Wednesday, January 30, 2013

Obama's Flip-Flops on Money in Politics: A Brief History

by Justin Elliott ProPublica 

When President Obama told supporters that he would morph his campaign into a new nonprofit that would accept unlimited corporate donations, the announcement set off a familiar round of griping from campaign finance reformers.

The creation this month of Organizing for Action, which will promote the president's second-term agenda, appears to be the fourth reversal by Obama on major money-in-politics issues since 2008.
"No big bank or corporation will donate million-dollar checks to OFA without the expectation that it will impact which issues they engage on, and that's very troubling," said Adam Green of the Progressive Change Campaign Committee.

The Washington Post noted that in reorganizing his campaign as a tax-exempt social welfare group, the president is embracing a structure that has been criticized for allowing anonymous money into politics.
Conservatives who've been attacked by the Obama camp for their reliance on such "dark money" groups called out the president's "brazen hypocrisy." Neither the White House nor Organizing for America responded to requests for comment.

Here's a brief history of Obama's other shifts on money-in-politics issues going back to 2008:
  • Public financing
In November 2007, then-Sen. Barack Obama pledged to take part in the presidential public financing system for the general election, calling himself "a longtime advocate for public financing of campaigns." Under the system, created in the wake of Watergate, a candidate receives taxpayer money ($84 million in 2008) and cannot accept most private donations or spend beyond the amount of the government grant.
Less than a year later, in June 2008, Obama reversed himself and announced he was opting out of the system. He maintained he still supported the system in principle but said it should be reformed.
Obama became the first candidate to decline general election public financing since the creation of the system and went on to raise a then-record $745 million for the cycle. He outspent John McCain, who did accept public money, by four-to-one. Obama's 2008 decision generally takes at least some of the blame from campaign finance observers for killing the system.
Neither Obama nor Mitt Romney accepted public financing in the 2012 race. The Obama campaign raised $782 million for the cycle.
  • Super PACs
When the U.S. Supreme Court issued its 2010 Citizens United decision, opening the way for the creation of super PACs financed with unlimited corporate or individual money, Obama became the ruling's biggest critic.
"Last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections," Obama said in his State of the Union address a few days after the decision. "I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities."
That criticism turned into a pledge not to use the new funding vehicles. In July 2011, Obama campaign spokesman Ben LaBolt told the Washington Post: "Neither the president nor his campaign staff or aides will fundraise for super PACs. Our campaign will continue to lead the way when it comes to transparency and reform."
Seven months later, the campaign reversed itself and embraced a super PAC founded by former White House aides called Priorities USA Action. "[O]ur campaign has to face the reality of the law as it currently stands," wrote campaign manager Jim Messina in a blog post.
With the blessing of the campaign, top Obama aides, such as then-Chief of Staff Jack Lew and confidantes like Rahm Emanuel, were dispatched to solicit super PAC donations from Democratic millionaires and billionaires. Priorities USA ultimately spent more than $60 million to help re-elect the president.
  • Inaugural festivities funding
After Obama's victory in 2008, his inaugural committee abided by what it called "an unprecedented set of limitations on fundraising as part of President-elect Obama's pledge to put the country on a new path." That meant taking no corporate money and no individual contributions in excess of $50,000 to pay for the myriad parties and balls that end up costing tens of millions of dollars.
The second time around, Obama reversed the policy. The inaugural committee organizing this month's inaugural festivities accepted corporate money and imposed no limits on giving. A spokesperson cited the need to "meet the fund-raising requirements for this civic event after the most expensive presidential campaign in history."
  • Unlimited special interest spending
Just a few months ago, the Obama campaign sent me a memo on the president's campaign finance record, highlighting his repeated denunciations of special interest money in politics.
"That's one of the reasons I ran for President: because I believe so strongly that the voices of ordinary Americans were being drowned out by the clamor of a privileged few in Washington," he said in May 2010, decrying the way Citizens United "gives corporations and other special interests the power to spend unlimited amounts of money — literally millions of dollars — to affect elections throughout our country."
In 2012, the Obama campaign specifically called out social welfare, or 501(c)(4),  groups that spent hundreds of millions of dollars of anonymous money on political ads.
That's why campaign finance reformers are so angry: Organizing for Action is a 501(c)(4) that will advocate for the president's second-term agenda.
The group has said that despite its status, it will voluntarily disclose donors. But it's not clear whether that will involve full, prompt disclosure of who is giving and how much, or simply providing a list of names at some point.
A spokeswoman for the new group told NBC this week the disclosure issue is "still being worked out."
Unnamed Democratic officials have told media outlets that the group will take corporate money (though not donations from registered lobbyists). Indeed, at a meeting this month at the Newseum in Washington, Obama campaign aides pitched top Democratic donors, reported Politico, which obtained a ticket to the event.
The meeting was sponsored by a trade association founded by Fortune 100 companies, including UnitedHealthcare, Microsoft, Wal-Mart, and Duke Energy.
Social welfare groups are formed to promote the common good and may be involved in politics. Under IRS rules, they are not supposed to be primarily engaged in campaigns.
It's unclear whether Organizing for Action will get involved in electoral politics as other such nonprofits have in recent years. The group's spokeswoman told NBC it will run "issue" ads to support Obama's agenda — but that's a category of political advocacy that has been open to wide interpretation.

