U.S. & World News

The NSA Black Hole: 5 Basic Things We Still Don’t Know About the Agency’s Snooping

Thursday, 13 June 2013 09:17

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by Justin Elliott and Theodoric Meyer-ProPublica

Last week saw revelations that the FBI and the National Security Agency have been collecting Americans’ phone records en masse and that the agencies have access to data from nine tech companies.

But secrecy around the programs has meant even basic questions are still unanswered. Here’s what we still don’t know:

Has the NSA been collecting all Americans’ phone records, and for how long?

It’s not entirely clear.

The Guardian published a court order that directed a Verizon subsidiary to turn over phone metadata -- the time and duration of calls, as well as phone numbers and location data -- to the NSA “on an ongoing daily basis” for a three-month period. Citing unnamed sources, the Wall Street Journal reported the program also covers AT&T and Sprint and that it covers the majority of Americans. And Director of National Intelligence James Clapper himself acknowledged that the “collection” is “broad in scope.”

How long has the dragnet has existed? At least seven years, and maybe going back to 2001.

Senate Intelligence Committee chair Dianne Feinstein, D-Calif., and vice chair Saxby Chambliss, R-Ga., said last week that the NSA has been collecting the records going back to 2006. That’s the same year that USA Today revealed a similar-sounding mass collection of metadata, which the paper said had been taking place since 2001. The relationship between the program we got a glimpse of in the Verizon order and the one revealed by USA Today in 2006 is still not clear: USA Today described a program not authorized by warrants. The program detailed last week does have court approval.

What surveillance powers does the government believe it has under the Patriot Act?

That’s classified.

The Verizon court order relies on Section 215 of the Patriot Act. That provision allows the FBI to ask the Foreign Intelligence Surveillance Court for a secret order requiring companies, like Verizon, to produce records – “any tangible things” – as part of a “foreign intelligence” or terrorism investigation. As with any law, exactly what the wording means is a matter for courts to decide. But the Foreign Intelligence Surveillance Court’s interpretation of Section 215 is secret.

As Harvard Law Professor Noah Feldman recently wrote, the details of that interpretation matter a lot: “Read narrowly, this language might require that information requested be shown to be important or necessary to the investigation. Read widely, it would include essentially anything even slightly relevant — which is to say, everything.”

In the case of the Verizon order -- signed by a judge who sits on the secret court and requiring the company to hand over “all call detail records" -- it appears that the court is allowing a broad interpretation of the Patriot Act. But we still don’t know the specifics.

Has the NSA’s massive collection of metadata thwarted any terrorist attacks?

It depends which senator you ask. And evidence that would help settle the matter is, yes, classified.

Sen. Mark Udall, D-Colo., told CNN on Sunday, “It's unclear to me that we've developed any intelligence through the metadata program that's led to the disruption of plots that we could [not] have developed through other data and other intelligence.”

He said he could not elaborate on his case “without further declassification.”

Sen. Feinstein told ABC that the collection of phone records described in the Verizon order had been “used” in the case of would-be New York subway bomber Najibullah Zazi. Later in the interview, Feinstein said she couldn’t disclose more because the information is classified. (It’s worth noting that there’s also evidence that old-fashioned police work helped solve the Zazi case — and that other reports suggest the Prism program, not the phone records, helped solve the case.)

How much information, and from whom, is the government sweeping up through Prism?

It’s not clear.

Intelligence director Clapper said in his declassified description that the government can’t get information using Prism unless there is an “appropriate, and documented, foreign intelligence purpose for the acquisition (such as for the prevention of terrorism, hostile cyber activities, or nuclear proliferation) and the foreign target is reasonably believed to be outside the United States.”

One thing we don’t know is how the government determines who is a “foreign target.” The Washington Post reported that NSA analysts use “search terms” to try to achieve “51 percent confidence” in a target’s “foreignness.” How do they do that? Unclear.

We’ve also never seen a court order related to Prism -- they are secret -- so we don’t know how broad they are. The Post reported that the court orders can be sweeping, and apply for up to a year. Though Google has maintained it has not "received blanket orders of the kind being discussed in the media."

So, how does Prism work?

In his statement Saturday, Clapper described Prism as a computer system that allows the government to collect “foreign intelligence information from electronic communication service providers under court supervision.”

That much seems clear. But the exact role of the tech companies is still murky.

Relying on a leaked PowerPoint presentation, the Washington Post originally described Prism as an FBI and NSA program to tap “directly into the central servers” of nine tech companies including Google and Facebook. Some of the companies denied giving the government “direct access” to their servers. In a later story, published Saturday, the newspaper cited unnamed intelligence sources saying that the description from the PowerPoint was technically inaccurate.

