New York City and state officials announced settlements Thursday placing 1,823 apartments under rent stabilization, making a small dent in the city’s problem of scofflaw landlords who collect big property tax breaks but fail to cap rents as required by law.
In a Nov. 5 story, ProPublica estimated that there are about 50,000 apartments in buildings where New York City landlords had collected these tax breaks but hadn’t registered them for rent stabilization. Together, the landlords were receiving annual property tax breaks of more than $100 million.
Landlords Fail To List 50,000 NYC Apartments for Rent Limits
Owners are getting $100 million in property tax breaks while violating the law requiring them to officially register, and city and state officials are unable to explain why. Read the story.
Are You Paying Too Much Rent? What You Need to Know About Rent Limits
Tens of thousands of New Yorkers are moving into newer rent-stabilized apartments. Many are paying ‘preferential’ rents that tenant advocates say invite abuse by landlords. Read the FAQ.
Help Us Investigate New York City Rents
Is your rent legal? It might not be. Your landlord might be charging you too much, and we want your help figuring that out.
New York Attorney General Eric Schneiderman — partnering with city and state housing agencies — had announced action in August against owners of 194 buildings.
Failure to comply with rent stabilization leaves tenants exposed to overcharges, harassment or illegal eviction. Landlords are required to register with the state and report rents paid; tenants have a right to their apartment’s rent history so they can see if rents are within city-approved limits.
Schneiderman said that about 1,400 of the 2,400 apartments in the 194 buildings had been brought under rent stabilization.
Eighteen separate settlements with landlords brought another 408 apartments under protection, he said. Under the terms, the landlords will collectively pay $5 million to a low-income housing fund.
Schneiderman also took the step of releasing the names and addresses of 52 of the 194 landlords who he said refused to comply with the law. Previously, his office had declined to identify landlords.
The list showed that most buildings are located in Brooklyn. It included at least one building owned by The Rabsky Group, a prominent Brooklyn developer ProPublica wrote about last month.
In a joint statement released on Thursday, the state’s Division of Housing and Community Renewal, which oversees rent-stabilization laws, said it will now begin taking legal action against “recalcitrant landlords” who have not complied.
The city’s Department of Housing Preservation and Development, which administers the tax break programs, known as 421-a and J51, warned that it “can commence proceedings” to revoke the tax benefits from landlords. The statement did not say whether the agency would proceed to do so.
Such revocations are rare. HPD has only taken away the tax benefit twice in the last three years.
In addition to this reporting, we asked NYC residents to fill out a survey that would help us determine if their building should be rent-stabilized or if their landlord was overcharging them in some way. Nearly 500 people filled it out, sharing stories and asking questions. We have included a few of them in this FAQ on what you need to know about rent limits.
And now we have another way for you to contribute — and all you need is a cell phone.
Through Groundsource — a text-messaging platform, you can take a very short survey that asks a few questions about your rent. Do you have rent issues? Are you worried about getting priced out of your neighborhood? Tell us about them. Or, maybe, everything is fine. It is still possible your landlord is charging you too much. A few questions and a follow up might help figure that out. All of this participation will help us continue reporting on this topic.
So, what to do? It's easy:
1. Text the word "Rent" to 347-695-2538
2. You'll get a few questions via text
3. Answer the questions
And that's it.
Following up: After receiving your survey, a reporter may follow up with you for more information. If you've asked a question and we can answer it, we will respond to you directly.
A note of privacy: Any information you share with ProPublica will not be published without your permission.
When prominent New York developer Jed Walentas asked the city to approve a set of sleek towers on Brooklyn’s industrial waterfront last year, he pitched his company as a player that always abides by the rules.
The project, remaking the old Domino Sugar factory into a 2,300-unit apartment and office complex, would be the biggest ever for his firm, Two Trees Management. As with earlier projects, Two Trees would get millions in tax breaks in return for capping rents and reserving some units for low-income tenants.
Help Us Investigate New York City Rents
Are you worried about getting priced out? Is something peculiar in your lease or with your rent? Let us know by texting 347-695-2538.
Landlords to Pay $5 Million for Dodging Rent Laws
State, city officials target buildings receiving lucrative property tax breaks in return for limiting rents. Read the story.
What You Need to Know About Rent Limits
Tens of thousands of New Yorkers are moving into newer rent-stabilized apartments. Many are paying ‘preferential’ rents that tenant advocates say invite abuse by landlords. Read the story.
“We’ve done everything we always said we were going to do in every one of these projects,” Walentas assured the City Council at a public hearing last year.
Another signature Two Trees project, however, stands as a model of something else: The failure of city and state regulators to effectively police the tax break at the heart of such deals and hold developers to their word.
An investigation by ProPublica into one of Two Trees’ major developments in downtown Brooklyn shows that regulators stood by as the company flouted laws requiring rent stabilization in exchange for a large property tax break it received.
Despite that requirement, the firm promptly told regulators that most of the apartments were exempt from rent stabilization when the complex at 125 Court Street opened in 2005. Then, over the next eight years, Two Trees repeatedly exceeded city limits on rent increases in the 321-unit luxury building, even overcharging the majority of its low-income renters.
Regulators took no action until 2011. Although they eventually informed Two Trees that it was out of compliance, they never moved to revoke the tax benefit.
In fact, they had never approved it in the first place.
In response to questions by ProPublica, city officials confirmed that 125 Court Street has yet to officially qualify for the tax break program, known as 421-a, even though Two Trees has received more than $10 million in tax savings that continue to this day.
ProPublica’s analysis of rent histories, meanwhile, shows that the building’s original tenants were charged at least $368,000 in excess rents. Two Trees confirmed that it had imposed “accidental” overcharges in the building’s early years, but said it later repaid tenants almost $300,000 plus interest.
Together, the overcharges and Two Trees’ lack of final approval show a city that is eager to give out tax breaks but loathe to police them, enabling developers to easily sidestep tenant protections under its single-biggest housing subsidy.
For the first time, the revamped law also would exempt most new apartments built with 421-a subsidies from rent stabilization.
Critics of the reforms have called them a giveaway that will ultimately push up rents, but there’s been little attention paid to the program’s regulatory shortcomings.
The city maintains that it is the state’s job to make sure tenants in 421-a buildings aren’t charged higher rents than the law allows. The state says it’s up to the city to administer and enforce the program. The result: A regulatory dead zone.
Image may be NSFW. Clik here to view.Jed Walentas, the CEO of Two Trees Management, at The New York Observer's 100 Most Powerful People in New York Real Estate event in 2011. (Chance Yeh/Sipa via AP)
“Tenants are the only ones expected to do anything to enforce the law,” said Ellen Davidson, a tenant lawyer with the Legal Aid Society.
ProPublica began investigating 421-a this year after discovering that some landlords getting the tax break had overcharged tenants who didn’t realize their apartments in high-end buildings like 125 Court Street were rent-stabilized.
Subsequently, an analysis of city and state data showed that landlords had failed to register 50,000 apartments for rent stabilization, as required by law, yet continued to receive more than $100 million in 421-a and other tax benefits.
Regulators have recently busted some smaller landlords for ducking rent stabilization. But the history of 125 Court Street raises further questions, including why a landlord that violated rent limits for so long didn’t lose the tax benefits, and whether developers with compliance problems should qualify for new 421-a deals.
Neither Two Trees nor city officials were able to explain why the building still had no final certificate of 421-a eligibility a decade after tenants began moving in.
A spokesman at BerlinRosen, the public relations firm representing Two Trees, called it an “administrative oversight” that is being corrected.
Officials at the city’s Department of Housing Preservation and Development (HPD), which decides eligibility for 421-a, said they are “confident that the building will complete the necessary paperwork or the city will begin the revocation process.”
This account relies on rent records, leases and hundreds of pages of documents Two Trees has produced in court, as well as materials longtime tenants obtained via public records requests.
ProPublica also interviewed tenants, housing advocates and attorneys who are expert in rent-stabilization law. All five lawyers who reviewed leases and other documents agreed that Two Trees had violated the law. Based on the records, three described the city’s enforcement as “toothless.”
“Who’s watching the store?” said Phil DePaolo, a housing activist who opposed the Domino Sugar deal. “Nobody.”
Nine years after her husband died from cancer, Nancy Sher decided it was time to move. Sher, mother to twin girls, wanted something smaller than the family’s old townhouse in Brooklyn’s Prospect-Lefferts Gardens neighborhood.
A brand new building was coming to market on the edge of downtown Brooklyn not far away. “My children picked it,” Sher said of 125 Court Street. “We drove by it every time we drove to school.”
The 11-story complex had stores at the street level and housed a YMCA with membership deals for residents. One-fifth of the units in 125 Court Street were reserved for low-income tenants. The rest could be leased at market rates, but all of the building’s apartments were supposed to be subject to limits on rent increases set each year by the city’s Rent Guidelines Board.
By the time Sher moved, in May 2005, Two Trees was established as one of the city’s most successful developers. Under Jed Walentas’ father, David, the company was best known for transforming blocks of factories and warehouses near the Manhattan and Brooklyn bridges into the upscale Dumbo neighborhood.
Tax subsidies similar to 421-a helped the company redevelop those properties. As Two Trees planned 125 Court Street, David and Jed Walentas applied for more tax benefits that explicitly obligated their firm to abide by rent-stabilization rules.
Image may be NSFW. Clik here to view.The Two Trees complex at 125 Court Street has received more than $10 million in city tax breaks that is has not yet qualified to receive. (Bryan Anselm for ProPublica)
After buying the land from the city for $16.5 million in 2003, David Walentas signed papers with the city’s Housing Development Corporation agreeing that “all units in the Project are subject to Rent Stabilization” as a result of its expected 421-a tax break.
The agency sold $92.7 million in tax-exempt bonds to fund a loan to Two Trees in December 2003, enough to cover more than 90 percent of the project’s costs. The bonds’ tax-exempt status made the loan more affordable.
A year later, in December 2004, Two Trees applied for 421-a benefits. In the two-stage process, developers get up to three years of tax breaks during construction. They then have to apply again to get final, post-construction benefits for up to 25 years.
Jed Walentas signed the first application, including an affidavit stating in capital letters that if owners failed to comply with 421-a rules, the city “SHALL REVOKE THE CERTIFICATION OF ELIGIBILITY AND TERMINATE THE TAX EXEMPTION.”
As part of the process, HPD uses a formula to calculate a maximum monthly rent that can be charged for the building — in this case, $1.15 million. The formula, written into the law, affords developers wide leeway to propose initial rents that are far in excess of what the market will bear.
In March of 2005, HPD approved a rent schedule listing $6,698 per month as the maximum initial rent for Sher’s two-bedroom unit. When Sher leased the apartment two months later, however, Two Trees listed a “legal” rent of $9,175, along with a $3,540 “preferential” rent — the amount she would actually pay.
A “temporary rent concession” rider in her lease stipulated that Two Trees reserved the right to someday withdraw the discount and charge the maximum.
Sher didn’t pay close attention at the time. But city officials and housing lawyers have said such leases are improper: Under rent stabilization rules, the amount actually “charged and paid” becomes the legal rent for an original tenant.
That figure, $3,540 in Sher’s case, sets the starting rent for future increases. “They had no legal basis for reporting the ‘legal’ rent as $9,175,” said Nicholas Moccia, a Staten Island lawyer who represents tenants and landlords and who reviewed Sher’s lease for ProPublica. “That’s a number they pulled out of thin air.”
Landlords are required by law to register all their units with the state Department of Housing and Community Renewal (DHCR) each year, reporting how much rent is paid and whether they are rent stabilized. Yet when Two Trees first filed for 125 Court Street, it listed Sher’s and 255 other units as “exempt,” records show.
As their leases came up for renewal, Sher and other tenants began seeing steep increases. Two Trees imposed a 10 percent increase in a new two-year lease for Sher’s apartment in 2007. The most then allowed by the city’s Rent Guidelines Board was 6.75 percent over two years.
When the lease for Yolande Nicholson, another original tenant, came up for renewal the same year, Two Trees imposed a 22 percent increase, or more than triple the 6.75 percent limit. Her rent went up by $643 a month.
Nicholson, a securities lawyer, hadn’t looked closely at her lease. “I did not know in any way that it was rent-stabilized,” she said.
Image may be NSFW. Clik here to view.Tenant Yolande Nicholson was evicted from 125 Court Street last year. Two Trees Management once raised her rent by 22 percent, triple what was allowed under rent stabilization. (Bryan Anselm for ProPublica)
Two years later, Two Trees raised her rent another 20 percent — more than double the city limit of 8 percent at the time. Nicholson tried to negotiate for something less, then refused to sign a lease. She said she wrote to David Walentas asking for a rent reduction but never received a response.
Sher and Nicholson were in high-end apartments. But records show that Two Trees also overcharged tenants in most of the building’s 64 low-income units. These units have reduced rents and are for people earning less than 50 percent of the median income for New York City, or $43,150 for a family of four.
Katrece Small won a lottery for one of these units and leased a studio for $398 per month beginning in 2005. Records show that Two Trees raised her rent by 8.2 percent and 10.7 percent in 2007 and 2009, respectively, when the limits were 6.75 percent and 8 percent for two-year leases.
From 2005 through 2013, records show, Small was charged more than $1,000 in rent she shouldn’t have owed. Like others, Small, a single mom who is out of work, said she didn’t really pay close attention to the terms of her lease.
“I didn’t know what it meant,” Small said. “It’s still not even clear. I don’t even know if I’m paying the legal amount of rent.”
In all, ProPublica estimated that at least 43 of the 64 original low-income tenants at 125 Court Street were overcharged a total of $80,000. Additionally, 47 original tenants in market-rate units were charged about $288,000 more than what city limits allowed.
ProPublica calculated the figures by comparing changes in annual rents for the building’s initial tenants against applicable Rent Guidelines Board caps. In nearly 200 lease renewals, Two Trees charged more than was allowed by the board.
Two Trees said it discovered overcharges in a 2013 audit. A spokesman said in a statement that the firm ultimately issued rent refunds or credits totaling $299,148, plus $90,805 in interest, to 80 tenants covering all overcharges since the building opened.
Sher provided a document confirming that she was among those reimbursed, but Nicholson said she was never compensated. Two Trees said it had credited both Small and Nicholson.
Nicholson said she became convinced something was awry with rents in 2010. She eventually spent a full day scrutinizing rent-stabilization statutes, which proved daunting even compared to the labyrinthine securities laws she dealt with in finance.
She shared her suspicions with Sher; now the two are among a handful of tenants involved in a tangle of lawsuits with Two Trees over rent increases and other complaints, including mold, water damage and dislocated floorboards.
Nicholson refused to pay rent increases she felt were excessive and was evicted last year. Sher went on a rent strike; she narrowly avoided eviction last month after a judge required her to set aside $95,000 in back rent to keep her legal case alive. The judge did allow her a discount for mold.
As overcharges mounted at 125 Court Street, regulators were slow to check up on the building.
Six years after it opened, the city asked why Two Trees claimed the apartments were exempt from rent stabilization. “All units must be registered as rent-stabilized,” HPD said in a June 14, 2011 notice to the company’s lawyer. “256 units are currently listed as ‘exempt,’ ” it said. “This is not allowed.”
HPD also said the rents reported by Two Trees were too high and urged it to get into compliance — without listing any consequences if the firm didn’t.