Sunday, January 27, 2013

Message from Mexico: U.S. Is Polluting Water It May Someday Need to Drink

by Abrahm Lustgarten, ProPublica
Mexico City plans to draw drinking water from a mile-deep aquifer, according to a report in the Los Angeles Times. The Mexican effort challenges a key tenet of U.S. clean water policy: that water far underground can be intentionally polluted because it will never be used.

U.S. environmental regulators have long assumed that reservoirs located thousands of feet underground will be too expensive to tap. So even as population increases, temperatures rise, and traditional water supplies dry up, American scientists and policy-makers often exempt these deep aquifers from clean water protections and allow energy and mining companies to inject pollutants directly into them.

As ProPublica has reported in an ongoing investigation about America's management of its underground water, the U.S. Environmental Protection Agency has issued more than 1,500 permits for companies to pollute such aquifers in some of the driest regions. Frequently, the reason was that the water lies too deep to be worth protecting.

But Mexico City's plans to tap its newly discovered aquifer suggest that America is poisoning wells it might need in the future.

Indeed, by the standard often applied in the U.S., American regulators could have allowed companies to pump pollutants into the aquifer beneath Mexico City.

For example, in eastern Wyoming, an analysis showed that it would cost half a million dollars to construct a water well into deep, but high-quality aquifer reserves. That, plus an untested assumption that all the deep layers below it could only contain poor-quality water, led regulators to allow a uranium mine to inject more than 200,000 gallons of toxic and radioactive waste every day into the underground reservoirs.
But south of the border, worsening water shortages have forced authorities to look ever deeper for drinking water.

Today in Mexico City, the world's third-largest metropolis, the depletion of shallow reservoirs is causing the ground to sink in, iconic buildings to teeter, and underground infrastructure to crumble. The discovery of the previously unmapped deep reservoir could mean that water won't have to be rationed or piped into Mexico City from hundreds of miles away.

According to the Times report, Mexican authorities have already drilled an exploratory well into the aquifer and are working to determine the exact size of the reservoir. They are prepared to spend as much as $40 million to pump and treat the deeper water, which they say could supply some of Mexico City's 20 million people for as long as a century.

Scientists point to what's happening in Mexico City as a harbinger of a world in which people will pay more and dig deeper to tap reserves of the one natural resource human beings simply cannot survive without.
"Around the world people are increasingly doing things that 50 years ago nobody would have said they'd do," said Mike Wireman, a hydrogeologist with the EPA who also works with the World Bank on global water supply issues.

Wireman points to new research in Europe finding water reservoirs several miles beneath the surface — far deeper than even the aquifer beneath Mexico City — and says U.S. policy has been slow to adapt to this new understanding.

"Depth in and of itself does not guarantee anything — it does not guarantee you won't use it in the future, and it does not guarantee that that it is not" a source of drinking water, he said.
If Mexico City's search for water seems extreme, it is not unusual. In aquifers Denver relies on, drinking water levels have dropped more than 300 feet. Texas rationed some water use last summer in the midst of a record-breaking drought. And Nevada — realizing that the water levels in one of the nation's largest reservoirs may soon drop below the intake pipes — is building a drain hole to sap every last drop from the bottom.

"Water is limited, so they are really hustling to find other types of water," said Mark Williams, a hydrologist at the University of Colorado at Boulder. "It's kind of a grim future, there's no two ways about it."
In a parched world, Mexico City is sending a message: Deep, unknown potential sources of drinking water matter, and the U.S. pollutes them at its peril.