The Post quotes a classified NSA report saying that Prism allows “collection managers [to send] content tasking instructions directly to equipment installed at company-controlled locations,” not the company servers themselves. So what does any of that mean? We don't know.

For more on mass surveillance in America, read our timeline of loosening laws and practices.

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No Warrant, No Problem: How the Government Can Get Your Digital Data

Thursday, 06 June 2013 18:35

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The U.S. government isn't allowed to wiretap American citizens without a warrant from a judge. But there are plenty of legal ways for law enforcement, from the local sheriff to the FBI to the Internal Revenue Service, to snoop on the digital trails you create every day. Authorities can often obtain your emails and texts by going to Google or AT&T with a simple subpoena. Usually you won't even be notified.

The latest twist: A secret court order made public by the Guardian newspaper on Wednesday shows that the FBI has successfully requested call "metadata"— including the time, duration and location of phone calls, though not what was said on the calls — under provisions of the Patriot Act. Signed by senior federal Judge Roger Vinson on April 25, the order directs Verizon Business Network Services to provide all call information to the National Security Agency each day for a three-month period.

Whether such sweeping surveillance requests should be allowed under the Patriot Act is a matter of heated debate in Congress. Sen. Dianne Feinstein, D-Calif., who chairs the Senate Select Committee on Intelligence, suggested on Thursday that Vinson's order was just a regular renewal of surveillance that's taken place for years. But disclosure of the order also prompted calls to rein in the practice, including from Sen. Richard J. Durbin, D-Ill., the No. 2 Democrat in the Senate. On another front, two senators introduced legislation in March to bolster privacy protection for emails; action is pending.

Against that backdrop, here's a look at how law enforcement can track you without a warrant:

tuff They Can GetHow They Get ItWhat the Law Says

PHONE RECORDS

Who You Called, When You Called

Listening to your phone calls without a judge's warrant is illegal if you're a U.S. citizen. But police don't need a warrant — which requires showing "probable cause" of a crime — to get just the numbers you called and when you called them, as well as incoming calls, from phone carriers. Instead, police can get courts to sign off on a subpoena, which only requires that the data they're after is relevant to an investigation — a lesser standard of evidence. The FBI can also request a secret court order for phone records related to an international terrorism or spying investigation without showing probable cause. A recent court order obtained by the Guardian newspaper shows that the FBI requested all phone records over a three-month period from Verizon Business Network Services in April. Sen. Saxby Chambliss, a Georgia Republican and the vice chair of the Senate Intelligence Committee, suggested that such court orders were routine. "This is nothing particularly new," he said at a news conference with Sen. Dianne Feinstein, the Intelligence Committee's chairwoman. "This has been going on for seven years under the auspices of the FISA authority, and every member of the United States Senate has been advised of this."

Police can get phone records without a warrant thanks toSmith v. Maryland, a Supreme Court ruling in 1979, which found that the Constitution's Fourth Amendment protection against unreasonable search and seizure doesn't apply to a list of phone numbers. The New York Times reported last November that New York's police department "has quietly amassed a trove" of call records by routinely issuing subpoenas for them from phones that had been reported stolen. According to the Times, the records "could conceivably be used for any investigative purpose." The Foreign Intelligence Surveillance Act, which Congress expanded in 2001 when it passed the Patriot Act, also allows the FBI to apply for a court order to get "any tangible things (including books, records, papers, documents, and other items)," including phone records. For example, the court order obtained by the Guardian covers all records from April 25 to July 19, which Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation, said was much more expansive than a typical warrant or a subpoena. "I've never seen a subpoena that broad," he said. The order covers "telephone metadata ... for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls."

LOCATION DATA

Your Phone Is a Tracker

Many cell phone carriers provide authorities with a phone's location and may charge a fee for doing so. Cell towers track where your phone is at any moment; so can the GPS features in some smartphones. The major cell carriers, including Verizon and AT&T, responded to at least 1.3 million law enforcement requests for cell phone locations, text messages and other data in 2011. Internet service providers can also provide location data that tracks users via their computer's IP address — a unique number assigned to each computer. The FBI can also apply for a court order to location data relevant to an international terrorism or spying investigation under FISA in the same way it requests other phone records.