Almost a full year later, on June 4, 2012, HPD wrote again with the same complaint: “Please revise your DHCR registration so the rents are within HPD guidelines & all units are rent stabilized.”
This time, the agency warned that unless Two Trees fixed the problems, it would stop processing its final application for the 421-a tax break. Two Trees by that point had already benefited from five years of a 25-year exemption.
Sher began her rent strike that year. Soon after, Two Trees sent a renewal lease raising her rent to $5,000 per month — a 35 percent increase when the city allowed only 7.25.
Image may be NSFW. Clik here to view.Image may be NSFW. Clik here to view.125 Court Street tenant Nancy Sher has complained about water damage that has caused her floorboards to buckle. (Bryan Anselm for ProPublica)
She and nine other tenants then sued Two Trees in April 2012. One of those tenants was Jeff Goodman. In 2013, Two Trees boosted the rent on his one-bedroom by 47 percent to what it claimed was a legal maximum of $6,599.40.
“I remember that the first words that came out of my mouth were, ‘This must be in retaliation,’ ” Goodman said.
Asked about retaliation, Two Trees said it believed all its rent increases were legal at the time. In September 2013, however, it filed corrected rents with the state, reducing some that were too high, including Sher’s.
The city’s HPD said it did not investigate rents at 125 Court Street or other 421-a buildings because it’s the state’s job to enforce rent-stabilization laws.
DHCR, the state regulator, said it has received four complaints of overcharges at the building. Records obtained by ProPublica show that in one instance — over Two Trees’ protests — the agency awarded triple damages to an elderly low-income tenant who had complained.
It is unclear whether the complaints triggered a broader review of rents at 125 Court Street; DHCR would not say. In an email, the agency described its role as that of a “regulatory agency — not an enforcement entity.” The 421-a program, it said, “is administered and enforced” by the city’s HPD.
By the time Two Trees corrected its rents, the initial construction-period tax exemption for 125 Court Street had long expired. When ProPublica asked for the final eligibility certificate, HPD officials divulged that they never issued one.
Blaine Schwadel, a lawyer at Rosenberg & Estis who frequently represents landlords on 421-a issues, said that obtaining a final certificate is not simply a formality. “That is when HPD has its chance to review things” before greenlighting final tax benefits, he said.
This year, 125 Court Street’s property tax break amounts to $1.4 million, a nearly 90 percent reduction. It may not be the only 421-a building that is benefiting without final approval.
Officials at HPD said that under a “flawed system,” the city has long allowed construction-period tax benefits to automatically continue even if final eligibility isn’t confirmed. That will change under the new 421-a law, which says projects can’t start getting the tax break until construction is over and they have qualified.
Ed King, a lawyer representing Nicholson and Goodman, called state and city oversight of the 421-a program a “colossal failure.”
By spring 2014, Sher and Nicholson were busy writing to de Blasio, Attorney General Eric Schneiderman and senior officials at city and state housing agencies, asking them to investigate Two Trees. Only Schneiderman’s office responded, though merely by acknowledging receipt of Sher’s letter.
Jed Walentas, meanwhile, was busy making his final pitch to city officials for the Domino Sugar redevelopment, including an integral 421-a tax break.
Sher and Walentas crossed paths at the marathon City Council hearing on April Fool’s Day 2014, at which Walentas said Two Trees had kept all its promises.
“I can tell you that without 421-a, there won’t be any affordable housing built here,” Walentas said as council members peppered him with questions about the number of low-income units he planned at the Domino site.
Waiting for their turn to testify near the end of the six-hour meeting were Sher, Nicholson, Goodman and Small.
“I’m here today to request that the City Council suspend any further concessions or taxpayer subsidies to Two Trees because they have proven unworthy of the public trust,” said Sher.
The deal allowed de Blasio to claim a win because Two Trees agreed to include 40 more lower-income units than the 660 originally planned for the complex.
Two Trees vs. Two Tenants
With his Domino Sugar development on the line, Two Trees CEO Jed Walentas faced off with tenants at a hearing last year.
‘We’ve lived up to every single commitment that we’ve made’
Jed Walentas, CEO, Two Trees Management
‘We just don’t feel they have earned the public trust’
Nancy Sher, tenant at 125 Court Street in Brooklyn
‘They violate and mock the rent-stabilization laws’
Jeff Goodman, tenant at 125 Court Street in Brooklyn
Achieving the goals in de Blasio’s housing plan — which include building 80,000 new lower-income units over a decade — will require cutting many similar 421-a deals. The legislature’s expansion of the program, expected to be finalized in January, contains many provisions proposed directly by the mayor’s office.
Under the revised program, developers could collect 421-a benefits for up to 35 years instead of the current 25, but new 421-a buildings would have to include more lower-income apartments than are now required, up to 30 percent. Income limits also would be lifted, opening these rent-stabilized units to wealthier tenants.
Perhaps the biggest change is that new units renting for more than $2,700 a month would no longer have to be rent-stabilized — freeing 421-a landlords from Rent Guidelines Board limits for the first time since the program began in 1971.
That shift effectively sets a floor for market-rate apartments, tenant advocates say, and undermines a major court victory tenants won in 2009. In the case, Roberts v. Tishman Speyer, judges ruled that apartments getting similar tax breaks can’t be removed from rent stabilization because the rent gets too high.
With rents rapidly rising above $2,700 in many neighborhoods, the new law “categorizes thousands of middle-class tenants as undeserving of rent stabilization,” said Seth Miller, a tenant lawyer with Collins, Dobkin & Miller in Manhattan.
“Why should developers get to charge any rent they want for most of the apartments the taxpayers pay for?” he said.
Buildings that are already getting 421-a benefits, like 125 Court Street, would remain rent-stabilized. The new law doesn’t address whether a developer’s past compliance should be evaluated when awarding future benefits.
“If enforcement were automatic and prompt, you wouldn’t need to blacklist developers from getting future benefits,” Miller said.
De Blasio spokesman Wiley Norvell said problems with the 421-a program are “a decades-old issue” and that reforms the mayor proposed, including changes in the application process, would “ensure owners meet requirements before any benefits are issued.”
Real estate interests have made clear they are fans of the mayor’s plan.
Both developers and labor unions with a stake in construction jobs have given generously to Campaign for One New York, a nonprofit formed to advocate for de Blasio’s political priorities, including affordable housing.
In April, a $100,000 gift came in to the mayor’s fund, which is also represented by BerlinRosen, the Two Trees PR firm.
The source? A Two Trees subsidiary named for a Domino Sugar address: 316 Kent Ave.
This story resulted from a reader tip. To share your stories about rents in New York City, fill out our confidential survey.
According to articles this week across the Internet, there has been an average of one mass shooting every day in the United States: 355 so far this year. It’s a jarring statistic, and one that has gone viral in the wake of this week’s massacre in San Bernardino, California.
But there are two problems with the number: It doesn’t actually provide a clear estimate of how often the country has seen shooting rampages like the one in San Bernardino. And it obscures the broader reality of gun violence in America.
Counting “mass shootings” is notoriouslycomplicated and contested, since there is no standard definition of what they are. Is it best to count shootings that injure or kill a certain number of people? Or should the definition focus more narrowly on attacks in which the motivation of the shooter “appears to be indiscriminate killing”?
How the Gun Control Debate Ignores Black Lives
By failing to talk about the majority of gun murder victims — black men — politicians and advocates are missing the chance to save lives. Read the story.
Mother Jones, which has been tracking mass shootings since 2012, has counted just four mass shootings this year, and a total of 73 since 1982, as Mother Jones editor Mark Follman has noted in The New York Times.
In 2014, the FBI released its own count of “active shooter” incidents, focusing on events where law enforcement and citizens may have the chance to intervene and change the outcome of the ongoing shooting. It tallied a total of 160 of these events from 2000 to 2013–including high-profile shootings at Virginia Tech, Fort Hood, and Sandy Hook Elementary School– with an average of 11 per year.
The “355 mass shootings this year” that has been rocketing around the Internet comes from a crowdsourced Reddit initiative that gathers media reports of shootings in which four or more people were shot.
The Reddit count includes many incidents that Mother Jones, the FBI, and others leave out: for instance, a home robbery, a drive-by shooting, and a gang fight.
The Reddit project’s organizers suggest this broader approach does a better job of capturing the burden of gun violence–including the suffering and costs of treating people who are shot and survive.
“The most obscene incidents of gun violence usually do not make the mainstream news at all,” the project’s introduction says, citing a nightclub shooting in Tennessee in which 18 people were shot and only one person killed. “We believe the media does a disservice to mass shooting victims by virtually ignoring them unless large numbers are killed.”
Yet bundling together all incidents in which four people or more people are shot doesn’t capture the bigger picture.
As ProPublica detailed last week, gun murder in America is largely a story of race and geography. Half of all gun murder victims are black men. The gun murder rate for black Americans is dramatically higher than it is for white Americans. And the burden of violence tends to be concentrated in certain neighborhoods of certain cities.
Black Americans Are Murdered by Guns at a Far Higher Rate Than All Other Races
Firearm homicide rates by race, 1993–2010 (Rate per 100,000 people)
White
Black
American Indian/Alaska Native
Asian/Pacific Islander
Source: Centers for Disease Control and Prevention, National Center for Injury Prevention and Control, Web-based Injury Statistics Query and Reporting System (WISQARS), 1993–2010. Via the Bureau of Justice Statistics.
Reddit’s Mass Shooting Tracker does not include any breakdown by race. In response to questions about the group’s numbers, one project organizer, GhostofAlyeska, wrote, “Our intent is not to analyze the causes or cures for gun violence, but simply to expose the available data. We're volunteers working from a reddit community, nothing more.”
The Reddit project cites 462 people killed under its broad definition of mass shootings. The number of gun homicides of black men killed in 2013, according to the Centers for Disease Control and Prevention: 5,798.
Baltimore alone has seen a total of 316 total homicides so far this year–the vast majority of them shooting deaths of black victims, according to the Baltimore Sun’s homicide map. The city’s homicide rate is now at a record high. The Reddit tracker captures eight of those deaths.
San Bernardino has two entries in this year’s Mass Shooting Tracker: yesterday’s attack, and a nightclub shooting reportedly linked to gang violence. The area has long struggled with poverty, gangs, and homicide. “My son was shot to death with an AK–47. My nephew was murdered and his body was burned and buried,” San Bernardino resident Marisa Hernandez told Vice News on Wednesday. "This type of mass shootings happens everyday here to our kids and nobody stops it, nobody does anything.”
In 2012, there were 90 people killed in mass shootings and 6,000 black men killed with guns, yet the gun control debate focuses on the former. There are gun control strategies that work by looking at the primary victims of gun violence – why aren't we using them?
A government program created to deal with worker shortages is being exploited in a big way by many businesses in the US. This Buzzfeed investigation reveals that several employers are going to "extraordinary lengths" to push Americans out of jobs so they can bring in foreign workers who have fewer protections.
America's deadliest police force isn't in a major metro like New York City, Chicago or Los Angeles – it's in Kern County, California where police kill more people per capita than anywhere in the nation. The first two parts of this Guardian series examine how officers "became the country's most lethal," and how their tactics have killed people.
Low-skilled workers, who were once the Deep South's weakness, are driving foreign companies to the region. This is an in-depth look at the effect one company had on a struggling city in Alabama.
Rape victims around the world are resorting to "grisly and unsafe" abortions due to a federal law. Highline takes a look at the Helms amendment and the steps to get rid of it.
After 9/11, the Drug Enforcement Administration reframed its mission, warning the country that terrorists had gotten into the illegal drug trade to finance their activities. Congress passed a law in 2006 that gave the D.E.A. the authority to pursue narco-terrorists anywhere in the world, even when none of their activities occurred on American soil. Neither the D.E.A. nor the Justice Department would provide a complete list of the people that have been prosecuted under the statute. But in May 2014, the D.E.A. issued a report on its narco-terrorism efforts that described some 37 cases. A review of those cases reveals that when they were presented in court, the only links between terrorism and drug trafficking that were entered into evidence was provided by the D.E.A., using agents or informants who were paid hundreds of thousands of dollars to lure the targets into staged narco-terrorism conspiracies. The fact that so many of the D.E.A.’s cases rely on sting operations raises questions about whether the links between drugs and terrorism exist at all.
In December 2009, Harouna Touré and Idriss Abdelrahman, smugglers from northern Mali, walked through the doors of the Golden Tulip, a hotel in Accra, Ghana. They were there to meet with two men who had offered them an opportunity to make millions of dollars, transporting cocaine across the Sahara. Touré wore a dashiki, and Abdelrahman had on tattered clothes and a turban that hid much of his face. They tipped the guards at the entrance and then greeted Mohamed, a Lebanese radical, in the lobby. Mohamed took them up to a hotel room to see David, a drug trafficker and a member of the Revolutionary Armed Forces of Colombia, or FARC. “Hola, Colombiano,” Touré said, as he entered the room. Abdelrahman tried to call David “007” in Spanish, but said “477” instead. David, who was dressed in a short-sleeved pullover and Bermuda shorts, laughed and offered his guests bottles of water.
Touré and Abdelrahman came from Gao, a parched and remote city in northern Mali which has long been used as a base for smuggling of all kinds, from immigrants to cigarettes. In recent years, the surrounding region has also been the scene of conflict between violent bands of nomadic insurgents, including members of al-Qaida in the Islamic Maghreb (AQIM). During months of meetings and phone calls, David and Mohamed had told Touré that the FARC had some 30,000 fighters at war with the United States, and that it wanted to work with al-Qaida, because the groups shared the same enemy. “They are our brothers,” Mohamed said. “We have the same cause.” Touré had explained that he had connections to the organization: he ran a transport company, and, in return for safe passage for his trucks, he provided al-Qaida with food and fuel.
Still, David remained skeptical. He needed assurances that Touré’s organization was up to the task. The FARC had a lot of money riding on the deal and was willing to pay Touré and Abdelrahman as much as $3,000 per kilo, beginning with a 50-kilo test run to Melilla, a Spanish city on the North African mainland. Loads ten times that size would follow, David said, if the first trip went well.
“If you’re done, I’m going to speak,” Touré said. He told David and Mohamed that he was tired of all the “blah, blah, blah.” He had operatives along the smuggling route, which stretched from Ghana to Morocco. Abdelrahman, whom Touré had introduced as the leader of a Malian militia, said that he had hired a driver with links to al-Qaida. They had also bribed a Malian military official, who would help them cross the border without inspection.
David was reassured. “I want us to keep working together, because we’re not doing this for the money — we’re doing this for our people,” he said.
Two days later, Touré and Abdelrahman went back to the Golden Tulip to collect their initial payment. Oumar Issa, a friend from Gao who was also involved in the plan, waited at another hotel to receive his portion. Instead, the smugglers were met by Ghanaian police officers. David and Mohamed, it turned out, were not drug traffickers but undercover informants for the United States Drug Enforcement Administration. Within days, Touré, Abdelrahman, and Issa were turned over to the DEA, put on a private jet, and flown to New York, where they were arraigned in a federal courthouse. They were charged under a little-known provision of the Patriot Act, passed in 2006, which established a new crime, known as narco-terrorism, committed by violent offenders who had one hand in terrorism and the other in the drug trade.
