party's proprietary data to retailers or credit card companies, RNC spokeswoman Kirsten Kukowsi wrote, "Absolutely not — hasn't happened in past and won't in [the] future."

The Obama campaign's own closely guarded trove of voter information will be used to mobilize support for the president's agenda through a new nonprofit advocacy group, Organizing for Action, led by top Obama aides.

It's not clear what other groups may be given access to Obama's voter data. Organizing for Action did not respond to a request for comment. Staffers have said that passing on the campaign's voter information to an Obama-focused nonprofit reflects the wishes of the president's supporters, although supporters were not asked directly about how the campaign should treat their data.

Sandstrom, the lawyer for the state Democratic parties' National Voter File Co-op, said he doubted the co-op would actually end up selling voters' opinions for commercial uses, calling it an "abstract concern."

Democratic Party chairs were not eager to weigh in on the issue.

Last week, ProPublica contacted 11 Democratic state party chairs — some of them newly elected to their positions — about the National Voter File Co-op. Party chairs in Colorado, Florida, Iowa, Ohio, Pennsylvania, Maryland, North Carolina, Nevada, Utah, Virginia and Wisconsin declined or did not respond to multiple requests for comment.

New Hampshire Democratic chair Ray Buckley, who leads the Association of State Democratic Chairs, also declined to comment.

by Abrahm Lustgarten

The U.S. relies on state and federal regulators to make sure that oil and gas drilling is done safely, and that trillions of gallons of toxic waste injected into underground disposal wells do not contaminate water supplies.

Today, ProPublica is updating its database on oversight of production and waste wells, adding records for 2010 and 2011 — the most recent year available for many states — to data from 2003 to 2009. We've added information about agencies' budgets, as well as the total number of injection wells they are responsible for overseeing.

The data shows some states have hired more inspectors or otherwise increased their enforcement capacity. Still, the ratio of wells to inspectors remains extremely high, and the volume of waste being pumped underground has ballooned, driven in large part to the boom in drilling made possible by fracking.

Over a five-year span, ProPublica has investigated the risks from fracking and the expanding system of underground injection wells, often finding that regulatory agencies have fallen short in enforcing critical environmental protections.

In 2009, we found that the state oil and gas agencies charged with overseeing fracking and the drilling of natural gas were often woefully understaffed, just as the largest drilling boom in the recent history was ramping up.

In 2012, we investigated how the same agencies and the federal government were monitoring roughly 700,000 underground disposal wells in the U.S., of which more than 150,000 are used for waste from oil and gas drilling.

Our examination of records summarizing more than 220,000 well inspections conducted between late 2007 and late 2010 showed that fundamental safeguards are sometimes ignored or circumvented. We found records showing that more than 7,000 wells had leaked, and that more than 17,000 wells had failed structural tests.

Because of a lack of regulatory resources, our reporting showed, disposal wells often don't get the oversight that they need.

According to our September report:

State and federal regulators often do little to confirm what pollutants go into wells for drilling waste. They rely heavily on an honor system in which companies are supposed to report what they are pumping into the earth, whether their wells are structurally sound, and whether they have violated any rules.

More than 1,000 times in the three-year period examined, operators pumped waste into Class 2 wells at pressure levels they knew could fracture rock and lead to leaks. In at least 140 cases, companies injected waste illegally or without a permit.

In several instances, records show, operators did not meet requirements to identify old or abandoned wells near injection sites until waste flooded back up to the surface, or found ways to cheat on tests meant to make sure wells aren't leaking.

by Blair Hickman

Propping up a patient’s hospital bed at a 30-degree angle can help prevent hospital-acquired pneumonia. Using alcohol wipes kills staph bugs, but you need bleach wipes to kill C. diff germs. High-protein snacks can help prevent bed sores.

However, most patients don’t know these things. And doctors and nurses can easily overlook these basic care practices.

Karen Curtiss makes it her mission to remind them. After her father and husband both experienced adverse events in the hospital, Curtiss says, she founded Campaign Zero to arm patients with the information they need for a safe stay. Her book, “Safe & Sound in the Hospital: Must-Have Checklists and Tools for Your Loved One’s Care,” collects scores of these simple actions and details that can make a big difference in a patient’s recovery.

Checklists have become more common for surgeons in the operating room. But according to Curtiss, she’s the only one producing checklists on hospital care for patients and families.

To make the checklists, Curtiss read everything she could get her hands on: nursing textbooks, information from the CDC, academic publications. She took her work to specialists and focus groups. And then distilled all of the information into something so simple a sixth-grader could read it.

We sat down with Curtiss, who is a member of ProPublica’s Patient Harm Community, to find out more about patient-centered checklists.