Many courts have ruled that police don't need a warrant from a judge to get cell phone location data. They only have to show that, under the federal Electronic Communications Privacy Act (EPCA), the data contains "specific and articulable facts" related to an investigation — again, a lesser standard than probable cause.Delaware, Maryland and Oklahoma have proposed laws that would require police to obtain a warrant for location data; Gov. Jerry Brown of California, a Democrat, vetoed a similar bill last September. Last year, the Senate Judiciary Committee approved a bill championed by Sen. Patrick Leahy, a Vermont Democrat, which would have updated the ECPA but wouldn't have changed how location data was treated. Leahy and Sen. Mike Lee, a Utah Republican, introduced a similar bill last month, which remains in committee. Rep. Zoe Lofgren, a California Democrat, introduced a separate bill in the House of Representatives in March that would require a warrant for location data as well as emails.

IP ADDRESSES

What Computers You Used

Google, Yahoo, Microsoft and other webmail providers accumulate massive amounts of data about our digital wanderings. A warrant is needed for access to some emails (see below), but not for the IP addresses of the computers used to log into your mail account or surf the Web. According to the American Civil Liberties Union, those records are kept for at least a year.

Police can thank U.S. v. Forrester, a case involving two men trying to set up a drug lab in California, for the ease of access. In the 2007 case, the government successfully argued that tracking IP addresses was no different than installing a device to track every telephone number dialed by a given phone (which is legal). Police only need a court to sign off on a subpoena certifying that the data they're after is relevant to an investigation — the same standard as for cell phone records. FISA also allows the FBI to apply for a secret court order to get "any tangible things (including books, records, papers, documents, and other items)" relevant to an international terrorism or spying investigation. It is unclear whether IP addresses are considered "tangible things." The Foreign Intelligence Surveillance Court has issued legal opinions on how to interpret the law, but those opinions are classified.

EMAILS

Messages You Sent Months Ago

There's a double standard when it comes to email, one of the most-requested types of data. A warrant is needed to get recent emails, but law enforcement can obtain older ones with only a subpoena. Google says it received16,407 requests for data — including emails sent through its Gmail service — from U.S. law enforcement in 2012. And Microsoft, with its Outlook email service, disclosed last month that it had received 11,073 requests for data last year. Other email providers, such as Yahoo, have not made similar statistics available. In January, Googlesaid that it would lobby in favor of greater protections for email.

This is another area where the ECPA comes into play. The law gives greater protection to recent messages than older ones, using a 180-day cutoff. Only a subpoena is required for emails older than that; otherwise, a warrant is necessary. This extends to authorities beyond the FBI and the police. IRS documents released in April by the American Civil Liberties Union suggest that the IRS' Criminal Tax Division reads emails without obtaining a warrant. The bills introduced by Leahy and Lee in the Senate and Lofgren in the House would require a warrant for the authorities to get all emails regardless of age. The Justice Department, which had objected to such a change, said in March that it doesn't any longer. As with IP addresses, it's unclear whether emails are considered "tangible things" under the FISA, which would let the FBI request a secret court order for ones deemed relevant to international terrorism or spying investigations.

EMAIL DRAFTS

Drafts Are Different

Communicating through draft emails, à la David Petreaus and Paula Broadwell, seems sneaky. But drafts are actually easier for investigators to get than recently sent emails because the law treats them differently.

The ECPA distinguishes between communications — emails, texts, etc. — and stored electronic data. Draft emails fall into the latter, which get less protection under the law. Authorities need only a subpoena for them. The bills introduced by Leahy and Lee in the Senate and Lofgren in the House would change that by requiring a warrant to obtain email drafts. Like IP addresses, it's unclear whether email drafts are considered "tangible things" under FISA, which would let the FBI request a secret court order for ones deemed relevant to international terrorism or spying investigations.

TEXT MESSAGES

As With Emails, So With Texts

Investigators need only a subpoena, not a warrant, to get text messages more than 180 days old from a cell provider — the same standard as emails. Many carriers charge authorities a fee to provide texts and other information. For texts, Sprint charges $30, for example, while Verizon charges $50.

The ECPA also applies to text messages, according to Fakhoury, which is why the rules are similar to those governing emails. But the ECPA doesn't apply when it comes to actually reading texts on someone's phone rather than getting them from a carrier. State courts havesplit on the issue. Ohio's Supreme Court has ruled thatpolice need a warrant to view the contents of cell phones of people who've been arrested, including texts. But the California Supreme Court has said no warrant is needed. The U.S. Supreme Court in 2010 declined to clear up the matter. Like IP addresses, it's unclear whether text messages are considered "tangible things" under FISA, which would let the FBI request a secret court order for those deemed relevant to international terrorism or spying investigations.