Thursday, January 24, 2013

How the NRA Undermined Congress' Last Push for Gun Control

by Joaquin Sapien, ProPublica
Last week, President Obama unveiled sweeping proposals on gun control, including a ban on military-style assault weapons, a reduction of ammunition magazine capacity and stiffer background checks on gun buyers.

National Rifle Association President David Keene quickly accused the Obama administration of being opportunistic. The president is "using our children to pursue an ideological anti-gun agenda," he said.
The NRA has already begun to lobby on Capitol Hill to counter the administration's effort.

To get a sense of what the NRA might do, it's helpful to look at how it scored a victory during the last major federal initiative to tighten gun control.

After a Virginia Tech student killed 32 students and faculty in April 2007, the Bush administration proposed legislation that would require all states to share the names of residents involuntarily committed to mental health facilities. The information would be provided to a Federal Bureau of Investigation database.
The idea, in part, was to help gun dealers get important information about whether potential customers were mentally ill.

In order to get the support of the NRA, Congress agreed to two concessions that had long been on the agenda of gun rights advocates — concessions that later proved to hamstring the database.
The NRA wanted the government to change the way it deemed someone "mentally defective," excluding people, for example, who were no longer under any psychiatric supervision or monitoring. The group also pushed for a way for the mentally ill to regain gun rights if they could prove in court that they'd been rehabilitated.

The NRA found allies on both sides of the aisle to champion the concessions.
Rep. John Dingell, D-Mich., reportedly pushed the provisions, ultimately with the support of the bill's lead sponsor, Rep. Carolyn McCarthy, D-N.Y. (McCarthy's husband was killed and her son wounded in a 1993 shooting on the Long Island Railroad.)
The NRA agreed to the support the bill, in exchange for provisions pushing states to create gun rights restoration programs.

Here's how it worked. It would cost money for states to share their data: A state agency would have to monitor the courts, collect the names of people who had been institutionalized, and then send that information to the FBI on a regular basis.

So, to help pay for data-sharing Congress created $375 million in annual federal grants and incentives. But to be eligible for the federal money, the states would have to set-up a gun restoration program approved by the Justice Department. No gun rights restoration program, no money to help pay for sharing data.
A spokesman for Dingell's office did not respond to calls for comment on this story. A McCarthy spokesman, Shams Tarek, said the congresswoman is now working on new legislation to "provide more incentives and stiffen penalties for states to put names in the database."
"We definitely think there's a lot of room for improvement," said Tarek.

The NRA supported Dingell and McCarthy's version of the bill, but the group won further concessions when the legislation reached the Senate.

Sen. Tom Coburn, R-Okla., who once joked he'd like to bring a gun with him to the Senate floor, blocked the legislation, citing concerns about privacy and spending.
He negotiated language that, among other things, would allow a person's application for gun restoration rights to be granted automatically if an agency didn't respond within 365 days of the application and allowed people to have their attorney's fees reimbursed if they were forced to go to court to restore their rights.
The final bill was sent to President Bush for his signature in January 2008.
The NRA praised Coburn and released a statement calling the law a victory for gun owners: "After months of careful negotiation, pro-gun legislation was passed through Congress today." (The NRA didn't respond to calls for comment.)
In an email, a Coburn spokesman told ProPublica that the senator "does not operate as an agent of the NRA when considering legislation regarding gun rights" and pointed to a recent statement on the president's gun proposals. (In the statement, Coburn said he supports improving the mental health database, but said overall, "we first must ensure our constitutional rights and individual liberties.")
Since the bill's passage, two analyses have shown that the NICS database has significant gaps, partly because of the way the NRA managed to tweak the legislation. Many states aren't sharing all of their mental health records.

A July 2012 report by the Government Accountability Office, the investigative arm of Congress, found that while the overall number of records increased exponentially since the law passed, the rise is largely due to cooperation from just 12 states.
The non-profit group Mayors Against Illegal Guns also released a report in 2011 showing that many states have failed to fulfill their obligations to report data on the mentally ill to the federal government. While Virginia and a few others have disclosed tens of thousands of records, 23 others and the District of Columbia reported fewer than 100 records. Seventeen states reported fewer than 10 records and four submitted no data at all.