Why checklists?

Conventional wisdom says that when you go to the hospital, you take someone with you. However, nobody is prepared. There’s nothing in college that teaches you how to be an advocate. There’s nothing in your life experience. We have an army of people sitting bedside, who are ripe for education.

We put a checklist out on Campaign Zero, but I could tell from the traffic that people were finding it only after a problem had occurred. They were Googling bed sores and how to treat them, staph infections. People do not prepare to be sick. So I wrote the book.

I learned during my research that there are repeated problems that put people back into the hospital that nobody ever tells you about. For example, if you have congestive heart failure, you need to weigh yourself every single day. If you gain two pounds in a day, you have to get to a doctor right away.

But I don’t know how many people are told that. Even if you are told that when you’re discharged, many people are still on drugs and not thinking clearly. And it’s a hurried process. They need someone there with faculties intact to ask the questions, sweat the details, know what to look for and be encouraged to ask questions. The simple affirmation that it’s OK to ask questions makes people more comfortable.

Furthermore, we know checklists work. Atul Gawande, the author and surgeon, wrote in “The Checklist Manifesto” that the ideal checklist is no more than ten items.  And they are effective. It’s been proven with other checklist projects, some that are being rolled out throughout the country.

So I said OK, if checklists work for the medical community, then they can work for families. It’s a potential win-win.

 

A lot of people in ProPublica’s Patient Harm Community say that when they ask questions, providers push back. What would you say to them?

I relate to that so much. And it’s unfortunate, but it does happen.

First of all, before you choose a hospital, make sure to vet them. Some hospitals talk the talk, and others walk the walk. You can look at their Leapfrog score or their Consumer Reports rating, if you have access to it. [Editor’s Note: You can also check Medicare’s Hospital Compare.]

But that’s hindsight. If you have problems after you’ve committed to a hospital, you can always call the hospital advocate. You can call a Condition Help, also called a Condition H, if you feel like your loved one isn’t being heard, or cared for properly, and a team will respond. It’s also sometimes called a rapid response team – hospitals call it different things. But very few are transparent about the fact that you can do that.

I’ve heard of doctors quitting patients because they ask too many questions. Obviously, you find another doctor. You find another hospital. A recent study suggested 27 percent of doctors and nurses feel it’s inappropriate for patients to ask them to wash their hands. It’s because they feel chastised. Their egos are bruised.

So what should a patient do? Stick to your guns. Be humble, and play to those egos. “I know you’re the expert, but I want to protect you as much as my loved one.”

That’s why in my book I have pullout cards. Sometimes, it’s easier for people to read a note than hear people say it. That’s also why some of those cards are silly; humor can help break the ice.

A lot of items on the checklist seem to address communication.

Communication is the number one challenge. In the 1970s, there were two or three doctors involved in a patient’s care. Now, there are up to 15. That’s good news. But the bad news is how do they communicate? Care is much more fractured because it’s specialized.

I encourage people to be a part of the shift change, which is called the hand-off. That’s when they share notes with the doctors starting their shift. It’s a huge opportunity to spot inaccurate information, fill in gaps and raise questions. Ideally, the hand off should occur bedside. If they resist, you can always ask to go to where they’re doing it. It might be in a break room.

How are providers responding to the checklists?
We’ve had a lot of support. And not just from providers. Blue Shield of California is giving the book to patients at University of California, San Francisco, who are employed by the city and county of San Francisco. Community Trust Bank in Kentucky, which has 1,000 employees, is giving everyone who has a pre-planned admission a copy of the book.

I also collaborated with Mary Foley, who’s a prominent leader in nursing innovation and head of nursing research and innovation at the UCSF, to create a companion nursing workshop. Nurses on the front line probably haven’t had up-to-date education on the basics of patient safety because they’re really busy and went to nursing school a long time ago. Plus, people can walk in with these checklists, and one look from a nurse who isn’t on board can make them feel like they were thrown under the bus. The workshop is meant to help nurses understand how engaging families and supporting safe care practices can benefit them.

What would you say is the one most important thing someone can do?

I have two: Ask people to wash their hands. The greatest hazard in hospitals is infection, and the number one thing you can do to prevent infections is hand washing. Don’t let people give you flack about it.

The second thing is to take notes. Take notes to ask questions and be organized. When the doctors and nurses come in, if you’re prepared with your questions in notes, then you use your time wisely.

Also note when medications are given, when tests are ordered and the test results. You could have tests ordered at 9 a.m., and the results might be critical for next steps. If they don’t come until 9 p.m., that’s a problem. And a detail like that can get lost.