CLOUD DATA

Documents, Photos, and Other Stuff Stored Online

Authorities typically need only a subpoena to get data from Google Drive, Dropbox, SkyDrive, and other services that allow users to store data on their servers, or "in the cloud," as it's known.

The law treats cloud data the same as draft emails — authorities don't need a warrant to get it. But files that you've shared with others — say, a collaboration using Google Docs — might require a warrant under the ECPA if it's considered "communication" rather than stored data. "That's a very hard rule to apply," says Greg Nojeim, a senior counsel with the Center for Democracy & Technology. "It actually makes no sense for the way we communicate today." Like IP addresses, it's unclear whether files stored in the cloud are considered "tangible things" under FISA, although the law specifically states that "documents" are included. If cloud data is covered by FISA, it would let the FBI request a secret court order for data deemed relevant to international terrorism or spying investigations.

SOCIAL MEDIA

The New Privacy Frontier

When it comes to sites like Facebook, Twitter and LinkedIn, the social networks' privacy policies dictate how cooperative they are in handing over users' data. Facebook says it requires a warrant from a judge to disclose a user's "messages, photos, videos, wall posts, and location information." But it will supply basic information, such as a user's email address or the IP addresses of the computers from which someone recently accessed an account, under a subpoena. Twitter has reported that it received 1,494 requests for user information from U.S. authorities in 2012. The company says it received 60 percent of requests in the second half of 2012 through subpoenas, 11 percent through other court others, 19 percent through search warrants and 10 percent through other means. Twitter says that "non-public information about Twitter users is not released except as lawfully required by appropriate legal process such as a subpoena, court order, or other valid legal process."

Courts haven't issued a definitive ruling on social media. In September, a Manhattan Criminal Court judge upheld a prosecutor's subpoena for information from Twitter about an Occupy Wall Street protester arrested on the Brooklyn Bridge in 2011. It was the first time a judge had allowed prosecutors to use a subpoena to get information from Twitter rather than forcing them to get a warrant; the case is ongoing. Like IP addresses, it's unclear whether posts on social media are considered "tangible things" under FISA, which would allow the FBI to request a secret court order for those deemed relevant to international terrorism or spying investigations.

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Four Years Ago Obama Promised to Investigate Afghan Massacre. Has Anything Happened Since?

Wednesday, 05 June 2013 07:05

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In his first year in office, President Barack Obama pledged to “collect the facts” on the death of hundreds, possibly thousands, of Taliban prisoners of war at the hands of U.S.-allied Afghan forces in late 2001.

Almost four years later, there’s no sign of progress.

When asked by ProPublica about the state of the investigation, the White House says it is still “looking into” the apparent massacre. Yet no facts have been released and it’s far from clear what, if any, facts have been collected.

Human rights researchers who originally uncovered the case say they’ve seen no evidence of an active investigation.

The deaths happened as Taliban forces were collapsing in the wake of the American invasion of Afghanistan. Thousands of Taliban prisoners had surrendered to the forces of a U.S.-supported warlord named Abdul Rashid Dostum. The prisoners, say survivors andother witnesses, were stuffed into shipping containers without food or water. Many died of suffocation. Others were allegedly killed when Dostum’s men shot at the containers.

A few months later, a mass grave was found nearby in Dasht-i-Leili, a desert region of northern Afghanistan.

The New York Times reported in 2009 that the Bush administration, sensitive to criticism of a U.S. ally, had discouraged investigations into the incident. In response, Obama told CNN that “if it appears that our conduct in some way supported violations of the laws of war, I think that we have to know about that."

A White House spokeswoman told ProPublica that there has indeed been some kind of review – and that it’s still ongoing: “At the direction of the President, his national security team is continuing its work looking into the Dasht-i-Leili massacre.” She declined to provide more details.

“This seems quite half-hearted and cynical,” said Susannah Sirkin, director of international policy at Physicians for Human Rights, the group that discovered the grave site in 2002 and since then has pushed for an investigation.

The group sent a letter to the president in December 2011, the tenth anniversary of the incident. In a follow-up meeting some months later, senior State Department officials told Physicians for Human Rights that there was nothing new to share.

“This has been a hot potato that no one wanted to deal with, and now it’s gone cold,” said Norah Niland, former director of human rights for the United Nations in Afghanistan.

Human rights advocates have long said the responsibility for a comprehensive investigation lies with the U.S., because American forces were allied with Dostum and his men at the time. Surviving prisoners have also claimed that Americans were present when the containers were loaded, though that’s never been corroborated.