In announcing the charges, Preet Bharara, the U.S. Attorney for the Southern District of New York, said, “As terrorists diversify into drugs, they provide us more opportunities to incapacitate them and cut off funding for future acts of terror.” The case marked the first time that the narco-terrorism provision had been used against al-Qaida. The suspects appeared to be precisely the kind of hybrid whom the law, which does not require that any of the targeted activities take place in the U.S., had been written to catch. Michele Leonhart, the DEA administrator at the time, said, “Today’s arrests are further proof of the direct link between dangerous terrorist organizations, including al-Qaida, and international drug trafficking that fuels their activities.”
Idriss Abdelrahman, seated on the right, lost both wives after returning to Mali. One left him for another man while he was in prison in the United States. The other died shortly after his return. “She wanted to see me one more time,” he said. “Then she died.” (Jane Hahn for ProPublica)
As the Malians’ case proceeded, however, its flaws became apparent. The defendants emerged as more hapless than hardened, childhood friends who believed that the DEA’s informants were going to make them rich. “They were lying to us. And we were lying to them,” Touré told me from prison. Judge Barbara Jones, who oversaw the final phases of the case, said, “There was no actual involvement by the defendants or the undercovers … in the activities of either al-Qaida or the FARC.” Another judge saw as many problems with the statute as with the merits of the case. “Congress has passed a law that attempts to bind the world,” he said to me.
The investigation continues to be cited by the DEA as an example of its national-security achievements. Since the narco-terrorism provision was passed, the DEA has pursued dozens of cases that fit the broad description of crimes under the statute. The agency has claimed victories against al-Qaida, Hezbollah, the Taliban, and the FARC and established the figure of the narco-terrorist as a preeminent threat to the United States.
With each purported success, the DEA has lobbied Congress to increase its funding. In 2012, Michael Braun, who had served as the DEA’s chief of operations, testified before Congress about the link between terrorists and drug traffickers: “Based on over 37 years in the law-enforcement and security sectors, you can mark my word that they are most assuredly talking business and sharing lessons learned.”
That may well be true. In a number of regions, most notably Colombia and Afghanistan, there is convincing evidence that terrorists have worked with drug traffickers. But a close examination of the cases that the DEA has pursued reveals a disturbing number that resemble that of the Malians. When these cases were prosecuted, the only links between drug trafficking and terrorism entered into evidence were provided by the DEA, using agents or informants who were paid hundreds of thousands of dollars to lure the targets into staged narco-terrorism conspiracies.
The DEA strongly defends the effectiveness of such sting operations, claiming that they are a useful way to identify criminals who pose a threat to the United States before they act. Lou Milione, a senior official at the agency, told me, “One of the things the DEA is kind of in the business of is almost all of our investigations are proactive.” But Russell Hanks, a former senior American diplomat, who got a firsthand look at some of the DEA’s narco-terrorism targets during the time he served in West Africa, told me, “The DEA provided everything these men needed to commit a crime, then said, ‘Wow, look what they did.’” He added, “This wasn’t terrorism — this was the manipulation of weak-minded people, in weak countries, in order to pad arrest records.”
On Sept. 11, 2001, when American Airlines Flight 77 crashed into the Pentagon, DEA agents were among the first to respond, racing from their headquarters, less than half a mile away. A former special agent named Edward Follis, in his memoir, “The Dark Art,” recalls how he and dozens of his colleagues “rushed over … to pull out bodies, but there were no bodies to pull out.” The agency had outposts in more than 60 countries around the world, the most of any federal law-enforcement agency. And it had some 5,000 informants and confidential sources. Michael Vigil, who was the DEA’s head of international operations at the time, told me, “We called in every source we could find, looking for information about what had happened, who was responsible, and whether there were plans for an imminent attack.” He added, “Since the end of the Cold War, we had seen signs that terrorist groups had started relying on drug trafficking for funding. After 9/11, we were sure that trend was going to spread.”
Melinda Beck, special to ProPublica
But other intelligence agencies saw the DEA’s sources as drug traffickers — and drug traffickers didn’t know anything about terrorism. A former senior money-laundering investigator at the Justice Department told me that there wasn’t any substantive proof to support the DEA’s assertions.
“What is going on after 9/11 is that a lot of resources move out of drug enforcement and into terrorism,” he said. “The DEA doesn’t want to be the stepchild that is last in line.” Narco-terrorism, the former investigator said, became an “expedient way for the agency to justify its existence.”
The White House proved more receptive to the DEA’s claims. Juan Zarate, a former deputy national-security adviser, in his book, “Treasury’s War,” says that President George W. Bush wanted “all elements of national power” to contribute to the effort to “prevent another attack from hitting our shores.” A few months after 9/11, at a gathering of community anti- addiction organizations, Bush said, “It’s so important for Americans to know that the traffic in drugs finances the work of terror. If you quit drugs, you join the fight against terror in America.” In February 2002, the Office of National Drug Control Policy turned Bush’s message into a series of public service announcements that were aired during the Super Bowl. Departing from the portrayal of illegal narcotics as dangerous to those who use them — “This is your brain on drugs” — the ads instead warned that getting high helped terrorists “torture someone’s dad” or “murder a family.”
In the next seven years, the DEA’s funding for international activities increased by 75 percent. Until then, the agency’s greatest foreign involvement had been in Mexico and in the Andean region of South America, the world’s largest producer of cocaine and home to violent Marxist guerrilla groups, including the FARC, in Colombia, and the Shining Path, in Peru. Both groups began, in the 1960s and early ‘70s, as peasant rebellions; before long, they started taxing coca growers and smugglers to finance their expansion. The DEA saw the organizations as examples of how criminal motivations can overlap with, and even advance, ideological ones.
Months after the 9/11 terrorist attacks, the Bush administration reframed the drug war to make it a part of the global war on terror. It spent some $4 million to produce these public service announcements that aired during the 2002 Super Bowl.
Now the agency was focused on Afghanistan, which had been one of the largest opium producers in the world until 2000, when the Taliban declared poppy cultivation un-Islamic and banned it. Almost as soon as the Taliban were forced from power, the country’s farmers began replanting their poppy fields; the DEA warned that the new crops could become a source of revenue to finance attacks by al-Qaida. “DEA has received multi-source information that bin Laden has been involved in the financing and facilitation of heroin-trafficking activities,” Asa Hutchinson, the DEA administrator, said during a hearing on Capitol Hill in March 2002. Hutchinson cited insurgency groups in drug-producing countries around the world, including the FARC, the Shining Path, and the Kurdistan Workers Party, in Turkey, which had historically been a significant narcotics transshipment point. And Hutchinson mentioned evidence collected by the DEA that the tri-border area of Paraguay, Brazil, and Argentina — home to a large and thriving Arab business community — had become a source of financing for Hamas and Hezbollah.
With support from Congress, the DEA set up the Counter-Narco-Terrorism Operations Center, a clearinghouse for any terrorism-related intelligence that its agents picked up around the world. The agency reopened its office in Kabul, which had been closed since the Soviet invasion, in 1979. And it brought together law-enforcement officials from 19 countries in Asia and Europe to participate in an intelligence-sharing project known as Operation Containment, which was aimed at cutting off the flow of Afghan heroin and opium.
By 2004, al-Qaida had largely fled Afghanistan, and the DEA turned its attention to the Taliban, which agents believed would follow the same guerrilla-to-drugs trajectory as the FARC. The DEA cobbled together informant networks and undercover operations aimed at traffickers linked to the insurgents. The agency had never played that role in a war zone, and it required support from the military, which wasn’t forthcoming. Edward Follis, the former DEA agent, told me that most American combat commanders showed the DEA a “blatant and willful disregard.” He said that the Pentagon “couldn’t get beyond the idea of capturing or killing enemy combatants.”
Later that year, the DEA took its case to John Mackey, a Republican investigative counsel for the House International Relations Committee. Mackey, a former FBI agent, handled counter-narcotics for the committee’s chairman, Henry Hyde, a prominent Republican from Illinois. Current and former congressional staffers recall that Hyde didn’t have a deep interest in anti-drug matters, allowing Mackey to take the lead. “You know how Congress works,” one former staffer said. “There are all these unknown and unelected people who wield enormous influence over obscure topics. Mackey was one of them.”
Under Mackey’s direction, Republican legislators pressured the Pentagon to support the DEA’s operations in Afghanistan. Follis said that the DEA received tens of millions of dollars in additional funding, allowing it to increase the number of agents in the country from two to more than 40, and to develop its own special-forces units, known as FAST teams, which carried out raids on opium bazaars and heroin labs. The agency also identified a high-value Afghan target, Haji Bashir Noorzai, an opium trafficker with close ties to the Taliban’s leader, Mullah Omar. In 2004, President Bush put Noorzai on a list of the world’s most wanted drug kingpins. But, because most of Noorzai’s opium and heroin exports went to Eastern Europe and not to the U.S., it was difficult for the DEA to go after him. Mackey made numerous trips with the DEA to Afghanistan, and warned Congress that people like Noorzai “are going to fall through the cracks unless we broaden our thinking about them.”
Melinda Beck, special to ProPublica
In early 2005, Mackey helped to draft a statute that would give the DEA the authority to chase drug traffickers anywhere in the world as long as the trafficking was connected to terrorism. When Hyde introduced the legislation, he made a point of drawing his colleagues’ attention to its reach: “This bill makes clear that, even without direct U.S. nexus, if these drugs help support or sustain a foreign terrorist organization, the producers and traffickers can, and should, be prosecuted for material support of terrorism, whether or not the illicit narcotics are ever intended for, or enter, the United States.”
The statute was passed in 2006. But questions among Justice Department officials about how to enforce it delayed implementation for another year. Some authorities worried that overzealous prosecutors might be tempted to use the narco-terrorism statute against teenage addicts caught with Afghan heroin. Follis, half-joking, told me, “The law was so wide open you could indict a bologna sandwich.” But, when officials from the Justice Department proposed adding language to the statute that would more narrowly define terrorism, Mackey balked. “There’s no need to spell out what we mean by terrorism,” he said. “You know it when you see it.”
In the next few years, the DEA lured two of the most wanted arms dealers in the world, Monzer al-Kassar and Viktor Bout, into drug-related conspiracies before arresting them, in Spain and Thailand, respectively. A former senior DEA official told me that, although Kassar and Bout were not charged with narco-terrorism, the agency’s expanded investigative license gave it more tools with which to pursue them. David Raskin, a former senior prosecutor in the Southern District of New York, hailed the arrests. “They were not pure drug smugglers,” Raskin said of Bout and Kassar. “But they were clearly bad people. And the DEA was pushing the envelope.”
By 2008, the DEA was part of the so-called Intelligence Community, the military and civilian agencies that are the U.S.’s foremost espionage resources. Michael Braun, who is widely considered the architect of the agency’s Afghanistan program, told reporters, “I have briefed more three- and four-star generals over the past 18 months than the agency has in the last 35 years.” He added, “We are seeing more and more unequivocal connection with respect to al-Qaida being involved in drug-trafficking activities.”
Some of the DEA’s investigations took the agency to Africa. With large swaths of ungoverned territory, long histories of civil conflict, and ascendant jihadist groups, including Boko Haram and AQIM, the continent was viewed by the Defense Department as the next front in the war on terror. The DEA had identified West Africa as a major transshipment point for South American cocaine. As in Afghanistan, most of the drugs were flowing to Europe. But the DEA argued that money from that trade was ending up in the hands of terrorists. Lou Milione told me that Colombian drug traffickers who had been arrested in Eastern Europe had confessed to moving drugs through the Sahara with the help of Arab smugglers, along routes that overlapped with areas that had been occupied by AQIM. “If anything was moving through that region, AQIM had to be involved,” Milione said. At the end of 2008, Derek Maltz, who led the DEA’s special-operations division, was invited to a gathering of senior leaders of the Pentagon’s newly established Africa Command. “I didn’t want these guys thinking I was just another DEA agent coming to talk to them about drugs,” Maltz told me. “I was there to talk to them about a matter of national security. And I wanted them to know from the start that it was personal.”
Maltz, who is bald and strapping, began his presentation with a series of photographs. The first showed the Twin Towers in flames. The second was a picture of his brother, Michael, a former member of an Air Force pararescue team, waving triumphantly. The third showed a line of helicopters parked on an airfield in Afghanistan. There was a gap, where one helicopter was missing — Michael’s. He had been killed on duty, in 2003. “You guys are trained to go out and drop bombs on the enemy,” Maltz told the assembled officers. “But sometimes you can’t drop bombs. And that’s where the DEA comes in. We have other ways of taking bad guys off the playing field.”
Harouna Touré arrived back in Mali in September 2014, after spending five years in prison in the United States. He and his childhood friend, Idriss Abdelrahman, seated in back, had been accused of being al-Qaida operatives. A federal judge rejected that accusation. (Jane Hahn for ProPublica)
Harouna Touré was born in a small Malian farming village called Bamba, the youngest of nine children. The family lived in a one-room shelter made of wood and mud. His father was a day laborer, who built houses and dug wells, and raised goats. Harouna attended school for only a few years before he joined his father at work. As soon as he was tall enough to drive, Touré, who is broad-shouldered and has dark, expressive eyes, moved to Gao. There he began working with his eldest brother, Almatar, who ran a small trucking company that transported goods and people across the Sahel, a semi-arid region that divides southern Mali from the north, where the Sahara begins. The area has bustled with unregulated trade since the 15th century. Roads are minimal, and driving 40 miles can take an entire day. “And by the time the trip is finished you will be sore from your head to your feet,” Touré told me. But he loved it. “For me, it was fun, because every day was different,” he said. “I was able to see new people and new places.”
Gao is a seedy city of about 100,000 people on the Niger River, the region’s primary thoroughfare during the rainy season. Running a business in the Sahel, Touré told me, is by definition a quasi-legal activity. He and his brother transported food, fuel, construction materials, cigarettes, and Bangladeshi workers — most of which came into the country without proper inspection or paperwork. Drivers travelled in armed convoys to protect themselves and their loads from bandits. They also paid off various military units, tribal authorities, and ethnic militias, who controlled the territory along the way. Touré told me that he never encountered al-Qaida or its operatives during his travels, but that he did cross the territory of other armed groups. “Sometimes you had to give them money, or food, or fuel,” he said. “If you didn’t, you were going to have problems.”
For a while, Touré thrived. He started a construction business that took on small projects in communities along his truck routes. He employed dozens of people, and made enough money to travel to Paris and to take his mother on the hajj. “I was moving so fast people used to call me the mayor,” he said. But he took on new jobs before being paid for old ones, and fell into debt. By the end of 2008, he had a wife and two children. And he was paying for treatment for Almatar, who had developed diabetes and had to have one of his feet amputated.
Poor harvests have caused serial food crises, and increasing poverty has pushed Mali close to the bottom of the United Nations Human Development Index. (Jane Hahn for ProPublica)
By then, the DEA had begun to plan operations in West Africa. Among the agency’s targets was AQIM, which had recently bombed a United Nations office in Algiers and regularly kidnapped foreign tourists, diplomats, and journalists for ransom. But working on the ground in West Africa wasn’t anything like working in Latin America, where the DEA had employees in territory ranging from Tijuana to Tierra del Fuego. African operations were overseen largely from Rome. The narco-terrorism unit covering the region was based in Chantilly, Virginia. And the DEA had so few agents of color who spoke African languages that it was forced to rely on informants, who were paid only if their work resulted in prosecutions. (Spokespeople for the DEA denied that informants were paid according to whether their intelligence led to prosecutions, and that its conduct in Africa was substantially different from that on other continents.) “We had significant gaps in our knowledge,” a former DEA official who did intelligence work said. But, he added, “after we began putting money on the streets we went from zero to 60 in no time.”