"Millions of records identifying seriously mentally ill people and drug abusers as prohibited purchasers are missing from the federal background check database because of lax reporting by state agencies," the report said.

According to the report, the reasons for such uneven compliance vary by state. Some states don't turn over data because their privacy laws prevent them from doing so. Some states have a different interpretation on what kind of data needs to be provided, or what, exactly, constitutes "mentally ill" or "involuntarily committed."

Still others simply can't afford the expense of gleaning the data from the courts, providing it to the relevant state agency and then passing it on to the federal government.
The NRA-backed language creates problems for these states.
As a New York Times investigation found, many states haven't qualified for federal funding to share their data because they haven't established gun rights restoration programs.

In 2012, only 12 states received federal grants, according to the Bureau of Justice Statistics.
A Coburn spokesman pointed out that some states have had trouble setting up restoration programs because gun control advocates in those states have protested them.

While mental health data has remained sparse, some states have made it easier for the mentally ill to restore their gun rights. As the Times noted, in Virginia some people have regained rights to guns by simply writing a letter to the state. Other Virginians got their rights back just weeks or months after being hospitalized for psychiatric care.
It's difficult to know just how many people in Virginia have had their gun rights restored because no agency is responsible for keeping track.
Despite the limitations of the mental health database, some gun control advocates still see it as better than nothing.

"The fact that so many states have been able to get so many records into the database does demonstrate a willingness on the part of certain groups to work on this issue and that's a good sign. The others really need to step up," said Lindsay Nichols a staff attorney at the San Francisco-based Law Center to Prevent Gun Violence.

The group, then known as the Legal Community Against Violence, was one of several gun control organizations that opposed the legislation when it was first signed into law.
Nichols is optimistic that the NRA won't succeed in commandeering the gun control debate the way the group did after Virginia Tech.
"I think there's new awareness among the public and legislators that we need to take this issue seriously and it's not an issue where the public is going to accept political wrangling."

Monday, January 21, 2013

Hacktivism: Civil Disobedience or Cyber Crime?