A Pentagon spokesman told ProPublica that the Department of Defense “found no evidence of U.S. service member participation, knowledge, or presence. A broader review of the facts is beyond D.O.D.’s purview.” That initial review has never been made public.

At this point, say advocates, an investigation should address not just the question of U.S. involvement, but also what the U.S. did in the years that followed to foster accountability.

“I’m not saying Dostum ordered these people killed, and I’m not saying U.S. troops participated,” said Stefan Schmitt, a forensic specialist with Physicians for Human Rights. “All I’m saying is there are hundreds if not thousands of people that went missing. In a country that’s looking to have peace, to be under the rule of law, you need to answer these questions.”

Initially excited by Obama’s statement, researchers with Physicians for Human Rights peppered the administration with their findings. But the response was “murky at best,” said Sirkin.

“We were never very clear on who within the administration was delegated the task,” she said. Current and former administration officials interviewed by ProPublica couldn’t say which agency or department had the job.

Sirkin and others eventually resigned themselves to the fact that Obama, in his televised remarks, had not specifically called for a full investigation. With the U.S. now withdrawing from Afghanistan, many observers say it’s no surprise that investigating Dasht-i-Leili is no longer a priority.

Dostum still holds considerable sway in Northern Afghanistan, though he has fallen in and out of favor with the U.S. and with Afghan president Hamid Karzai. The Times recently reported Dostum is one of several former warlords to whom Karzai passes on thousands of dollars in cash he receives from the CIA each month. (We were unable to reach Dostum himself for this story.)

The Obama administration has been cool toward him in recent years, saying ahead of Afghanistan’s elections in 2009 that the U.S. “maintains concerns about any leadership role for Mr. Dostum in today's Afghanistan.”

Back in 2001, Dostum was far more important to the U.S. He was a U.S. proxy, fighting the Taliban as part of the Northern Alliance. American Special Forces famously rode on horseback alongside Dostum’s men, advising and calling in airstrikes. The alliance took the city of Mazar-i-Sharif from the Taliban in one of the first major victories of the invasion in early November 2001.

The shipping container deaths occurred a few weeks later, when Taliban fighters who had surrendered to the Northern Alliance at the city of Kunduz were en route to a prison about 200 miles away.

That winter, Physicians for Human Rights discovered a mass grave at Dasht-i-Leili. A preliminary investigation exhumed several bodies that appeared to have died from suffocation. Stories began to circulate in the region andNewsweek and others published detailed accounts from surviving prisoners, truck drivers, and other witnesses.

The Times also reported that an FBI agent interviewing new Afghan arrivals to Guantanamo Bay prison in early 2002 heard consistent accounts of prisoners “stacked like cordwood,” and death by suffocation and shooting. When the agent pressed for an investigation, he was reportedly told it was not his responsibility.

Dostum has said that he would welcome an investigation. He said that some 200 prisoners had indeed died in transit, but that the deaths were unintentional, the result of battlefield wounds.

Other estimates put the toll much higher.

A widely cited State Department memo from fall 2002 said that “the actual number may approach 2,000.”

Around the same time, then-Secretary of State Colin Powell tasked his Ambassador for War Crimes, Pierre-Richard Prosper, with looking into Dasht-i-Leili. Prosper told ProPublica that due to the U.S. alliance with Dostum, Washington felt the U.S. should not take the lead in an investigation.

“We were in the middle of fighting, and we thought we should keep the lines clear, let someone else, the U.N. or Afghans, handle this,” said Prosper.

But the newly installed Afghan government had neither the will nor the resources for a thorough investigation, and U.N. officials said they could not guarantee security. Witnesses and others involved in Dasht-i-Leili had already been killed and harassed,according to State Department memos.

A declassified Defense Department memo from February 2003 indicates the U.S. was not providing security for an investigation. The memo’s author, Marshall Billingslea, told the Times in 2009, “I did get the sense that there was little appetite for this matter within parts of D.O.D.” (Billingslea did not respond to our requests for comment.)

As the years went by, no one from the U.S., the U.N., or Afghanistan guarded the grave site. In 2008, reporters and researchers found empty pits where they had once found human remains. Satellite photos obtained later showed what appeared to be earth-moving equipment in the desert in 2006. Locals told McClatchy that Dostum’s men had dug up the graves.

After Obama pledged in 2009 to look into the case, a parallel inquiry was begun the next year in the Senate Foreign Relations Committee, chaired by current Secretary of State John Kerry.