One of the paid informants was Mohamed, whom agents described to me only as a Lebanese businessman with ties to Arab communities in South America and West Africa. He was eventually paid more than $300,000 for his work on the Mali case.
In September 2009, an investigation into an unrelated plot led Mohamed to Oumar Issa, a compact Malian man with an easy smile and angu lar features, who worked as a day laborer and a driver at the port in Lome, Togo, another West African smuggling center. Mohamed told Issa that he was looking for someone who could help a group of wealthy Colombians move large loads of drugs from Ghana, through Mali, to Spain.
Issa said, “I have people who have a foothold in the bush.” He went to Mali to fetch Touré. The two had been friends since they were teenagers, but when Issa approached Touré about the drug deal Touré initially refused. Issa had strayed from Islam, and was known to drink too much. Touré didn’t want anything to do with drugs, mostly for religious reasons. And he didn’t think that he could pull off the kind of operation Mohamed wanted. Touré’s contacts did not stretch all the way across the Sahara. As for al-Qaida, Touré told me, “I could never work with them. They treat black people like slaves.”
But Touré says that Issa pleaded with him to reconsider. “I thought if I could just make that money everything would be fine,” Touré told me. “I could start fresh.” He enlisted Idriss Abdelrahman, who sold used auto parts at an open-air market in Gao. Together, Touré says, the three men concocted a scheme as elaborate as the DEA’s. While the informants pretended to be FARC operatives, Touré, Issa, and Abdelrahman pretended to be part of a criminal network with links to al-Qaida. The plan, Touré said, was to get the traffickers to pay them a portion of the money up front and then disappear into northern Mali. It was clear that the traffickers had never been to Mali, Touré said, so it wasn’t difficult to fool them.
On Oct. 6, 2009, Touré and Mohamed met for the first time, in a hotel room in Ghana. According to a DEA video recording of the meeting, Mohamed, a tall man, with a belly that hung over his belt, pulled out a map and proposed a route. Touré took it from him, and proposed another.
Touré told Mohamed that the trip wasn’t going to be cheap. “There are Islamists, bearded guys — they’re in the bush,” Touré said. “You gotta give their chiefs something.”
Mohamed called the Islamists “our brothers,” and said, “Let them take as much as they want to fuck the Americans.” He added, “You pay al-Qaida, right?”
Touré nodded. “You pay all that.”
Mohamed asked for more proof. He told Touré that he would invite a commander from the FARC to join them in Ghana, if Touré would bring a representative from al-Qaida. The DEA flew in Walter Ramirez, a convicted drug dealer from the Detroit area who had been working as an informant for the agency for nearly a decade, to play the role of the FARC commander, David. Touré brought in Abdelrahman, who played a militia leader with links to al-Qaida.
As a child, Idriss Abdelrahman worked as a servant in the homes of wealthy Arab families. He learned to speak some Arabic, to fix cars and to serve tea. (Jane Hahn for ProPublica)
The DEA maintains that, in the meetings that followed, the Malians offered ample testimony of their al-Qaida connections. The transcripts are hard to follow. It is clear, however, that the subject of al-Qaida came up repeatedly, and that it was often raised by the informants, in order to elicit incriminating statements.
On one occasion, Mohamed instructed the targets to talk in a bellicose fashion if they wanted to persuade David to move forward. “I have told him you are warriors,” Mohamed said. “Let it come from your mouth so that I can repeat it. You understand?”
David waved a wad of cash. “You told me you needed to buy a truck — isn’t that right?” he asked Touré. “Hey. $25,000 so you can buy your truck.” Mohamed suggested that David’s show of trust deserved one in return.
“You have to know our power,” Touré said. “You have to know our networks.”
“That’s it,” Mohamed said. “That’s what he wants.” Later, he asked the Malians if they really had “power in the desert.”
Abdelrahman chimed in: “We have cars, the power, and the weapons.” Touré added, “We have crews. We have bases. We have weapons. We have everything.”
On Dec. 18, 2009, when Touré, Abdelrahman, and Issa arrived in New York for their arraignment, the city was anticipating a major snowstorm. The three Malian men had never been so cold, or surrounded by so much concrete. They didn’t understand what a cocaine deal in West Africa had to do with the United States, much less with terrorism. And they were skeptical of their court-appointed lawyers, who were employed by the same government that had ordered their arrest. “There were a lot of people, a lot of cameras, a lot of papers, a lot of talking, and no air,” Touré recalled. “I couldn’t think. I couldn’t breathe.”
The three men were housed in the Metropolitan Correctional Center, in lower Manhattan. An Arabic-speaking psychologist met with them to evaluate their emotional state, but since Arabic was not their first language — they spoke Songhay — neither Touré nor Issa understood much of what she was saying. Abdelrahman had learned some rudimentary Arabic as a child, as a servant in the homes of wealthy Algerian families, but he didn’t understand the psychologist’s role. “She’s asking if we want to kill ourselves,” Abdelrahman told Touré and Issa. “Maybe what’s coming next is so bad that we will prefer to die.”
Later that day, the men made their first appearance in court. Julia Gatto, an attorney in the federal public defender’s office, said of Abdelrahman, “When the judge called his name, he fell on his knees, and cried, ‘I swear. I swear.’ ” Gatto said, “All I could think was, What kind of terrorists are these?”
Gatto was assigned to represent Issa. “Usually when I meet a client in his circumstances he understands what it is to be arrested, or who a judge is, or what bail means,” Gatto said. “There were basic concepts and words that he didn’t understand, because he had never been here. He had never been in the system; he had never seen an episode of ‘Law & Order.’”
The Malians’ lawyers warned them that, under the terms of the narco-terrorism statute, the government’s case was entirely winnable, and urged them to negotiate a plea. “When a jury hears ‘al-Qaida,’ it stops listening to everything else,” Gatto said.
Oumar Issa served five years in prison on charges that he was trafficking drugs to support al-Qaida. He has since returned home to his daughter, and his daughter’s mother in Mali. (Justin Clemons/AP for ProPublica)
Touré thought that his lawyers either had given up on him or were plotting with the prosecution. It seemed absurd that his improvised boasts to David and Mohamed could be enough to convict him. He asked his relatives in Mali to sell his home and to finish a pending construction project, so that he could hire a private attorney. The relatives sent him $30,000, enough only for a retainer. When the money ran out, the attorney quit. Touré then asked the judge to reappoint his original public defenders, and he immersed himself in the case. He spent nights listening to audio recordings from the sting operation, pointing out discrepancies in how the conversations were translated. Because he was illiterate, he asked his lawyers to read him all the documents filed in court, so that he would know what arguments were going to be made.
In early 2012, after the Malians had been in prison for more than two years, prosecutors announced that they had decided not to call Mohamed to testify. Abdelrahman’s attorney, Zachary Margulis-Ohnuma, saw it as a breakthrough. “The government’s whole case relied on Mohamed’s credibility,” he told me. By not calling Mohamed to testify, he believed, the prosecutors would throw his credibility into question. “I really believed we were going to win,” Margulis-Ohnuma said.
On the eve of the trial, prosecutors brought up a seemingly unrelated piece of evidence: the story of an American missionary named Christopher Leggett, who had been killed by AQIM in 2009, the year that Touré, Abdelrahman, and Issa were arrested. Leggett, a 39-year-old father of four, had been shot near a school that he ran in a poor neighborhood in Mauritania. Prosecutors shared photographs showing groups of dark-skinned, turbanned men waving rocket launchers and automatic rifles over the heads of kidnapping victims — all of them white, all visibly terrified. The prosecutors argued that the murder demonstrated why terrorist conspiracies in Africa posed a threat to the United States. “It shows jurisdiction,” Christian Everdell, one of the prosecutors, said.
“If you look at the people in those pictures, and you look at me and Idriss, you would think we are the same,” Touré said. Margulis-Ohnuma said that he felt “sandbagged.” As far as Touré was concerned, the fight was over. The government agreed to drop the narco-terrorism charge, and Touré, Abdelrahman, and Issa pleaded guilty to charges of providing material support to a terrorist organization, the FARC.
But Abdelrahman’s allocution, the procedure meant to assure the judge that he understood the charges against him and accepted his guilt, was unconvincing. “I still continue to believe that I am totally innocent,” Abdelrahman said. “But I have been scared by what I heard yesterday — yesterday people were talking a lot about al-Qaida and the pictures.” Judge Jones advised Abdelrahman that she could not accept a plea if he did not think he was guilty, and suggested that perhaps the case should proceed to trial. Everdell, the prosecutor, proposed increasingly watered-down versions of what Abdelrahman was pleading guilty to. “I think what the defendant is protesting is that he didn’t think, or in his mind he didn’t think, that he was a terrorist, or this word ‘terrorism’ is causing a reaction, which I think is perfectly understandable,” he said.
Idriss Abdelrahman holds his youngest daughter, Safiatou. She was born shortly after the DEA had him arrested and took him to the United States. Her mother died after Abdelrahman returned home. (Jane Hahn for ProPublica)
“I’m really confused about this whole plea issue,” Abdelrahman said. “Accepting this plea means to accept things I did not do, which I find very difficult.” He added, “Is that what the plea is, or is there something else?”
Jones told Abdelrahman that he would have to admit that he knew he was involved in a conspiracy that would have provided support to the FARC. Abdelrahman shook his head. “I didn’t know about that,” he said. “I was just helping Harouna. I wasn’t helping anyone else.”
Finally, Everdell allowed Abdelrahman to avoid mentioning the FARC, or even the word “terrorist.” “It’s not necessary that he knows the actual name of the organization,” he said.
The prosecution asked the court to sentence the men to 15 years in prison, five years short of the 20-year mandatory sentence for narco-terrorism. But Jones sentenced Abdelrahman to slightly less than four years, and Issa and Touré to five years. The sentences included the three years the men had already served. “This was a government sting operation,” Jones said. She added that she did not believe Touré was a member of al-Qaida. He was “motivated primarily, if not entirely, by money, not the desire to influence a government, in this case anti-American ideology, or for any political reasons.”
A month later, despite the reduced plea, the DEA’s deputy administrator, Thomas Harrigan, mentioned the case to the Senate as an example of the national-security threats that the agency had thwarted in West Africa: “It was the first time that members of al-Qaida … admitted members — we had them on video and audio recording acknowledging that they were members of AQIM — providing services for what they presumed were members of the FARC to transport cocaine.” In a speech last year, Sen. Chuck Grassley, R-Iowa, cited the case in arguing against provisions that would reduce sentences for drug-related crimes. He said that the proposal “puts our national security at increased risk.”
The DEA continues to pursue similar cases. In September, two Pakistani men were extradited to the U.S. for selling drugs and weapons to DEA informants who posed as members of the FARC. Mark Hamlet, who succeeded Maltz as head of the DEA’s special-operations division, told the press that the Pakistani defendants “illustrate once again that drug trafficking and terror conspiracies often intersect.”
Neither the DEA nor the Justice Department would provide me with a complete list of alleged narco-terrorists who have been captured since 9/11. But last May the DEA’s Counter-Narco-Terrorism Operations Center published a report highlighting its achievements. The report notes that, of the State Department’s 58 officially designated foreign terrorist organizations, 23 have been linked by the DEA to “some aspect of the global drug trade,” including al-Qaida, Somalia’s Al Shabaab, Pakistan’s Lashkar-e-Taiba, and Nigeria’s Boko Haram. It also gives brief descriptions of more than 30 investigations involving defendants captured around the world. Some have been charged under the narco-terrorism provision of the Patriot Act. In other cases, the DEA used the expanded authority it had been given under the law more as an investigative license. After the agency brought the defendants to the United States, they were charged with different crimes.
Melinda Beck, special to ProPublica
Most of the arrests resulted from sting operations, in which the connection between drug trafficking and terrorism was established in court as a part of conspiracies that were conceived by the DEA. An Afghan named Taza Gul Alizai sold heroin to an undercover DEA agent, and then, according to his lawyer, was lured onto a plane to the Maldives by the promise of a visit to a licensed dentist. In his case, the connection to terrorism came from the testimony of a DEA informant, who arranged the deal and pretended to represent the Taliban.
Among those caught in the narco-terrorism stings are government officials such as Bubo NaTchuto, a former head of Guinea Bissau’s navy, who was arrested for drug smuggling in 2013, after an operation led by two DEA informants posing as members of the FARC. The same year, Dino Bouterse, the son of the president of Suriname, was arrested for conspiring to import drugs. The investigation involved a group of DEA informants who posed as Mexican drug traffickers with connections to Hezbollah.
In a New York courtroom last year, Bouterse pleaded guilty to participating in a conspiracy to support Hezbollah. Not long afterward, however, Judge Shira Scheindlin said that the plea did not make the defendant a terrorist, much less a threat to the United States. “There’s no evidence that this defendant was actively looking for an opportunity to become involved with any terrorist organization,” she said, during sentencing. “Nor is there any evidence that he had any interest in attacking Americans, prior to the approach of these agents.”
Most of those accused under the narco-terrorism statute negotiated plea deals, but the three defendants who chose jury trials were convicted. Among them were an alleged Taliban sympathizer named Khan Mohammed, who was found guilty of plotting to fire rockets at an American airfield, and an Afghan opium dealer, known as Haji Bagcho, convicted of selling drugs and using the proceeds to pay the Taliban. Both men were given life sentences.
The case that may come the closest to representing the vision that gave rise to the narco-terrorism statute involved a Colombian trafficker allied with the FARC named José María Corredor Ibague, who was arrested in 2006 and convicted under the Patriot Act provision. Juan Manuel Santos, Colombia’s defense minister at the time, applauded the arrest, which did not occur as part of a sting operation. But, when asked whether he considered Corredor Ibague a terrorist, Santos told reporters that he was “more of a drug trafficker than a guerrilla.”
Referring to the DEA, Margulis-Ohnuma, the lawyer who represented Abdelrahman, said, “What’s happening is that they’re using techniques they’ve used to fight organized crime, because they’re familiar with them. Those techniques might work to infiltrate money-making groups. But they don’t work with terrorists. That’s not how we caught bin Laden. That’s not how we caught Awlaki.”
The DEA argues that there is much more to its narco-terrorism cases than what is presented in court. Before every sting, the agency uses wiretaps and its network of sources to investigate targets for links to drugs and terrorism. Once the connections are established, it stages a sting to capture the targets before they can do more harm. In order to protect the secrecy of its investigative methods, the DEA says, it withholds much of the evidence collected previously, unless it’s necessary to make a case. Most of the time, officials say, it’s not. Under U.S. law, the statements and activities recorded during stings are usually sufficient for prosecutors to file some combination of federal charges.
But the fact that the narco-terrorism cases, when brought to court, rely almost entirely on evidence gleaned from sting operations has fuelled debate among some security experts about the degree to which the alliances that they target pose a threat to the U.S. Benjamin Bahney, of the Rand Corporation, who is a leading expert on the financing of al-Qaida and ISIS, told me, “The national-security community has had a laser focus on this question for a long time, and the fact that there are no clear examples of it that have bubbled to the surface says to me that there’s no there there.”