People respect stuff that’s written down. And if the doctors and nurses know you’re on it, they will be more accountable. It’s very subtle, but it takes the drama and emotion out of it, and makes the experience more businesslike. 

by Charles Ornstein and Tracy Weber

Update, Feb. 1, 2013: This story has been updated.

After years of anticipation, all of the nation's drug and medical device makers must soon begin publicly reporting payments they make to U.S. physicians, according to final regulations announced this afternoon by the federal government.

The release of payments data in September 2014 would mark a milestone in the push to bring transparency to medicine. Once posted, patients will be able to see if their physicians receive money from any of the companies whose products they prescribe. Studies have shown that such payments, however small, bias physicians towards companies and their products.

Until now, ProPublica's Dollars for Docs tool has been the only freely available source for the public to search and analyze the payments made since 2009 by a dozen drug companies. ProPublica gathered the information from the companies' websites into one searchable, sortable database.

Most of these companies were required to post the information on their websites as part of settlements with the federal government over allegations of improper marketing. Companies have paid billions of dollars to settle the lawsuits.

ProPublica is working on an update of Dollars for Docs and in the coming weeks will expand the database to include payments from 15 companies through the end of 2012.

Drug companies, lawmakers and consumer advocates have grown increasingly frustrated by the time it has taken the U.S. Centers for Medicare and Medicaid Services (CMS) to release final rules for collecting and publishing the data under the Physician Payments Sunshine Act, which was a part of the 2010 health reform law.

The payments were supposed to become public beginning this year under provisions of the law. But federal health officials instead released proposed regulations in December 2011 and since then have been gathering and analyzing comments.

The data to be released in September 2014 will include payments made from August to December of this year, giving companies enough time to gather and report the information. The companies must turn the data over to the government by March 2014; doctors will then have 45 days to review the information for accuracy before it becomes public.

Companies will have to report the information annually afterward.

"You should know when your doctor has a financial relationship with the companies that manufacture or supply the medicines or medical devices you may need," Dr. Peter Budetti, the CMS deputy administrator for program integrity, said in a written statement. "Disclosure of these relationships allows patients to have more informed discussions with their doctors."

Sen. Chuck Grassley, R-Iowa, co-authored the Sunshine Act, which arose from his investigations of drug company payments to doctors. "Disclosure brings about accountability, and accountability will strengthen the credibility of medical research, the marketing of ideas and, ultimately, the practice of medicine," he said in a statement. "I will stay vigilant about how this law is implemented, especially after the delays seen already."

The drug companies that currently post payment information do so in different ways, using different time periods and different definitions that make analysis or aggregation of the data very difficult. The Physician Payments Sunshine Act requires every company to report the same information in the same way.

Drug, device and medical supply companies must report all payments over $10 to U.S. physicians and teaching hospitals. The data must include date of payment, a description of the service provided, the amount paid and which of a company's products the payment involved.

The types of payments to be reported include speaking fees, consulting payments, research, gifts, food, entertainment, honoraria, research grants, royalties and license fees, among others.

Companies that fail to properly report payments can be fined between $1,000 and $10,000 for each payment not reported, but the fine cannot exceed $150,000. A deliberate failure to report can lead to a fine of up to $1 million.

The trade group representing major pharmaceutical companies said it is reviewing the regulations. It had raised a number of concerns to the government. The Pharmaceutical Research and Manufacturers of America "remains committed to the principles of the Sunshine Act" and wants the information to be "usable, transparent, and understandable," Matthew Bennett, the group's senior vice president, said in a statement.

ProPublica's analysis of the payments released so far shows that many physicians receive money from several companies for promotional speaking or consulting on behalf of their products. In some cases, these payments totaled hundreds of thousands of dollars.

One Los Angeles-area doctor, for example, received more than $300,000 in speaking fees in 2009 and 2010 alone just from the companies in our database. Those firms account for only about 40 percent of U.S. pharmaceutical sales.

ProPublica also found that more than 250 physicians chosen to be drug company speakers and consultants had been disciplined by their state medical boards or other regulatory agencies.

by Cora Currier

When a pretrial hearing for Khalid Shaikh Mohammed and four other alleged 9/11 plotters began this week, an unknown censor shut off the audio feed from the courtroom even though no classified information was being discussed. Even the military commisson judge was caught by surprise, and he has now mandated that no one besides the security officer present in court may suspend broadcasting of the court proceedings, The New York Times reported. Last year, ProPublica covered the controversy surrounding the delayed broadcast and the handling of classified information in the case.

by Al Shaw and Jeff Larson

Though the Sandy relief bill passed both the Senate and the House, many members of Congress voted no despite their own states receiving millions of dollars in federal disaster assistance in 2012.