The fate of that investigation is also unclear. The lead investigator, John Kiriakou, was a former CIA officer who was caught up in a criminal leak prosecution and is now in prison. Other Senate staffers could not provide details on Kiriakou’s efforts. Physicians for Human Rights says contact from the committee fizzled out within a year.

New attention to Dasht-i-Leili had also been sparked within the U.N.’s mission in Afghanistan and the organization’s High Commission on Human Rights, former U.N. officials said.

However, Peter Galbraith, who was the U.N.’s deputy special representative for Afghanistan until the fall of 2009, told ProPublica that “an investigation would’ve required a push from the U.S. It required the cooperation of the coalition forces.” (Neither the U.N. mission in Afghanistan nor the office of the High Commissioner on Human Rights responded to our requests for comment.)

The mass grave at Dasht-i-Leili is one of many left unexamined in Afghanistan. In late 2011, the nation’s Independent Human Rights Commission concluded a massive report on decades of war crimes and human rights abuses, which reportedly documents 180 mass graves across the country. The region near Dasht-i-Leili is also believed to hold the remains of civilians massacred by the Taliban in 1998, in what Human Rights Watchcalled “one of the single worst examples of killings of civilians in Afghanistan's twenty-year war.” In all, the report named 500 individuals responsible for mass killings – some of whom hold prominent government positions.

American and Afghan officials reportedly discouraged publication of the report, and the commission has still not made it public. “It’s going to reopen all the old wounds,” an American Embassy official told the New York Times last year. Afghanistan also recently adopted an amnesty law offering blanket immunity for past war crimes.

Nader Nadery, the commissioner responsible for the report, told ProPublica: “I haven’t seen any political or even rhetorical support of investigations into Dasht-i-Leili or any other investigation into past atrocities, from either Bush or Obama.”

A History of Inaction

Nov. 24, 2001: As Taliban forcessurrender to the U.S.-backed Northern Alliance in Afghanistan, several thousand prisoners of war are transported in shipping containers. Survivors and witnesses later allege as many as 2,000 prisoners died -- some suffocated while others were shot -- and are buried in a grave site at Dasht-i-Leili.

February 2002: Physicians for Human Rights visits the graves at Dasht-i-Leili. That spring, under the auspices of the U.N., PHR conducts an initial forensic investigation of the graves, exhuming a number of recent remains that indicated death by suffocation.

Spring and Summer 2002: Media reports detail eyewitness allegations about deaths in the containers.

Fall 2002: U.S., U.N. and Afghan authorities say that a full investigation is warranted, but none gets off the ground.

2006: Satellite photos show disturbances at the grave sites at Dasht-i-Leili.

2008: Researchers and reporters find empty pits where graves had once been.

July 10, 2009: The New York Timesreports that Bush administration officials had discouraged U.S. government investigations into Dasht-i-Leili.

July 13, 2009: Obama tells CNN, "I've asked my national security team to...collect the facts for me that are known."

Early 2010: The Senate Foreign Relations Committee begins an inquiry into Dasht-i-Leili. The scope and result of that investigation is not clear.

May 2013: A White House spokesperson says that the president's "national security team is continuing its work looking into the Dasht-i-Leili massacre."

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Five Ways Congress is Trying to Curb Rape in the Military

Wednesday, 05 June 2013 16:58

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When the Senate Armed Services Committee held a hearing on the U.S. military’s sexual assault crisis, lawmakers grilled Army, Navy, Air Force and Marine officials on the alarmingly high number of rapes and other sexual abuses in their ranks.

Political momentum to address the problem has been building since the Pentagonreleased statistics last month showing that sexual assault increased by 35 percent between 2010 and 2012. The outcry grew louder when a string of scandals came to light, including alleged sexual assaults by Army and Air Force officials who were in charge of preventing sexual abuse.

Senators have rushed to draft legislation to hold attackers accountable and provide support for victims. But at the Senate hearing, officials steadfastly opposed most major changes in the way sexual assault cases are prosecuted. “It will undermine the readiness of the force ... [and] will hamper the timely delivery of justice,” said Army Chief of StaffRay Odierno.

Here’s a rundown of key congressional proposals and what the military is saying about them.

1. Stop giving military commanders the final say on rape convictions

Under the military’s criminal procedures, commanders have clemency powers, which means they can dismiss military court convictions “for any reason or no reason.” The policy came under fire this spring when Air Force Lt. Gen. Craig Franklin overturned a jury's ruling that Lt. Col. James Wilkerson, a fighter pilot, was guilty of aggravated sexual assault. Another official, Air Force Lt. Gen. Susan Helms, was blocked from a promotionin May for throwing out a captain’s sexual assault conviction without any public explanation.