ISIS, currently the foremost terrorist threat, is funded by oil revenues, taxes, and extortion but not by drug trafficking. Though al-Qaida is listed by the DEA as a drug-trafficking organization, the 9/11 Commission found “no substantial evidence” to support that characterization. Its report said, “Although there is some fragmentary reporting alleging that Bin Ladin may have been an investor, or even had an operational role, in drug trafficking before 9/11, this intelligence cannot be substantiated and the sourcing is probably suspect.” The Senate Foreign Relations Committee came to the same conclusion in August, 2009. “A lot of people have been looking for an al-Qaida role in drug trafficking, and it’s not really there,” one State Department official told committee members.
In the Afghan drug trade, the Taliban may be the least of the culprits. In 2009, the United Nations Office on Drugs and Crime reported that the Taliban earned an estimated $125 million from narcotics each year, about four percent of the estimated $3.4 billion generated in Afghan opium sales. The bigger problem, according to Barnett R. Rubin, who served as an adviser to the late Richard Holbrooke, the U.N. Ambassador, might be America’s allies. “The empowerment and enrichment of the warlords who allied with the United States in the anti-Taliban efforts, and whose weapons and authority now enabled them to tax and protect opium traffickers, provided the trade with powerful new protectors,” he has written.
Brian Michael Jenkins, a counterterrorism expert at Rand, recently wrote that alliances between drug traffickers and terrorists “create dangers for both.” Terrorists understand that criminal activities can “turn religious zeal into greed, transform political causes into for-profit enterprises, corrupt individuals and tarnish the group’s reputation.” For the drug traffickers, “When law enforcement problems morph into national security threats, the rules of engagement change,” Jenkins wrote. “Drone strikes could replace arrests and prosecutions.”
Skepticism about the extent to which terrorists engage in the drug trade also runs deep among numerous counterterrorism and national-security officials I spoke to at the FBI, the Pentagon, the White House, and the State and Treasury Departments. “In all these years, there’s never been a smoking gun in any of the cases I’ve seen,” Rudy Atallah, a former counterterrorism adviser at the Pentagon, told me.
A former official at the Treasury Department who has investigated terrorist financing in Africa said that DEA agents posted there often scolded the intelligence community for not taking seriously the links between drug trafficking and terrorism. But, when pressed for proof, the agents said that the information was privileged or part of an ongoing investigation. “There was no corroborating evidence that senior terrorist leaders of Hezbollah, AQIM, or any other African groups had decided to get involved in the drug trade,” the former official said.
Lou Milione, who oversaw many of the investigations listed in the DEA’s narco-terrorism report, and Mark Hamlet, the head of the DEA’s special-operations division, acknowledged that other national-security agencies, including the CIA and the FBI, didn’t necessarily see a link between drugs and terror. “I have lunch with those guys all the time,” Hamlet said. “They look at our cases and say, ‘Interesting work, but I wouldn’t put it in my terrorism box.’ And I say that’s fine.”
Milione strongly defended the agency’s operation against the Malians. He said that while there may not have been evidence to corroborate Touré’s links to al-Qaida, nothing indicated that those links didn’t exist. He said that the DEA could have spent more time conducting surveillance against Touré in the hope of obtaining evidence to corroborate his statements about being affiliated with al-Qaida. But agents worried that an opportunity to infiltrate al-Qaida could have slipped away, with potentially disastrous consequences. “I was in New York when the towers were hit,” Milione said. “I often wonder would we be better off if we had used a sting to try to get inside that group before the attack.”
Bamako, the capital of Mali, has recently been the scene of attacks by Islamic extremists linked to al-Qaida. (Jane Hahn for ProPublica)
Last October, about a month after Touré was released and returned to Mali, I went to see him. He suggested that we meet in Bamako, the capital, since Gao has become dangerous. In 2012, Mali’s President, Abdoulaye Toumani Touré, resigned as a result of a military coup, and left the country. Gao, along with all of northern Mali, was attacked by a loose coalition of Tuareg tribesmen, extremists, and AQIM. Touré’s wife and sons fled the city to live with relatives in Bamako. The new President, Ibrahim Boubacar Keïta, who was elected after he promised that he would have “zero tolerance” for corruption, promptly used $40 million in public funds to buy an airplane. Poor harvests have caused serial food crises, and increasing poverty has pushed Mali close to the bottom of the U.N.’s Human Development Index.
The north, which covers two-thirds of the country but contains less than 10 percent of the population, has been hit the hardest. When Touré returned, tourism and trade, the most significant sources of income for people in the region, had dried up. Hotels, restaurants, and night clubs were either closed down or protected by armed guards who imposed strict curfews on the guests, mostly journalists and diplomats. Rocket attacks and gun battles have killed dozens in recent months. Touré said that his homecoming was less than joyous. There was nothing left of his business. He found his wife distant. His sons, who were six and eight, were undernourished and were uncomfortable around him. The boys, he said, are so frightened of anything related to terrorists that he can’t tell them that he was accused of being one. “I’ll wait until they are a little older,” he said. “First, I need to find a job.”
Abdelrahman, after getting out of prison, moved with his mother and four children to Bamako. He had lost both of his wives; one had left him for another man after his arrest, and the other died shortly after he returned home. “She got sick when I was in America,” Abdelrahman said. “It was very hard for her. A woman with children and no husband in Mali—sometimes she had to beg for food.” He added, “She stayed strong, I think, because of the children, and because she wanted to see me one more time. Then she died.”
Touré told me that he was thinking about leaving Gao, too. He even admitted that there were things he missed about the United States, or, at least, the version he had seen in prison. He remembered working out in the gym every day, and the English classes he took in the afternoon. Most nights, he said, he and other inmates would gather around a television set to watch basketball. He recalled that, after the Miami Heat lost the 2014 NBA championship series to San Antonio, he didn’t sleep for several nights.
Since returning to Mali, he had felt himself sliding back into the same uncertainty that had landed him in trouble. Starting over with a terrorist charge on his record wasn’t easy. “The name Touré has respect in Mali,” he told me. “Just to say that I have been involved in this is a big shame for my family. People ask am I really Muslim, or am I just playing with God.”
The more time I spent in Mali, the less I saw of Touré. But one day he showed up at my hotel neatly shaved, wearing a charcoal-colored pin-striped suit, a magenta shirt, and polished, square-toed alligator shoes. We sat in the restaurant of my hotel on the Niger River, drinking tall glasses of water. Touré explained that a friend from prison had bought him the suit for the trip back to Mali. He was about to meet with a member of parliament who had previously helped him get work with international aid organizations that needed goods transported across the Sahel.
“I know it’s going to happen,” he said, about securing employment. “I just wish I knew when.” When asked about the gap in his work history, Touré had begun telling people that he had gone to the United States to work for a few years. “There are many people with the name Harouna Touré in Mali,” he said. “Even if people know what happened, I can say that wasn’t me.”
I asked whether he saw the irony in his plan — lying about his identity was what had got him into trouble. “If I’m lying to find a job, God won’t punish me,” he said. Then he looked up with a smile, and said, “If I don’t find a job, maybe I’m going to have to join al-Qaida for real.”
Cynthia Cotts contributed to this report. Design and production by David Sleight and Emily Martinez.
Ginger Thompson is a senior reporter for ProPublica. A Pulitzer Prize-winning journalist, Thompson was previously a national and foreign correspondent for the New York Times.
VICE News reporter and author Jason Leopold sometimes goes by another title: “FOIA terrorist.” Coined by a government official annoyed by the number of Freedom of Information Act requests Leopold had filed, the investigative journalist has proudly reclaimed the description and its bearing on his work by requesting documents from every imaginable government agency.
From Department of Defense records detailing abuses at Guantanamo Bay to files on which celebrities the CIA is tracking, Leopold’s reporting is driven by relentless searches for primary source documents. He is remarkably effective at getting the government, over and over again, to spill its secrets.
On this super-sized podcast – recorded live at Rutgers University on December 14 – Leopold speaks with ProPublica assistant managing editor Eric Umansky and audience members about tips for filing FOIA requests creatively and successfully, his most surprising finds, and the high-profile mistake that led to his fixation on FOIA.
The Daily Targum/Dimitri Rodriguez
Highlights from their conversation:
Combing through thousands of pages may be tedious, but the work is worth it. Leopold: It’s labor intensive to digest these documents that are very valuable. When I receive a couple thousand pages of documents, I try to sit with it for a while. I’ll read it once, I’ll read it again, I’ll make notes about page 22. From there, I get an idea of what the narrative will look like. It’s just a matter of investing the time.
If an agency declines a FOIA request, sometimes it takes filing a lawsuit to pry information loose. Leopold: Of all the news organizations that filed for [the video of the fatal police shooting of Laquan McDonald in Chicago], only one person sued for it – and it was an independent journalist. He has no backing from any news organization, but he decided to go to the next level and seek out a lawyer who I believe took it on pro bono. They forced the release of that. It was amazing to me that it took an independent journalist to do that.
Getting burned by a source and botching a high-profile story ended up making him a better journalist. Leopold: It was probably the worst experience I’ve ever had as a journalist. It was also an opportunity. … Three years later, a friend passed along documents they’d received through the Freedom of Information Act. These were extraordinary documents. It was a PowerPoint presentation given to nuclear missile officers about the ethics and morals of launching nuclear weapons. In this presentation it showed that Jesus Christ, literally, would support launching nuclear weapons. … I published the story and attached these documents, and the story went viral. This ethics training had been in place for 20 years, and after the story came out the Air Force immediately ended it. At that point I thought, I need to do more of this kind of work, where the documents become the primary source material. One – it allowed me to continue doing the work. Two – it could be a good path to allow me to restore my credibility.
Race on America’s college campuses has been in the news of late. Debates about diversity, free speech, safe space and more have raged. Adam Liptak, who covers the U.S. Supreme Court for The New York Times, even theorized the debates might affect the outcome of an affirmative action case the court is rehearing arguments on today.
In 2013, Nikole Hannah-Jones wrote a surprising and resonant story concerning the case, Fisher v. University of Texas. ProPublica again offers that article to our readers, along with a sampling of the recent coverage on the issue of race and the college campus.
The New York Review of Books previews what’s expected to happen in the rehearing of the Fisher case. “Most court watchers expect the Court to overturn the lower court’s decision, and question only whether it will do on so on broad grounds, calling into doubt all affirmative action programs, or on narrow grounds specific to the Texas case that will permit other affirmative action to survive — at least for now,” the story says.
New York City landlords who get big tax breaks in exchange for capping rent increases would have to provide an inventory of their apartments to city housing officials under legislation unveiled this week.
The measure, introduced by City Council Member Ben Kallos, Housing Committee Chairman Jumaane Williams and other officials, would require the city’s housing agency to keep track of every apartment built with taxpayer subsidies. It would also make it easier for tenants to get information online about apartments for low- and moderate-income residents.
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The proposed law was prompted by a ProPublica investigation last month that identified 50,000 apartments in buildings receiving tax breaks under two programs, 421-a and J51. The apartments were not registered with the state for rent stabilization, which provides tenants with eviction protection and limits rent increases, as a requirement of receiving the tax breaks.
Under the two long-standing programs, meant to encourage more housing, landlords are forgiven a portion of their property taxes. Benefits can last up to 34 years and cut taxes by more than 90 percent annually. Property taxes are generally the biggest expense landlords have.
The failure to register units in more than 5,500 buildings exposes tens of thousands of tenants to the possibility of illegal rent increases or evictions. Owners of the buildings collected more than $100 million in property tax savings despite not holding up their end of the bargain, ProPublica found.
New York Attorney General Eric Schneiderman and city and state housing agencies recently cited owners of 194 buildings for failing to register. The 1,823 units they were able to get back on rent-stabilization rolls through this and previous enforcement actions are only a small fraction of a much-bigger problem, however.
“Everyone knew that this was a problem, and there was anecdotal evidence here and there, but nobody understood the gravity of the problem,” said Kallos, lead sponsor of the legislation.
“Even with the Attorney General, the Governor and the Mayor looking at it here and there and finding a thousand units here or a hundred units there, nobody’s actually going after the whole 50,000 units that have been identified,” Kallos said.
Kallos said ProPublica’s report “quantified the problem.” He hopes his bill will empower the city’s Department of Housing Preservation and Development (HPD) to bring all 50,000 units into compliance.
ProPublica identified the missing units by cross-checking two databases — one that tracks tax breaks and another that shows buildings that had registered for rent stabilization. Long-time HPD analyst Stephen Werner had warned higher-ups about the unregistered units for years, ProPublica reported.
The city’s housing agency is responsible for approving the tax breaks, but it hands off enforcement of rent-stabilization laws, including annual registration, to the state’s Department of Housing and Community Renewal. That’s created a regulatory blind spot that tenant groups have complained about for years.
“If (landlords) are getting a huge tax break, and the taxes they are not paying are city taxes, we should know if they are following through with their promises,” said Kerri White, of the Urban Homesteading Assistance Board, a tenant advocacy group.
Image may be NSFW. Clik here to view.At an October meeting at his office, New York City Council Member Ben Kallos, right, called HPD analyst Stephen Werner, left, a “hero” for alerting him to the problem of unregistered apartments. (Cezary Podkul/ProPublica)
Under the proposed law, HPD would be able to fine landlords up to $2,000 per unit each month for failing to register. HPD did not respond to a request for comment.
Kallos’ bill would also require HPD to create a new online "Housing Portal,” where prospective renters could browse and apply for rent-stabilized apartments that are specifically set aside for low- and moderate-income tenants. Owners would have the option to list market-rate units on the portal as well.
Wiley Norvell, a spokesman for Mayor Bill de Blasio, said his office will review the legislation and that “increasing accountability in these tax programs has been a major priority for the administration.”
Housing and tenant advocates briefed on the bill said it would be a big improvement over the current system, where registration is largely voluntary and penalties — such as revocation of tax breaks — have been mostly nonexistent.
“Self-reporting is not sufficient,” said Harvey Epstein, associate director of the Urban Justice Center, which advocates for low-income residents. “We need more government oversight and checks and balances on landlords.”
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“PPL WORLD WIDE,” the Facebook post shouted, using text-speak for the word “people.” “FRANCES … IS HPV POSITIVE!”
The public missive from January 2014 gave Frances’ full name, along with the revelation that she had human papillomavirus, a sexually transmitted disease that can cause genital warts and cancer. It also included her date of birth and ended with a plea to friends: “PLZ HELP EXPOSE THIS HOE!”
About the Series
This year, ProPublica has been chronicling how weaknesses in federal and state laws, as well as lax enforcement, have left patients vulnerable to damaging invasions of privacy.
Within hours, a friend told Frances that a former high school pal who lived near her in northwest Indiana had shared a secret that only her family and a former boyfriend knew, she later said.
“My heart fell to my stomach,” said Frances, a dental assistant in her late 20s who asked that her last name not be used. “I started crying immediately.”
The Facebook poster was a patient care technician at the local hospital where Frances was treated, but the two were no longer friends.
Frances complained to a nursing supervisor at the hospital, which sent her a letter of apology in March 2014. “Please know that we take these types of situations very seriously,” the letter said. “We did take action in accordance with our policies and procedures,” although it did not specify what had been done.