by Christie Thompson, ProPublica

 When Reddit co-founder and internet freedom activist Aaron Swartz committed suicide last Friday, he was facing up to 13 felony counts, 50 years in prison, and millions of dollars in fines. His alleged crime? Pulling millions of academic articles from the digital archive JSTOR.
Prosecutors allege that Swartz downloaded the articles because he intended to distribute them for free online, though Swartz was arrested before any articles were made public. He had often spoken publicly about the importance of making academic research freely available.
Other online activists have increasingly turned to computer networks and other technology as a means of political protest, deploying a range of tactics — from temporarily shutting down servers to disclosing personal and corporate information.
Most of these acts, including Swartz's downloads, are criminalized under the federal Computer Fraud and Abuse Act (CFAA), an act was designed to prosecute hackers. But as Swartz's and other "hacktivist" cases demonstrate, you don't necessarily have to be a hacker to be viewed as one under federal law. Are activists like Swartz committing civil disobedience, or online crimes? We break down a few strategies of "hacktivism" to see what is considered criminal under the CFAA.
Publishing Documents
Accessing and downloading documents from private servers or behind paywalls with the intent of making them publicly available.
Swartz gained access to JSTOR through MIT's network and downloaded millions of files, in violation of JSTOR's terms of service (though JSTOR declined to prosecute the case). Swartz had not released any of the downloaded files at the time his legal troubles began.
The most famous case of publishing private documents online may be the ongoing trial of Bradley Manning. While working as an intelligence analyst in Iraq, Manning passed thousands of classified intelligence reports and diplomatic cables to Wikileaks, to be posted on their website.
"I want people to see the truth… regardless of who they are… because without information, you cannot make informed decisions as a public," Manning wrote in an online chat with ex-hacker Adrian Lamo, who eventually turned Manning in to the Department of Defense.
Both Swartz and Manning were charged under a section of the CFAA that covers anyone who "knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer…"
The charges hinge on an interpretation of this section that says anyone in violation of a website's terms of service is an unauthorized user. Because they're unauthorized, all of their activity on that website could therefore be considered illegal. Both were charged with felonies under the CFAA, on top of other allegations.
The Ninth and Fourth Circuit Court of Appeals have ruled that such an interpretation of the CFAA casts too wide a net. With the circuit courts divided over whether a broad definition of "unauthorized" is constitutional, it may fall on the Supreme Court to ultimately decide.
Assistant U.S. Attorney Steve Heymann of Massachusetts was the lead prosecutor in Swartz's case. (He was known for winning a 2010 case that landed hacker Albert Gonzalez 20 years in prison.) Heymann offered Swartz a plea bargain of six months in prison but Swartz's defense team rejected the deal, saying a felony and any time behind bars was too harsh a sentence. Swartz's family blamed his death in part on "intimidation and prosecutorial overreach."
As a result of Swartz's suicide, some lawmakers are now calling for a review of the CFAA. On Tuesday, Rep. Zoe Lofgren (D-Calif.) proposed a piece of legislation called "Aaron's Law," which would amend the law to explicitly state that merely violating a site's terms of service cannot fall under the federal CFAA.
Distributed Denial of Service
A Distributed Denial of Service, or DDoS attack, floods a web site's server with traffic from a network of sometimes thousands of individual computers, making it incapable of serving legitimate traffic.
In 2010, the group Anonymous attempted to overload websites for PayPal, Visa and Mastercard after the companies refused to process donations to Wikileaks. Anonymous posted their "Low Orbit Ion Canon" software online, allowing roughly 6,000 people who downloaded the program to pummel the sites with traffic.
A DDoS attack can be charged as a crime under the CFAA, as it "causes damage" and can violate a web site's terms of service. The owner of the site could also file a civil suit citing the CFAA, if they can prove a temporary server overload resulted in monetary losses.
Sixteen alleged members of Anonymous were arrested for their role in the PayPal DDoS, and could face more than 10 years in prison and $250,000 in fines. They were charged with conspiracy and "intentional damage to a protected computer" under the CFAA and the case is ongoing.
Some web activists have pressed for DDoS to be legalized as a form of protest, claiming that disrupting web traffic by occupying a server is the same as clogging streets when staging a sit-in. A petitionstarted on the White House's "We the People" site a few days before Swartz's death has garnered more than 5,000 signatures.
"Distributed denial-of-service (DDoS) is not any form of hacking in any way," the petition reads. "It is the equivalent of repeatedly hitting the refresh button on a webpage. It is, in that way, no different than any ‘occupy' protest."
Doxing
Doxing involves finding and publishing a target's personal or corporate information.
In 2011, Anonymous and hacker group Lulzsec breached the Stratfor Global Intelligence Service database and published the passwords, addresses and credit card information of the firm's high-profile clients. The group claimed they planned to use the credit cards to donate $1 million to charity.
Anonymous also recently doxed members of the Westboro Baptist Church after several tweeted their plans to picket funerals for Sandy Hook victims. Hackers were able to access Church members' twitter accounts and publish their personal information, including phone numbers, emails and hotel reservation details.
Jeremy Hammond could face life in prison for allegedly leading the Stratfor hack and a separate attack on the Arizona Department of Safety website. Former Anonymous spokesman Barrett Brown was also indicted for computer fraud in the Stratfor dox, not for hacking into the system, but for linking to the hacked information in a chat room.
The charges for doxing depend on how the information was accessed, and the nature of published information. Simply publishing publicly available information, such as phone numbers found in a Google search, would probably not be charged under the CFAA. But hacking into private computers, or even spreading the information from a hack, could lead to charges under the CFAA.
Note: A section on "Website Defacement" has been removed pending further reporting.
Clarification: This post originally suggested Swartz participated in hacking such as DDoS or Doxing, when we meant to describe general tactics. We have updated this post accordingly.

Sunday, January 13, 2013

Everything We Know So Far About Drone Strikes

by Cora Currier, ProPublica

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 2008, 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.

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.

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.
Just last week, a federal judge ruled that the government did not have to release a secret legal memo making the 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 of kill every last terrorist who claims an affiliation with al Qaeda."
The State Department's legal counsel, Jeh Johnson, who just stepped down as general counsel for the Pentagon, gave a speech last month 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 Frontiers 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.