In April, Defense Secretary Chuck Hagel voiced support for stripping commanders of this power. Under Hagel’s proposal, commanders could still reduce someone’s sentence but would have to submit a reason in writing. Sens. Claire McCaskill, D-Mo., and Barbara Boxer, D-Calif., have called for similar changes. Rep. Jackie Speier, D-Calif., introduced a House bill that goes further, removing a commander’s authority to overturn or reduce a judge’s sentence.

Military officials are open to reforming the policy, though they say the Wilkerson case inflated outrage over a rarely-used power. Sen. Lindsey Graham, R-S.C., a member of the Armed Services Committee and former Air Force lawyer, has been the only lawmaker to speak out against the proposed change in policy.

2. Have lawyers determine which assault cases are credible — not the defendant’s boss

Sen. Kirsten Gillibrand, D-N.Y., has called for the most major shift in how the military tries sexual assault cases. Now, commanders decide which cases are investigated and prosecuted, and which are thrown out. Gillibrand’s bill proposes giving independent military prosecutors that power for sex crimes and other serious charges. Commanders have an incentive to ignore rape allegations, advocates of the change say, because it reflects poorly on their leadership.

Military officials are strongly opposed to such a change in authority. “The consequences of such a decision would be ... extraordinarily damaging to the nation’s security,” Army Gen. Martin Dempsey wrote in a letter to the Armed Services Committee chairman, Sen. Carl Levin, D-Mich. The change would “undermine good order and discipline” by sending a message that commanders “cannot be trusted,” Dempsey said.

3. Make sure a sex crime conviction means losing your job

Sen. McCaskill has led a bipartisan effort to require that anyone convicted of “rape, sexual assault, forcible sodomy, or an attempt to commit any of those offenses” be dismissed or given a dishonorable discharge.

At the hearing, McCaskill argued that a soldier’s job performance shouldn’t be a factor in deciding whether to move forward with sexual assault cases. Currently, commanders may consider it when deciding whether to prosecute. “The facts of a felony are the facts of a felony,” McCaskill said. “I don’t care how good a pilot it is.”

Lt. Gen. Richard C. Harding of the Air Force argued during the hearing that a defendant’s character should be relevant in determining the case but should not have “overriding weight.”

4. Scrutinize officers appointed to prevent sexual assault

In the past month, there have been not one but two instances of soldiers working in Sexual Assault Prevention and Response offices charged with sexual assault. The chief of the Air Force’s prevention office was arrested last month for groping a woman. A week later, an Army sergeant working as a sexual assault program coordinator was arrested on multiple accusations of sexual abuse and for running a prostitution ring.

Hagel immediately demanded that all officers in the services’ Sexual Assault Prevention and Response branches be retrained, rescreened, and recredentialed. Since then, Sens. Jeanne Shaheen, D-N.H., and Deb Fischer, R-Neb., have introduced a bill that would elevate those jobs to a higher status, requiring stricter screening and more certification. In a letter to Secretary Hagel, Shaheen and McCaskill wrote that “In many cases, no interviews are required, and the commander plays a hands-off role in choosing who will perform those duties.” The bill would require a commander to pick someone for the post.

5. Make it easier for sexual assault victims to access disability benefits

While the Senate was hearing testimonies by military officials, the House unanimously passed legislation to increase access to disability benefits for sexual assault victims in the military. Veterans battling military sexual trauma face a higher burden of proof than those with post-traumatic stress disorder, or PTSD. And because most sexual assaults go unreported, there is often little evidence available. Under the proposed law, veterans would only have to show they were diagnosed with a mental health condition that stems from military sexual assault.

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Now, You Can’t Ban Guns at the Public Pool

Tuesday, 04 June 2013 08:14

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Article sponsored by Richard Gandon Photography

by Lois Beckett-ProPublica

If you feel unsafe at a public pool in Charleston, W.Va., you may soon have the right to lie there on a towel with a handgun at your side.

For 20 years, Charleston has been an island of modest gun restrictions in a very pro-gun rights state. But its gun laws — including a ban on guns in city parks, pools and recreation centers — are now likely to be rolled back, the latest victory in a long-standing push to deny cities the power to regulate guns.

Since the 1980s, the National Rifle Association and other groups have led a successful campaign to get state legislatures to limit local control over gun regulations. These "preemption" laws block cities from enacting their own gun policies, effectively requiring cities with higher rates of gun violence to have the same gun regulations as smaller towns.