Under the federal law known as HIPAA, it’s illegal for health care providers to share patients’ treatment information without their permission. The Office for Civil Rights, the arm of the Department of Health and Human Services responsible for enforcing the law, receives more than 30,000 reports about privacy violations each year.
The bulk of the government’s enforcement — and the public’s attention — has focused on a small number of splashy cases in which hackers or thieves have accessed the health data of large groups of people. But the damage done in these mass breaches has been mostly hypothetical, with much information exposed, but little exploited.
As Frances discovered, it’s often little-noticed smaller-scale violations of medical privacy — the ones that affect only one or two people — that inflict the most harm.
Driven by personal animus, jealousy or a desire for retribution, small breaches involving sensitive health details are spurring disputes and legal battles across the country:
In Tampa, Florida, a nurse snooped in the medical records of her nephew’s partner, learned that she had delivered a baby and had put the child up for adoption. She gave a printout to another family member, and the secret was announced at a family funeral in 2013, the Tampa Bay Times reported. The niece complained to the hospital; the nurse admitted what she did, was fired and relinquished her Florida nursing license.
A New Jersey woman sued a local hospital this fall, alleging that one of its employees shared details about her 11-year-old son’s attempted suicide with people at his school. The boy was subsequently “bullied by his peers, called names and made fun of,” her lawsuit says.
And in South Carolina, prosecutors allege that lawyers were illegally given information from the state’s prescription drug monitoring program database to gain an edge in family court cases. A pharmacist and drug screener were indicted in August for conspiring to violate the rules governing the database; the pharmacist also was accused of disclosing data on prescriptions for controlled substances. The men have pleaded not guilty.
Even when small privacy violations have real consequences, the federal Office for Civil Rights rarely punishes health care providers for them. Instead, it typically settles for pledges to fix any problems and issues reminders of what the Health Insurance Portability and Accountability Act requires. It doesn’t even tell the public which health providers have reported small breaches — or how many.
Tami Matteson, a California high school teacher, complained to the agency in September 2013 after learning that her ex-husband’s new wife, who worked as a medical records clerk at the local hospital, had looked at her records more than a dozen times over three years. It turned out the worker also snooped in other people’s records, too.
But OCR decided not to sanction Northern Inyo Hospital after it terminated the clerk, sent privacy reminders to staff, increased its audits and instituted new policies. The hospital’s compliance officer declined to comment to ProPublica but said in a court filing that the incident may have caused patients to lose confidence in the rural hospital.
Even though the clerk lost her job and pleaded guilty to a misdemeanor criminal charge, and even though the hospital paid Matteson $25,000 to resolve her legal claim, she said she still can’t get over what happened. It has undermined her trust in doctors and the entire medical establishment, she said.
“HIPAA did nothing for me — not one thing,” Matteson said. “I no longer can go to the doctor and feel safe or comfortable.”
Asked about some of the privacy violations highlighted in this report, OCR Director Jocelyn Samuels called them “heartbreaking stories” and “the kinds of harm that HIPAA is intended to address.”
She insisted her agency isn’t afraid to pursue formal sanctions when they are warranted, but said its primary role is helping health providers to follow the law. “Our preference is always to promote voluntary compliance,” Samuels said.
For patients, Samuels’ agency is usually the only place they can seek vindication. HIPAA does not give people the right to sue for damages if their privacy is violated. Patients who seek legal redress must find another cause of action, which is easier in some states than others.
After being attacked on Facebook, Frances contacted Indianapolis lawyer Neal Eggeson. He had won jury verdicts for people whose medical information was improperly disclosed. Eggeson contacted the hospital and, without filing suit, secured a confidential settlement for Frances. (He asked that the facility not be named in this story.) Frances’ former friend no longer works there, she said.
Frances said she still hasn’t fully recovered. She sees a therapist and has a hard time trusting others.
“It’s hard to even still deal with it,” she said. “I’ll spend that extra gas money to go into another city to do grocery shopping or stuff like that just so I don’t have to see anybody from around the neighborhood.”
From insurance defense to privacy offense
Eggeson, a litigator, was defending insurance companies in car accident cases when a “friend of a friend of a friend” referred a young man to him. The man, who is HIV positive, had been sued over a $326 debt by the medical group that had been treating him. The group’s court filing gave the man’s name, home address, Social Security number and date of birth — and included a billing statement containing the phrase “Last Diagnosis: HIV.”
“His first concern was getting the court record sealed, more than anything else,” Eggeson said. “I don’t think he had any designs or visions beyond that.”
After that victory, Eggeson represented Abigail Hinchy, who alleged that a Walgreens pharmacist had snooped in her prescription records and shared the information with the father of Hinchy’s child (the man was dating and later married the pharmacist). Among the data shared: Hinchy had stopped taking birth control pills shortly before she became pregnant. A jury ordered Walgreens and the pharmacist to pay Hinchy $1.44 million.
A state appeals court upheld the award last year, saying trial evidence showed the man used Hinchy’s information to berate her for “getting pregnant on purpose” and extorted her “by threatening to release the details of her prescription usage to her family unless she abandoned her paternity lawsuit.” A copy of Walgreens’ check is framed on the wall of Eggeson’s home office, not far from his life-sized Batman costume and Star Wars lightsabers.
Image may be NSFW. Clik here to view.A chance referral led Indianapolis attorney Neal Eggeson into a practice focused on privacy breaches. “My argument has been that protecting the confidentiality of your protected health information, protecting your privacy, is part of what it is to be a doctor.” (A.J. Mast for ProPublica)
In 2008, Eggeson stopped handling insurance work altogether to devote himself to privacy cases.
“The vast majority of people who come through my door honestly are upset that no one has stepped up to the plate and said that what happened to you was wrong,” he said. “If the health care provider isn’t going to give them that satisfaction, then maybe a jury will.”
Among Eggeson’s current clients is a couple who claim that when their son was in an ATV accident this August, a hospital worker posted a comment on Facebook before the hospital had told them the teen had died. Panicked relatives who saw the post began calling his parents for updates, adding stress to an already wrenching time.
“It wouldn’t have changed the outcome,” said John Stuck, the boy’s father, “but just the feeling of what in the heck, what do they know that we don’t, that’s what freaked me out I think the most.”
Eggeson said he’s handling about a dozen cases. He turns away far more, mostly because he’s a solo practitioner with limited bandwidth and isn’t licensed in other states.
He shared a 17-page list of the calls and emails he’s received since mid-2013, including a sentence or two about each but no identifying information. Among them: A Massachusetts woman whose ex-sister-in-law accessed the patient’s infectious disease records, told relatives and posted it on Twitter, and a whistleblower at the U.S. Department of Veterans Affairs who contends her own medical records were accessed hundreds of times in retaliation.
When Eggeson files lawsuits, he argues that privacy breaches amount to medical malpractice.
“My argument has been that protecting the confidentiality of your protected health information, protecting your privacy, is part of what it is to be a doctor,” he said. “It’s part of your oath, it’s part of your duty.”
While Indiana courts have been receptive to such arguments, courts in Ohio, Minnesota and other states have ruled that health providers are not liable for the actions of workers who snoop in medical records outside the scope of their jobs.
A federal court in New York rejected a claim against the Guthrie Clinic, where a nurse accessed records of a man being treated for an STD after recognizing him as her sister-in-law’s boyfriend. While the man was awaiting treatment, the nurse sent at least six text messages to her sister-in-law informing her of his condition. The man, identified in court records as John Doe, complained to the clinic’s administrator and the nurse was fired, but a judge ruled the clinic couldn’t be held responsible for her actions.
“There is no evidence or allegation that [the nurse] took such steps on behalf of the clinic, or with the clinic’s authorization,” U.S. District Judge Michael Telesca wrote in 2012, dismissing the case. A federal appeals court upheld the ruling.
Celebrities’ Medical Records Tempt Hospital Workers to Snoop
Snooping on celebrities has been a bane for health systems around the country for years. Here's a partial list of high-profile breaches and the consequences that accompanied them. Read the story.
This summer, a Los Angeles jury ruled against a patient who sued UCLA and the Regents of the University of California after a romantic rival accessed and shared her medical records. The rival was a temporary worker in the office of a private practice physician affiliated with UCLA’s Santa Monica hospital. The doctor acknowledged improperly sharing his password and settled his part of the lawsuit.
UCLA maintained that it had taken adequate steps to protect patient privacy and that it should not be held liable for doctors and employees who break the rules. “We are pleased that the jury recognized that UCLA Health System’s policies concerning electronic medical records strike the right balance between protecting patient privacy and providing our patients with world-class medical care,” it said in a statement after the verdict. UCLA declined further comment.
J. Bernard Alexander III, the plaintiff’s lawyer, said UCLA’s privacy protections weren’t enough to catch violators unless patients complained. “If you aren’t checking to find out if there was a breach, you aren’t going to find it.”
Eggeson said it’s distressing that more states aren’t like Indiana.
“Privacy protections should be the same regardless of what state you’re in,” he said. “There is something wrong with an employer providing the means, providing the access, and providing the tools by which an employee can commit this crime and then being able to hold up their hands and say, ‘It’s not our fault.’”
Small breaches get less attention
The vast majority of the Office for Civil Rights’ enforcement work has been directed at large-scale medical data breaches, whether or not they result in any demonstrable real-world harm.
Health providers are required to notify the office within 60 days of breaches affecting at least 500 people and also must share details with the media and contact those potentially affected. OCR’s website makes public a list of these cases, highlighting them on what industry insiders dub the Wall of Shame.
Several massive breaches have come to light this year: In February, Anthem Inc. disclosed that hackers had accessed records of nearly 80 million people. The following month, Premera Blue Cross, based in the Pacific Northwest, disclosed that a similar cyberattack had exposed the records of some 11 million people.
OCR is investigating these cases — and similar ones — though the companies say there’s been no evidence that victims’ data has been shared or exploited.
Organizations only have to report them to OCR once a year. Even then, the agency doesn’t post them online and HHS has rejected requests under the Freedom of Information Act for information about them.
HHS is supposed to submit annual reports to Congress about the number and nature of medical privacy breaches and the actions it has taken in response. But the department actually submits such reports every two years and its most recent one covered 2011 and 2012. OCR says another report will be coming soon.
Since 2009, OCR has received information about 1,400 large breaches. During the same time, more than 181,000 breaches affecting fewer than 500 individuals have been reported.
The agency has levied only a few fines for HIPAA violations that involved a small numbers of people. Among them: In 2008, UCLA Health System agreed to pay $865,500 for failing to protect the privacy of two celebrity patients. And in 2013, Shasta Regional Medical Center in California paid $275,000 for sharing medical information with news organizations and employees about a patient who was featured in a news article alleging potential Medicare fraud.
In September, the HHS inspector general issued a pair of reports that criticized the Office for Civil Rights, including its handling of small breaches. The inspector general said OCR did not investigate the small breaches reported to it or log them in its tracking system.
“OCR does not record that information and therefore it’s not available for staff to be able to look over time” for repeat offenders, said Blaine Collins, regional inspector general for evaluation and inspections in San Francisco. “Boy, that’s critical for monitoring and oversight.”
Samuels said that her agency is implementing the inspector general’s recommendations to improve oversight. “We are constantly looking for ways to better serve the public and improve our operations,” she said.
‘An act of vengeance and retaliation’
Peter Brabeck, a 73-year-old retired petrophysicist who worked for the oil giant BP, turned to OCR in September 2011 when he found himself in the midst of a nightmare.
It began a year earlier when Brabeck’s brother complained to the Medical Board of California that Dr. Steven Mangar, a pain doctor in Salinas, California, had overprescribed controlled substances to Peter. The medical board accused Mangar of prescribing drugs without examining Peter Brabeck and sought to take disciplinary action against his license.
Mangar reacted by hiring a private investigator to dig up dirt on Brabeck — and gave the investigator all of Brabeck’s medical records. When Mangar refused to pay the investigator, he approached Brabeck’s brother and showed him the records. The investigator then offered to sell the records to Peter Brabeck, who within days complained to the Office for Civil Rights.
“Here we have not only a gross violation of [HIPAA] laws protecting the confidentiality of every patient’s medical history, but in my mind far worse,” Brabeck wrote in his complaint. “Here is a deliberate attempt, born of vengeance, with malice aforethought to inflict great harm on his own patient.”
Image may be NSFW. Clik here to view.Peter Brabeck at his home near Carmel, California. (Ramin Rahimian for ProPublica)
Two years later, the Office for Civil Rights wrote back, saying it was “pleased to inform” Brabeck that his complaint has been resolved. It said it had provided Mangar’s clinic, the Pacific Pain Care Institute, with guidance on how to comply with privacy rules. It said Mangar had acknowledged that he “impermissibly disclosed” Brabeck’s personal health information to the private investigator.
OCR also said that Mangar had agreed to provide Brabeck with free credit monitoring.
“Based on the foregoing, OCR is closing this case without further action,” the letter said.
Brabeck, who lives near Carmel, California, said he never actually received the credit monitoring. More importantly, he was left with a sense that the agency didn’t take his case seriously.
“I made very clear in my letter that it was an act of vengeance and retaliation,” he said. “That’s why I was so surprised at how lightly they dismissed the whole thing.”
Even the private investigator who asked Brabeck’s brother for money was surprised by the outcome of the case.
“In all my years in the business, I never experienced anything like that where a complete file was turned over,” said Dan Taubman, who said he is still owed $6,800 by Mangar. “He didn’t care who he hurt or burned.”
Mangar did not return calls for comment. California’s medical board placed his license on probation in 2012 and is now seeking to revoke it, saying he violated his probation and provided negligent care to other patients. Earlier this year, federal and state investigators served search warrants at Mangar’s office and home. Monterey County Deputy District Attorney Amy Patterson said Brabeck’s concerns are part of a much broader investigation that she could not discuss because it is ongoing.
OCR director Samuels said Brabeck’s case pre-dated her arrival at the agency. But she said it was consistent with “our general principles” in terms of the nature of the injury, the number of individuals affected and a provider’s lack of prior HIPAA violations. She also said the doctor agreed to apologize, which “can be very powerful in terms of remedying the damage that has been done.”
Brabeck said he didn’t get an apology: “No. Absolutely not.”
Warning employees before they snoop
Cedars-Sinai Medical Center in Los Angeles is trying to stop privacy breaches before they happen. Known for its celebrity clientele — its board of directors includes Barbra Streisand and Steven Spielberg — Cedars-Sinai has dealt repeatedly with employees trying to access records they have no business seeing.
In July 2013, the hospital fired six people who inappropriately accessed patient records, reportedly including those of reality TV star Kim Kardashian, who had given birth at the hospital to her daughter with rapper Kanye West.
The hospital fired three employees and took corrective action against three other people last year for inappropriately accessing patient information; it terminated two more workers this year, spokesman Richard Elbaum said.
Like other hospitals, Cedars-Sinai’s electronic medical records system has a feature known as “break the glass.” When an employee attempts to access information on high-profile patients, the system asks for a reason and requires the employee to re-enter his or her password.
That generally works, but such a warning isn’t in place for every record, in part because officials in the information security world fear it would be ignored if it were seen merely as a second password requirement. For typical patients, it generally takes a complaint to trigger a review of the transaction log to see if anybody inappropriately accessed a record.
Cedars-Sinai is working with security specialists to augment its first layer of protection. Its goal: To create a warning system that generates automatic alerts based on pattern recognition, akin to what credit-card companies use to flag suspicious transactions.