Monday, January 7, 2013

Five Federal Policies on Guns You've Never Heard Of

by Suevon Lee ProPublica 

U.S. gun policy is set by both state and federal law. We previously published an explainer on the ways states have eased gun restrictions. But federal policy, too, has become more gun friendly in recent years — and we're not just talking about the 2008 Supreme Court ruling that struck down the handgun ban in Washington, D.C., and held that people have a right to keep guns in their homes.
Here, we outline five federal policies relating to guns you may not have known about:

1. A federal firearms trace database is off-limits to the public.
How often do federally licensed gun dealers sell guns that are then used in crimes? It's hard to know, because for nearly a decade such gun trace data has been hidden from the public. Even local law enforcement had been, until recently, barred from accessing the database for anything but narrow investigations.
Under the Gun Control Act of 1968, licensed dealers are required to record certain information about a buyer and the gun's serial number at the point of sale. These records go into a database maintained by The Bureau of Alcohol, Tobacco, Firearms and Explosives. A tool to catch criminals, the database in the early 2000s became a political flashpoint, as the Washington Post details. Outside research tying seized guns to a small handful of dealers spurred the federal government to impose tougher sanctions and inspections on gun retailers and manufacturers.
But those sanctions sparked a backlash: Since 2003, the Tiahrt Amendments, so named after the former Kansas Republican congressman who introduced the measures, have concealed the database from the public. Prior to 2010, local police could access the database only to investigate an individual crime but not to look for signs of broader criminal activity.
Despite the relaxing of some restrictions, parts of the original Tiahrt Amendment remain in place. The ATF can't require gun dealers to conduct an inventory to account for lost or stolen guns; records of customer background checks must be destroyed within 24 hours if they are clean enough to allow the sale; and trace data can't be used in state civil lawsuits or in an effort to suspend or revoke a gun dealer's license.

2. The military can't impose additional regulations on service members who own guns.
Following the November 2009 shooting at Fort Hood military base in Texas that killed 13 people and wounded more than two dozen others, the Department of Defense proposed guidelines that included, among other things, a new policy around private firearms. (The semiautomatic pistol used by accused gunman Army psychiatrist Maj. Nidal Malik Hasan was purchased at a store off-base.)
Consideration of tighter gun regulations, such as the registering of non-military guns, sparked at least one new piece of federal legislation.
Less than a year after the shooting, U.S. Sen. Jim Inhofe, R-Okla., introduced a bill prohibiting new regulations on Defense Department personnel's private guns. It also prohibited commanders from inquiring into private gun ownership. At the time, Inhofe stated that the measure would "prevent current and potential Second Amendment violations for those serving and employed by the Department of Defense."
There has been a recent revision: In the 2013 National Defense Authorization Act recently passed by Congress, a new provision does allow military commanders to ask about private firearms if there is reason to believe a service member is at high risk of committing suicide.
"It codifies the ability of military commanders to have a conversation with someone they feel is suicidal. This is all about conversation, not confiscation," said John Madigan, senior director of public policy at The American Foundation for Suicide Prevention, which pushed for the measure.

3. You can carry a gun inside a national park or check a gun when riding Amtrak.
In 2009, Congress passed a measure, tucked into a larger credit card reform bill, to allow visitors to national parks and wildlife refuges to carry a loaded firearm. (Previously, the guns had to be locked, unloaded and stowed away). Under the amendment, which took effect February 2010, visitors can carry firearms only in those parks located in states that permit concealed guns in their own state parks. Although the U.S. Department of the Interior had lifted the 25-year ban the year before the law passed, a federal judge had blocked implementation after gun control groups objected.
Also in 2009, Congress voted to allow customers riding Amtrak to check guns and ammunition in their luggage. (Though airlines have a similar policy, the federally subsidized national rail service barred guns in any luggage, checked or carry-on, after the 9/11 terrorist attacks.) In a statement shortly before the measure took effect, its sponsor, Republican Sen. Roger Wicker of Mississippi, said it would provide "hunters, sportsmen, and gun owners with more choices for traveling."