Before 1981, when an Illinois town banned the possession of handguns, just a handful of states had preemption laws on the books. Today, 42 states block cities from making gun laws, according to the Law Center to Prevent Gun Violence. Even Illinois, which has long allowed its cities to pass gun control measures, is about to invalidate local restrictions on concealed handguns and ban any future local regulation of assault weapons.

Gun rights advocates argue that allowing cities to have their own gun laws creates an impossible situation for law-abiding gun owners, who cannot be expected to read ordinances for every town they might pass through.

The preemption campaign has racked up so many victories nationwide, it's now focusing on holdouts like Charleston, population 51,000.

Charleston's current gun restrictions include a three-day waiting period to buy a handgun, and a limit of one handgun purchase per month, as well as bans on guns on publicly owned property, such as parks and pools.

West Virginia Delegate Patrick Lane crafted an amendment to an unrelated state bill, now passed, that will likely force Charleston to erase those restrictions.

"Crime could happen anyplace. You obviously want to be able to defend yourself and your family if something happens," Lane said, when asked why anyone would want to bring a gun to a public pool.

The NRA did not respond to requests for comment, but its website calls Charleston's restrictions "misguided" and "unreasonable." Its site has closely tracked the progress of the repeal of the ordinances, which it states "would have no negative impact whatsoever on Charleston." The site has repeatedly criticized Charleston's Republican mayor for "speaking out publicly against this pro-gun reform."

It's not clear what effect the spread of preemption has had on public safety. "It's very hard to determine what causes crime to go up and down, because there are so many variables," said Laura Cutilletta, a senior attorney at the Law Center to Prevent Gun Violence.

But in Charleston, Police Chief Brent Webster says he's worried about losing the city's current restrictions, in particular the law banning guns at city pools, concerts and sporting events.

"You will have some citizens say, 'I can do that now, so I'm going to do that,'" Webster said. "I am greatly concerned."

"When they're diving off the diving board, is that [gun] going to be in a book bag? Is that going to be lying under their towel and an eight-year-old kid is walking through the pool area and picks it up?"

Two of the city's former police chiefs also say they're worried about losing the ban on guns in public places that attract kids.

"That has nothing to do with the Second Amendment right. It has to do with public safety," former Chief Dallas Staples said.

Charleston's mayor, Danny Jones, who's fought to keep the gun restrictions, said the city now has no choice but to do what the state legislature wants and roll them back. The state legislature packaged the rollback requirement with a popular measure giving Charleston more leeway in how it raises taxes.

"I'm still reeling from all this, because it's going to affect us in a very negative way," Jonestold reporters after the law passed.

Keith Morgan, president of the West Virginia Citizen's Defense League, a gun rights group, said the group been pushing for an end to Charleston's ordinances for years, and that the change would protect law-abiding gun owners from a "minefield" of conflicting local laws.

Lane, the West Virginia delegate, also said that gun-owning commuters were put at risk as they traveled through different cities with different rules.

But neither Lane nor Morgan could cite an example of a gun owner being prosecuted for accidentally breaking the law during their commute, or by accidentally wandering into a city park. When Morgan himself once showed up at the Charleston Civic Center with a gun, he said, he was simply asked to leave, and he did. In lawsuits the West Virginia Citizen's Defense League filed against gun ordinances in Charleston and Martinsburg, the plaintiffs cited their fear of potential prosecution.

The main burden of Charleston's laws for gun owners has been the inconvenience of waiting three days to purchase a handgun, and only being able to buy one handgun at a time — something that can be particularly troublesome "if you're buying a present for your family and there happens to be a Christmas sale at the retailer," Lane said.

Former Charleston law enforcement officers say the handgun restrictions, passed in 1993, helped the city tamp down on the drugs-for-guns trade that was rampant at the time. But since then, gun stores have sprung up right at the city's borders, said Steve Walker, a former Charleston police officer and now president of the West Virginia branch of the Fraternal Order of Police.

"Honestly, I don't know whether with them repealing it, it is going to help them or hurt them," Walker said of the handgun restrictions.

State legislators said that city officials are overplaying their fears.

"I don't see everyone with a concealed carry permit deciding to go to a pool and carry a gun," said Democrat Mark Hunt, a state delegate, "So what if they do? They're law-abiding citizens."

Charleston’s mayor said he has a plan if somebody brings a gun poolside: “We're going to close down the pool."

Article sponsored by Richard Gandon Photography

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