The system will sift through the hospital network’s traffic, looking for unusual activity. It might flag an obstetrician/gynecologist looking at the records of male patients or a staff member who looks at six medical records in quick succession. It might notice a staff member looking at the records of a neighbor. Or it might recognize that one staffer has looked at 20,000 records in a month when peers only viewed 3,000.
“Maybe they deserve a raise — or something is awry,” said Darren Dworkin, chief information officer at Cedars-Sinai Health System.
Cedars-Sinai, the largest acute-care hospital in California, hopes to make the system live within the next six months. Cedars-Sinai and Dworkin have received a patent on the idea.
“Rather than have to report to a patient I’m sorry this happened, wouldn’t it be better if we had real-time tools that asked you, ‘Are you sure you want to do this?’ Maybe sometimes that gentle reminder can stop something before it happens,” Dworkin said.
One day, Dworkin said, such technology could become routine in health care — and organizations could be fined for not using it. “I can see a time when this stuff becomes the standard operating procedure,” he said. “I hope it does.”
NPR reporter Alison Kodjak contributed to this report.
This story is part of a yearlong examination into how secure medical privacy is. Has your medical privacy been compromised? Help ProPublica investigate by filling out a short questionnaire. You can also read other stories in our Policing Patient Privacy series.
Snooping on celebrities has been a bane for health systems around the country for years. The proliferation of electronic medical records systems has made it easier to track and punish those who peek in records they have no legitimate reason to access.
Below is a partial list of high-profile breaches and the consequences that accompanied them, compiled from news reports.
Image may be NSFW. Clik here to view. (Jason LaVeris/FilmMagic)
October 2007: Palisades Medical Center in New Jersey suspended 27 workers without pay for a month for looking at the medical records of actor George Clooney, who had been treated there the prior month after a motorcycle accident.
Britney Spears
Image may be NSFW. Clik here to view. (Jason LaVeris)
March 2008: UCLA Medical Center took steps to fire at least 13 employees and suspended at least six others for snooping in the medical records of pop star Britney Spears during her hospitalization in its psychiatric unit. In addition, six physicians faced discipline.
Richard Collier
Image may be NSFW. Clik here to view. (Getty)
November 2008: Jacksonville Medical Center in Florida fired 20 workers for looking at the records of Richard Collier, then an offensive tackle for the Jacksonville Jaguars, who was paralyzed in a shooting.
Nadya Suleman, who gave birth to octuplets
Image may be NSFW. Clik here to view. (Jeff Fusco/Getty)
March 2009: Kaiser Permanente revealed that 21 employees and two doctors inappropriately accessed the medical records of Nadya Suleman, who gave birth to octuplets at its Bellflower, California, hospital. Of those workers, 15 were either terminated or resigned under pressure and eight faced other disciplinary actions. In May 2009, the California Department of Public Health fined the hospital $250,000 for failing to protect Suleman’s records.
TV anchorwoman Anne Pressly
October 2009: An Arkansas doctor and two former workers at St. Vincent Medical Center were sentenced to probation and fined after pleading guilty to federal misdemeanor charges that they illegally accessed the records of a Little Rock television news anchorwoman who died in 2008 after being attacked at her home during a robbery.
Michael Jackson
Image may be NSFW. Clik here to view. (Dave Hogan/Getty)
June 2010: Ronald Reagan UCLA Medical Center was fined $95,000 by the California Department of Public Health for failing to stop employees from accessing singer Michael Jackson’s records. Two hospital workers and two contract employees were terminated.
Gabrielle Giffords
Image may be NSFW. Clik here to view. (Joshua Lott/Getty)
January 2011: University Medical Center in Tucson fired three employees for snooping in records after the shooting that left then-U.S. Rep. Gabrielle Giffords in critical condition. A contract nurse also was terminated.
Unnamed celebrity patients
July 2011: UCLA Health System agreed to pay $865,000 to the federal government to resolve allegations that its employees violated federal patient privacy laws by snooping in the medical records of two celebrity patients. Separately, in January 2010, a former UCLA employee pleaded guilty to four counts of illegally reading medical records, mostly from celebrities and other high-profile patients, and was sentenced to four months in federal prison.
A patient fatally shot in a hospital ICU
October 2012: Akron General Medical Center in Ohio fired a “small number of employees” for looking at the medical records of a woman whose husband fatally shot her in the hospital’s intensive-care unit.
Kim Kardashian
Image may be NSFW. Clik here to view. (Jason Merritt/Getty for LACMA)
July 2013: Five workers and a student research assistant were fired for inappropriately accessing records at Cedars-Sinai Medical Center in Los Angeles. One of those was reportedly reality TV star Kim Kardashian, who gave birth to her daughter at the hospital the prior month.
A U.S. missionary doctor with Ebola
September 2014: Nebraska Medical Center in Omaha fired two workers for looking in the records of Dr. Rick Sacra, who had been treated at the hospital for the Ebola virus he contracted while volunteering in Africa.
The mother of a 5-year-old who died
August 2015: Carilion Clinic in Roanoke, Virginia, fired or disciplined 14 workers for peeking at a patient’s medical records in a high-profile case. The patient was reportedly the mother of a five-year-old boy who was found dead in a septic tank near his home.
While evidence of abuse of the disabled has piled up for decades, one for-profit company has used its deep pockets and influence to bully weak regulators and evade accountability
Three years ago, it looked like the Florida agency that oversees care for children and adults with disabilities had finally had enough.
It filed a legal complaint that outlined horrific abuse at Carlton Palms, a rambling campus of group homes and classrooms near the small town of Mount Dora.
A man called “R.G.” was punched in the stomach, kicked and told “shut your fucking mouth,” the complaint said. “R.T.” was left with a face full of bruises after a worker hit him with a belt wrapped around his fist. A child, “D.K.,” who refused to lie face down so he could be restrained, was kicked in the face and choked until, eyes bulging, he nearly passed out.
State officials wanted to bar Carlton Palms from accepting new residents for a year.
“[A] moratorium on admissions,” wrote a lawyer with the Agency for Persons with Disabilities, “is necessary to protect the public interest and to prevent the continuance of conditions that threaten the health, safety and welfare of Carlton Palm’s (sic) residents.”
Two months later, the state backed down.
Carlton Palms’ owner, the for-profit company AdvoServ, had deployed a Tallahassee lawyer and lobbyist who counted a former governor among his clients. The company admitted no wrongdoing and paid no fines when it settled with the state. It did agree to install more cameras to monitor workers.
The state of Florida — and its public schools — then went right back to sending Carlton Palms new clients.
AdvoServ’s homes and tens of thousands of facilities like them were supposed to be an antidote to the ills of institutional care for society’s most vulnerable: children and adults with profound disabilities like severe autism. Tucked away in neighborhoods across the country, the homes are often a last resort for overwhelmed families and schools, as well as state officials who shuttered their public asylums over concerns about mistreatment.
But the sprawling system of privately run residential programs is quietly — and with few repercussions — amassing a record as grim as the institutions it replaced, a ProPublica investigation found.
Particularly haunting are the deaths of children in residential facilities, often far from their homes. At least 145 kids have died from avoidable causes in such facilities over the last three decades, a ProPublica review of news accounts found.
In one group home, a worker strangled a teenaged resident during a struggle; at another, a boy died of an infection after employees taunted him and accused him of faking illness. Other children suffocated while workers held them down.
AdvoServ’s Carlton Palms is one of a dozen residential programs nationwide where two or more children have died in separate incidents from potentially preventable causes. Most recently, a 14-year-old girl died there after a night during which she was tied to a bed and chair. She’d entered the program just six months after the state dropped its call for a year-long moratorium.
Paige Lunsford, 14, died at AdvoServ’s Carlton Palms facility after a night in which she was tied to a bed and chair while vomiting. (Emily Michot/Miami Herald)
A deep examination of AdvoServ — a veteran industry player now owned by a private equity firm — shows how a powerful, well-financed provider can exploit a fractured system, using its deep pockets to beat back sanctions, bully regulators and shape the very rules it plays by.
The company’s ascension reveals, too, the fraught marriage of convenience that binds the growing ranks of private providers to the public agencies that rely on them, sometimes paying upwards of $350,000 a year in taxpayer money for each resident’s care.
Officials with Florida’s disabilities agency said the state sees itself as partnering with, as well as policing, Carlton Palms.
“Our approach has been very, very aggressive in working with Carlton Palms,” said Tom Rankin, a top official with the agency. “It’s also been very, very collaborative.”
State and federal officials often give operators like AdvoServ wide latitude on key decisions such as figuring out how to control unruly patients, meet medical needs and staff homes. When problems occur, the limits of regulators’ power can become starkly clear.
One infamous program for instance, the Judge Rotenberg Educational Center outside Boston, has been condemned for its use of electric shocks to halt residents’ undesirable behaviors. At least two states tried and couldn’t get Rotenberg to stop. The facility continues to receive more than $60 million a year in mostly public money to care for 240 people with developmental, intellectual or emotional disabilities.
Calls for federal action have failed. A bill first introduced in 2008 would have required the federal government track abuse complaints and create a website listing residential providers for kids nationwide. It has gone nowhere.
Even some in the industry say more oversight is needed. “We definitely support regulation because bad things have happened to kids in residential programs, and not just 10 years ago,” said Kari Sisson, executive director of the American Association of Children’s Residential Centers, which promotes best practices. “They happen to kids today.”
Florida’s aborted effort to sanction AdvoServ surprised few who knew of its nearly five decades of dealings with regulators. The company cares for roughly 700 people with intellectual and developmental disabilities and behavioral problems in Delaware, where it is headquartered, as well as New Jersey and Florida.
“I always got the feeling they were pretty untouchable,” said Kevin Huckshorn, a national behavioral health consultant.
AdvoServ executives say there is no pattern of abuse in its facilities and that employees who mistreat residents are disciplined. “In a program like ours in which we serve individuals with significantly challenging behaviors, incidents are going to be inevitable,” said Robert Bacon, the company’s chief operating officer and a 29-year AdvoServ veteran.
“We acknowledge we are not perfect,” CEO Kelly McCrann told ProPublica. “But what we do does not allow perfection.”
In a written statement, top officials at AdvoServ also said they are proud of the company’s record and that they “responsibly” address problems when they arise. AdvoServ supports strong oversight and clear standards, the statement said, “because they help us deliver the highest quality care.” (Read the full statement.)
The parents of five teenagers and adults living at AdvoServ homes praised the company, which provided ProPublica their contact information.
“We have had nothing but unbelievably good experiences with Carlton Palms,” said Ginny Robinson of Kennesaw, Georgia, whose son Jonathan has an intellectual disability and can have violent tantrums. He first entered the program 19 years ago. “I truly believe had we not found them he would be either in jail or dead.”
But a more troubling picture emerges from thousands of pages of public records reviewed by ProPublica, as well as from the accounts of current or former residents laid out in lawsuits and in interviews with relatives. Many complaints have centered around the company’s aggressive use of mechanical restraints, such as leather cuffs, chairs with straps, and a “wrap mat” akin to a full-body straight-jacket. Such tactics, records show, have resulted in broken arms, collarbones and jaws, knocked-out teeth and cuts needing stitches.
In late June 2013, Carlton Palms’ staff members assured Paige Lunsford’s parents in emails that their daughter, a waifish girl with brown eyes, “was having a nice day in class today” — even though she had begun vomiting and clashing with staff just days after arriving. Lunsford had autism, was bipolar and schizophrenic, and couldn’t speak. She struggled with compulsions to bite her skin or bang her head. Workers tied her down when she ran from them, threw things or tried to hurt herself.
A Carlton Palms doctor saw her but, despite her worsening condition, chose not to send her to the hospital. The next morning a 911 call brought medics to Lunsford’s bedroom, where they found her dead of dehydration brought on by her stomach illness.
The sole concession Florida regulators wrung out of AdvoServ after dropping the admissions moratorium — that the company improve video monitoring — did little to bring about accountability.
When detectives went to examine video from cameras where Lunsford lived, they discovered all but an hour or so was gone. Company officials said the footage was mistakenly erased.
In recent decades, states have largely outsourced the day-to-day care of people with developmental and intellectual disabilities. Group homes are now overwhelmingly run by private organizations, and while nonprofits rule the sector, for-profit investors have increasingly taken interest. AdvoServ founder Kenneth Mazik was at their vanguard.
Mazik opened the Au Clair School for autistic children in 1969 in a stern-looking 28-room mansion in Bear, Delaware. A broad-shouldered University of Delaware graduate who had worked at a state institution, he said a particularly gruesome encounter had inspired him: A boy he was counseling had pulled out his own eye. “So, following my usual pattern, I overcompensated,” he told a reporter at the time. “I threw myself into autism - which was what was wrong with the boy.”
He took in castaways — his first patients were teenage boys who had been kicked out of another program — and Au Clair soon had 30 children. It received national attention in the early 1970s when “Silk Stockings,” a racehorse owned by Mazik and his then-wife, started winning harness-style races, infusing the school with prize money. The media loved the tale of how the horse saved the little school for autistics.
AdvoServ started out nearly five decades ago in a 28-room mansion in Bear, Delaware, in 1969 as the Au Clair School for children with severe autism. (Melissa Steele/The Cape Gazette)
Another source of cash for Au Clair appeared when Congress mandated in 1975 that public schools take responsibility for educating all children with disabilities. Local classrooms still sometimes couldn’t handle children with the most serious impairments, so families implored local officials to pay tuition for special private schools. Mazik’s Au Clair, and schools like it, took the cases no one else would.
But signs of trouble began soon after the glow from Silk Stockings’ wins faded, when former workers said they had witnessed children being beaten at Au Clair as part of their treatment.
Articles in the Wilmington News-Journal in 1979 described children hit with plastic bats and dunked in a dirty swimming pool. Mazik himself, the newspaper said, had repeatedly whipped a 16-year-old boy with an intellectual disability across his backside with a riding crop.
Mazik acknowledged in the story that he had struck the boy, but said it didn’t constitute abuse. The employees who complained were disgruntled, he said.
Delaware officials considered shutting down the school, but instead chose to work with it to improve conditions.
The company continued to grow, opening a second Au Clair in 1987 in Florida, northwest of Orlando. That school — later rechristened Carlton Palms — took root on the isolated lakeside campus of a former retirement community, tucked between orange groves.
The company had told local officials the school would house 20 to 30 children, ages seven to 18. But within three years, it had grown to 48 students coming from 28 states.
Keeping large numbers of disabled children under one roof was exactly the model the country was moving away from. The goal was to replace big institutions with a network of community-based homes.
But in Florida, a lobbyist for the company urged legislators to carve out an exception for “transitional” programs with tiered levels of care and more people living together than was typically allowed. The change — which only benefited Au Clair — also later helped justify higher rates of pay from the state than what other programs received.
By 1997, Au Clair had changed its name to AdvoServ and expanded to about 130 children at schools in Delaware and Florida. That year, it faced two crises.
On April 2, Mazik telephoned relatives of a 14-year-old student to tell them the boy had died of an apparent seizure at Carlton Palms.
A caller to the state’s abuse hotline a few months later reported that the boy, Jon Henley, hadn’t received immediate medical care for the seizure, and that staff had neglected him.