4. The gun industry is shielded from many lawsuits involving criminal misuse of guns.
In 2005, Congress enacted a law that immunizes gun dealers and manufacturers from liability for injuries resulting in the "criminal or unlawful misuse" of a firearm. The law authorized dismissal of any applicable pending lawsuits and prohibited future claims.
During floor debate, the bill's primary sponsor, former Idaho Republican Sen. Larry Craig, said the measure wouldn't provide the gun industry with blanket immunity, just prohibit "one extremely narrow category of lawsuits: lawsuits that attempt to force the gun industry to pay for the crimes of third parties over whom they have no control."
Indeed, the 2005 law provides for certain exceptions, including cases in which a gun dealer or manufacturer is aware the firearm will be used to a commit a crime and the suit is brought by the victim directly harmed. The law also allows suits based on a manufacturing or design defect, but not for lacking certain safety features.
Under the law, it would be much harder to obtain a settlement of the kind that families of the victims in the Washington-area sniper shootings of 2002 received. In 2004, those families won a $2.5 million settlement from the manufacturer of the Bushmaster XM-15 assault rifle used in the shootings and from the licensed Tacoma, Wash., store from where the gun was stolen.
"The law has not stopped gun litigation, but it has created an obstacle for litigation," said Jonathan E. Lowy, director of the Legal Action Project at The Brady Center to Prevent Gun Violence, which filed the lawsuit, alleging that the defendants' negligence allowed the snipers to obtain the firearm. "Today, you would almost certainly face motions to dismiss by the dealer and manufacturer, and there is a significant number of judges who would dismiss the case," he said.

5. Congress has removed federal funding for firearms-related research.
Funding used to be set aside for the Centers for Disease Control and Prevention to research the impact of gun ownership — but that was taken away in the mid-90s.
The New York Times explains that as the CDC became "increasingly assertive about the importance of studying gun-related injuries and deaths as a public health phenomenon," the National Rifle Association assailed its findings as politically skewed and lobbied to defund research.
One study commissioned by the CDC's National Center for Injury Prevention and Control found that the risks of keeping a gun in the home outweigh the benefits: "A gun kept in the home is far more likely to be involved in the death of a family member of the household than it is to be used to kill in self-defense," its authors wrote in 1993.
In 1996, an amendment proposed by then-Arkansas Republican Congressman Jay Dickey removed $2.6 million from the center's budget, the same amount earmarked for firearms research. When funding to CDC was later restored, legislation included the directive that "none of the funds made available for injury prevention and control at the Centers for Disease Control and Prevention may be used to advocate or promote gun control." Critics charge that language had a chilling effect on CDC's support for gun-related research.
The CDC Injury Center today collects data generally on homicides, suicides and injuries in homes, schools and communities. But when it comes to firearms-specific research, "I never heard the money was replaced," said Dr. David Satcher, the former U.S. Surgeon General who served as CDC's director from 1993 to 1998 and now leads The Satcher Health Leadership Institute at Morehouse School of Medicine.
"I don't think this (1993) study was saying the government should take guns away from people. I think it was saying people should know what happens when you have a gun," Satcher told ProPublica. "A major benefit of that kind of research is, it keeps informing and updating people: What do we know about gun violence? What do we know about the benefits of owning a gun? I think those are the kinds of questions we need to ask in public health."

Mass Shootings Do Little to Change State Gun Laws

by Joaquin Sapien ProPublica

Following the mass shooting in Connecticut, the Obama administration and lawmakers around the country have promised to re-examine gun control in America.

ProPublica decided to take a look at what's happened legislatively in states where some of the worst shootings in recent U.S. history have occurred to see what effect, if any, those events had on gun laws.

We found that while legislators in Virginia, Alabama, Arizona, New York, Texas and Colorado sometimes contemplated tightening rules after rampage shootings, few measures gained passage. In fact, several states have made it easier to buy more guns and take them to more places.

Here's a rundown of what's happened in each of those states:
Virginia: After 23-year-old Virginia Tech student Seung Hui Cho killed 32 students and faculty members at the university in April 2007, then-Gov. Tim Kaine assigned a blue-ribbon task force to examine gun policies in the state. The task force made dozens of recommendations that, among other things, suggested that the state intensify background checks for gun purchasers, and ban firearm possession on college campuses. None of the recommendations became law.
The most significant change in Virginia came two weeks after the shooting when Kaine signed an executive order requiring the names of all people involuntarily committed to mental health facilities to be provided to a federal database called the National Instant Criminal Background Check System, or NICS. Licensed gun dealers are supposed to check the database before they sell anyone a gun.
President George W. Bush subsequently signed federal legislation requiring all states to submit their mental health records to NICS, but to gain the support of the NRA, Congress agreed to two concessions. It made changes to the way the government defined who was "mentally defective," excluding people, for example, who had been "fully released or discharged" from mandatory treatment. The law also gave mentally ill people an avenue for restoring their gun rights if they could prove to a court that they had been rehabilitated. After the law passed, the NRA pushed state lawmakers to limit roadblocks for people applying to regain their rights.
Virginia is particularly open to restoring peoples' gun rights. A 2011 New York Times investigation found that the restoration process in the state allowed some people to regain access to guns simply by writing a letter to the state. Others were permitted to carry guns just weeks or months after being hospitalized for psychiatric treatment.
This past year the Virginia state legislature repealed a law that had barred people from buying more than one handgun per month — a law put in place because so many guns purchased in Virginia were later used in crimes committed in states with more restrictions.
The legislature also has made several changes to its gun permitting process. In March, the state eliminated municipalities' ability to require fingerprints as part of a concealed weapon permit application. The state used to require gun owners to undergo training with a certified instructor in order to get permits, but in 2009 it adopted a law allowing people to take an hour-long online test instead. Since Virginia adopted the law, the number of concealed handgun permits the state has issued increased dramatically and many of the permits were issued to people who live in other states where Virginia permits are accepted.
In 2010, Virginia became one of five states to allow permit holders to carry concealed and loaded weapons into bars and restaurants.

Alabama: In Alabama, gun control advocates have won two small legislative victories since March 2009, when 28-year-old sausage plant worker Michael McLendon went on a three-town shooting spree, killing 10 people.
In 2011, the state made it illegal for people to buy weapons for someone else who doesn't have permission to carry one or to provide false information about their identity to a licensed gun dealer. The law was intended to help crack down on gun trafficking. (According to data compiled by non-profit Mayors Against Illegal Guns, the state had the fifth highest rate of crime gun exports in 2009.)
After Florida teen Trayvon Martin was shot and killed by neighborhood watch volunteer George Zimmerman in February 2012, the Alabama state legislature made a slight revision to its version of a law known as the "castle doctrine," which is meant to allow property owners to protect their homes against intruders. Alabama changed its law so that a shooter would only be entitled to civil immunity for shooting a trespasser if the property owner reacted "reasonably."
Arizona: After former U.S. Rep. Gabrielle Giffords, D-Ariz., was shot in the head in a hail of bullets that killed six and wounded 13, a bill was introduced in the state legislature to limit gun magazines to 10 bullets, but the bill failed in the face of pressure from the gun lobby. A similar bill was proposed in Connecticut last year; it didn't pass either.
In March 2012, Arizona Gov. Jan Brewer signed a bill with the opposite effect, forbidding the Arizona Game and Fish Commission from limiting magazine capacity for any gun approved for hunting.
According to rankings assembled by the Law Center to Prevent Gun Violence, Arizona is "49th out of 50 — having enacted some of the weakest gun violence prevention laws in the country."
Arizona doesn't require a license to carry a concealed firearm in public, nor does it limit the number of firearms that someone can buy at once.

New York: After a mass shooting at an immigration services center in Binghamton, N.Y., where 13 people were killed and four were wounded, the state assembly entertained several bills on gun control. None passed. One bill would have given police more control over records related to firearm sales. Another would have banned 50-caliber weapons and allowed people to turn them into the state in exchange for fair market value.
Perhaps the most controversial bill in the package would have required the use of a technology called microstamping on all bullets sold in the state.
Using this technology, a serial number could be stamped on bullet casings so they could be traced back to a particular gun. The gun industry argued that the technology would be too expensive and was still unproven. Some gun manufacturers were so upset by it that they threatened to leave the state. The bill passed the Assembly in June, but the Senate did not vote on it.
In January 2012, the legislature repealed a law that previously required handgun manufacturers and dealers to share information about bullet casings and ballistics with the state. Critics of the law said the database used to maintain the information cost too much and didn't help police.
Texas: There's been no effort to tighten gun control in Texas since Army Maj. Nidal Hasan, 39, killed 13 and wounded 32 at a military processing center at Fort Hood in 2009.
In 2011, legislators passed two bills that gave gun carriers greater freedom to take their weapons to more places. One bill restricted employers from prohibiting guns from vehicles in parking areas and another allowed foster parents to carry handguns while transporting their foster children, as long as they are licensed carriers.

Colorado: Colorado's state legislature has not convened since Aurora graduate student James Eagan Holmes, 24, killed 12 and wounded 58 in a movie theater in July. At the time, Colorado Gov. John Hickenlooper suggested that families of victims needed time to grieve before a discussion on gun control could begin in the state.
After the Connecticut shooting, Hickenlooper said that "the time is right" for the state to consider stronger gun control legislation. He has introduced a measure to strengthen background checks for gun buyers.