Investigators from the county sheriff’s office and state Department of Children and Families discovered a roommate had told staff that Henley was shaking their bunk bed early that morning, but workers had done nothing to help him. One staffer said she just told the boy — who was face down — to be quiet because she thought he was masturbating. Workers were supposed to check on his wellbeing every 15 minutes all night. But he was found dead at wake-up time, 7:30 a.m., still face down.
Henley had autism and took medication to prevent convulsions. But an autopsy found it present in his blood at levels far below the “therapeutic range” typically needed to control seizures.
Ultimately, despite signs of potential lapses in care, the sheriff’s office did not file criminal charges and state investigators closed their inquiry with no finding of mistreatment. The facility faced no repercussions.
Henley, a joyful child whose loved ones called him “Prince Jon Jon,” had gone to Carlton Palms because his St. Thomas, Virgin Islands, school district wasn’t equipped to teach him. “If they had the accommodations on the island for him we would have never sent him there,” his aunt Laurice Simmonds-Wilson recalled.
When he died, she said, Carlton Palms officials said the company would pay for a casket and arrange to return his body to St. Thomas.
Family members only recently learned through ProPublica’s inquiries about the state investigation and allegations that Henley had not received proper care. The family didn’t even know an autopsy was conducted. “We feel we were lied to and fooled for all of these years,” Simmonds-Wilson said. “Jon Jon deserved justice. Period.”
Jon Henley, 14, died of an apparent seizure overnight at Carlton Palms in 1997 after a worker simply told him to quiet down. Courtesy of Laurice Simmonds-Wilson
A former staffer said Carlton Palms administrators had offered little information about what happened to the well-liked student, even to workers. “I was confused,” said Susan Knoll, who was a behavior analyst there at the time. “They didn’t tell us, which seemed strange.”
AdvoServ officials, in a statement, said Carlton Palms cooperated with the investigations, which found no wrongdoing, and that “[w]hen incidents like this occur, we responsibly address them.”
Just a month after Henley’s death, the next crisis hit: The New York Times published a scathingstory on Mazik’s schools and his influence on federal welfare reform.
The story — which didn’t mention Henley’s death — revealed New York inspectors had once discovered children at the Delaware Au Clair school living in trailers that smelled of urine and feces. One weeping deaf boy, the story said, had been confined for hours in a wrap mat that had cut off his circulation.
“I cried all the way back on Amtrak,” a New York official told the Times.
The story also detailed how Mazik had maneuvered to dip into a stream of foster care funding by urging federal lawmakers to strike the word “non-profit” from a section of the 1996 welfare reform legislation signed by Bill Clinton.
Mazik quickly sent a letter to Delaware officials blasting the story. “Because of your involvement,” he wrote a top licensing official, “I want to provide you with some facts to help alleviate any discomfort you may feel as a result of the Times piece.”
But any worries Mazik might have had proved unfounded. The company experienced no major fallout and proceeded with plans to enter a new market. AdvoServ would soon become the largest provider of group homes for developmentally disabled adults in New Jersey.
Mazik’s circumstances seemed to reflect the company’s growing prosperity. He kept homes in Delaware and Florida, shuttling between them in his private plane. He collected fine art, cigars and wine and increased his real estate holdings. He also developed other business ventures, launching a video surveillance company that supplied his group homes and schools.
AdvoServ’s expanding portfolio of programs routinely used mechanical restraints, such as the wrap mat or cuffs — which other operators were abandoning — to manage agitated residents. The company battled fiercely to fend off any limits on such measures.
In 2003, New Jersey lawmakers introduced a state bill to curtail restraints in residential programs, particularly those serving people with developmental disabilities or brain injuries. The measure was inspired by Matthew Goodman, a 14 -year -old who had died of pneumonia after being repeatedly restrained while living at another operator’s group home.
At an assembly committee hearing on the bill, then-AdvoServ CEO Judith Favell passionately defended the tactics. “I believe that restraints should be used to assist in decreasing a behavior problem,” she said. “In my experience, the abuses involved in restraint are, indeed, rare.”
Favell also met with the committee’s chairwoman, Democrat Loretta Weinberg. Two weeks later, one of Mazik’s companies donated $2,200 to Weinberg’s campaign. Mazik gave another $25,000 to the state Democratic Party’s senate political action committee — the first installment of nearly $125,000 he would give the party over the next four years.
Weinberg’s assembly committee went on to pass a weakened version of the measure with fewer limits, and a restraint bill did not gain traction in the state senate.
Weinberg, now a state senator, told ProPublica she agreed to the compromise bill not because of AdvoServ, but because she didn’t think stronger legislation could pass and had heard from parents who supported restraints. “I have never in my 20-some years in public life sold a vote,” she said.
In the end, the company got its way: The effort at reform fizzled.
A few years later, the restraint issue resurfaced — this time on the national level. In 2009, Congressional lawmakers introduced the first of what would become a series ofbills to restrict the use of restraints on public school children.
AdvoServ pushed back, using heavyweights such as former HealthSouth lobbyist Eric Hanson — who was later joined by former Congressman Jerry Weller. The company has paid the lobbyists’ firm nearly $1 million over the past decade.
The legislation was reintroduced repeatedly but stalled, never achieving significant Republican support.
Two opponents of the restrictions were the most vocal, a former Senate staffer said: One was the controversial Rotenberg Center. The other was AdvoServ.
AdvoServ has proven as adept at working over the state agencies that deliver it clients — and the millions of dollars that follow them — as it has the political process. The company’s relentless advocacy in Delaware kept a stream of residents flowing to its facilities even after two sets of regulators raised alarms about children hurt in its care.
In 2011, Delaware’s agency for foster care and children’s mental health took a bold step: It decided to stop sending kids to AdvoServ.
The Wrap Mat
Nearly every day at AdvoServ, residents are strapped into mechanical restraints, which were considered so inhumane that the United Kingdom banned them in asylums in the 1800s. They have also been mostly abandoned in the U.S.
Image may be NSFW. Clik here to view.
Workers force a person trying to hurt themselves or others to lie down.
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Workers force a person trying to hurt themselves or others to lie down.
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Workers force a person trying to hurt themselves or others to lie down.
Image may be NSFW. Clik here to view.
They tie down the person's wrists and ankles with straps.
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They tie down the person's wrists and ankles with straps.
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They tie down the person's wrists and ankles with straps.
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They fold big flaps across the person’s body.
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They fold big flaps across the person’s body.
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They fold big flaps across the person’s body.
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They use seatbelt-like straps to close the mat, and turn on a fan so the person won’t asphyxiate.
Credit: Hiram Henriquez for ProPublica
Agency officials objected to mechanical restraints and thought kids were staying too long in what should have been short-term placements. AdvoServ had also resisted even telling regulators about all restraints — a move that one official in an email called an effort “to prevent any oversight of their practice.”
AdvoServ leaders responded to the agency’s decision with “intense outreach,” emailsshow, urging it to reconsider and promising the company was making improvements. But state workers saw no such improvements.
“I have checked with others here in the Kids Department, who have been on site there in recent months,” wrote Vicky Kelly, director of the agency’s family services division, in 2012, “and they don’t report evidence of these changes.”
Even the state psychiatric center for adults was cutting back on restraints at federal officials’ insistence. But AdvoServ was “unbending” in its commitment to them, another of Kelly’s emails from that year said. “So the state is in a precarious position right now,” she wrote, “in agreeing that restraint is prohibited for adults, yet still allowed for youth with serious disabilities.”
As foster care officials continued to avoid placing kids with AdvoServ, Delaware lawmakers took up a bill to prohibit using mechanical restraints on public school students and limit holds with bare hands.
That posed a problem for AdvoServ because Delaware public schools referred more children to the company’s homes than the state’s child welfare agency did, sending about 20 boarding students and 10 day students a year. Each student brought in substantial revenue: Six-figure bills are typical and, for one AdvoServ student, the state and local agencies paid a combined $383,000 per year.
AdvoServ — whose Delaware lobbying firm was led by prominent former state Rep. Bob Byrd — pushed for a loophole in the restraint measure involving schoolchildren: The company wanted providers to be able to seek waivers if they thought mechanical restraints were needed for a particularly challenging resident.
A state lawmaker told an education official that because of AdvoServ’s intervention, the bill would go nowhere without the waiver provision, according to state school officials and the director of the state Developmental Disabilities Council.
In June 2013, the restraint bill passed with the exception AdvoServ had sought. (It has not, to date, sought a waiver.)
Soon after it won that battle, the company faced a new one with state education officials. They, too, had objected strongly to mechanical restraints on students, which the company was phasing out. While officials hadn’t barred schools from sending kids to AdvoServ, company executives perceived a downtick in the number of schoolchildren referred to the company’s program in 2013.
AdvoServ responded by ramping up pressure on state bureaucrats.
“One of my clients represents AdvoServ,” former Delaware Controller General Russell Larson wrote in an email to top education leaders in August 2013. “I would love to meet with you to find out if there’s anything I can tell my client to help them improve their service.”
Education officials told him they were already talking with AdvoServ directly. Unsatisfied, AdvoServ brought its concerns to Gov. Jack Markell’s office two months later — threatening to leave the state if school referrals didn’t pick up, emails show.
As AdvoServ tried to muscle state leaders into line, rank-and-file staffers at Delaware’s education department expressed frustration.
“They HAVE gotten new referrals,” one education official wrote to another after learning of the company’s complaints to Markell. “I wish they would own the problems they caused for themselves and acknowledge the inordinate amount of time we have devoted to them to help them remain open!”
Amid the wrangling between the company and school officials, a rash of complaints about mistreatment in AdvoServ homes rolled in, with seven landing between November 2013 and July 2014. “It is out of control,” a state licensing official lamented to another.
In one case, an AdvoServ worker threw scalding water on a resident, causing first-degree burns. Employees, including a supervisor who had left the home to play video games with a friend, sought to cover up what happened by claiming a cup of hot water had fallen off a dresser when the resident was trying to injure herself, records show. Workers didn’t take her to a doctor right away. Instead, they popped her burn blisters and falsified an injury report.
They later told authorities what they had done was “typical” behavior at AdvoServ. The workers resigned or were fired. The company said they lacked credibility.
In another case, a Delaware worker covered a boy’s face with a folded-up pillowcase to prevent him from spitting, leaving him gasping for breath. That led to one of three citations from the state last year for improper restraints.
In August 2014, the state education department approved keeping AdvoServ on the list of places public schools could send schoolchildren for the next three years.
Education officials said last week the decision was based on improvements the company had made, as well as parents’ and school districts’ positive comments.
After the scalding incident and other problems, Delaware’s foster agency gave one AdvoServ school a “warning of probation,” an action two steps before license suspension. The agency required AdvoServ officials to hire a consultant to help it improve safety at all its Delaware facilities.
Though the agency still wasn’t referring kids there, AdvoServ met all the requirements. This past May, state licensing authorities lifted their warning.
AdvoServ was, once again, a residential school in good standing.
While AdvoServ largely succeeded in smoothing over conflicts in Delaware, it faced what looked like a greater threat in Florida: 14-year-old Paige Lunsford had died from a treatable medical condition and state investigators wanted to know why.
A tip to the state’s abuse hotline five days after Lunsford’s death on July 6, 2013, implicated Lunsford’s care at Carlton Palms, as well as workers’ use of restraints on her.
The caller said Lunsford had been in “too much restraint for longer than necessary” and that the restraints may have made her underlying medical problems worse. Records of her care, the caller said, went missing the morning after she died.
Carlton Palms hadn’t notified the agency of Lunsford’s death, though it was supposed to immediately report any incident where abuse or neglect was suspected.
Child welfare investigators and detectives descended on the remote campus to interview employees. They discovered a tangle of conflicting accounts.
Lunsford’s parents said Carlton Palms’ doctor, Dr. Robert Lynch, had initially told them she was rushed to the hospital, where she collapsed and died, state records show. Yet medics said that when they arrived at Carlton Palms, she was already dead.
Tom Shea — the center’s director — told investigators that overnight, Lunsford had rocked herself to sleep in the restraint chair and staffers carried her to her bed.
But workers said Lunsford had endured multiple mechanical restraints on her last night while vomiting as many as 25 to 30 times — “like water out of a sink,” one staffer told investigators. Workers tied her arms and legs to a bed while she lay on her back.
Then, in one of the night’s most harrowing moments, they decided to move her to a restraint chair in the hallway. They said Lunsford, down to 69 pounds, fought back so hard it took six of them to wrestle her into the chair — where she was bound in six places. They said she never slept.
Her caregivers said they sought help from the program’s top nursing and behavioral staff, but no one directed them to call an ambulance.
After a nearly eight-month investigation, state child protection officials cited Carlton Palms for medical neglect and for inadequately supervising Lunsford, singling out Lynch and head nurse Bonnie Clugston.
“[W]rongful death due to medical neglect is probable,” one state report concluded.
The state health department found Clugston, the facility’s head nurse, had violated state law by failing to get Lunsford emergency medical help. (The department has not made a similar finding for Lynch.)
In its statement, company leaders said they “fundamentally disagree” with the child protection agency’s conclusions and are awaiting the health department’s determination in Lynch’s case. AdvoServ also said it stands by Shea’s account of Lunsford’s last night and that the video deletion was accidental.
“Paige’s death was very tragic and heart-wrenching for us all, and it still hurts quite a bit,” said Bacon, AdvoServ’s chief operating officer. He declined to answer specific questions about Lunsford.
Clugston and Lynch resigned, the company said. Shea retired in the spring. Lynch did not return messages left at his office. Clugston could not be reached.
Lunsford’s parents filed a lawsuit in May 2015 against Carlton Palms and certain staff members, alleging negligent medical care.
The job of figuring out what sanctions, if any, should be levied against Carlton Palms fell to the Agency for Persons with Disabilities, the same department that had sought, then dropped, a year-long moratorium.
As before, officials there chose not to halt admissions or levy fines.
“[A]s my staff previously discussed with you, the Agency is willing to forego the imposition of administrative fines at this juncture and allow your facility to apply those resources instead to complying with the expectations outlined herein,” the agency’s director, Barbara Palmer, wrote in a letter to AdvoServ almost 10 months after Lunsford’s death.
The state required more upgrades to the facility’s video monitoring, including letting regulators call in for access to remote feeds, and an overhaul of how the program managed medical cases. Officials also mandated that the company retrain workers on restraints and that company officials meet regularly with regulators.
Three months after Palmer’s letter, as the Miami Herald prepared to publish a story about Lunsford, another alarming incident took place at Carlton Palms.
A boy broke his arm while staffers were restraining him in a wrap mat, according to state records. They didn’t take him to the hospital for five hours. He had surgery to insert pins in his upper arm, then landed back in the hospital days later with an infection after Carlton Palms workers didn’t properly care for the wound.
The Agency for Persons with Disabilities finally imposed an informal moratorium, pledging not to refer any residents to Carlton Palms.
The ban lasted five months, during which the state agency still allowed the facility to admit an out-of-state resident, according to the company.
“It is important to understand that the moratorium was not a punitive measure, it was done out of an abundance of caution to allow the agency and AdvoServ to work through any potential issues,” the company’s statement said. “We fully support the process.”
AdvoServ also paid a $10,000 penalty, the maximum allowed by law.
Today, AdvoServ appears poised for more growth. The company is expanding into Virginia.
In 2009, Mazik sold a majority share in the company to California-based GI Partners — which recently sold the company again to another private equity firm, Wellspring Capital Management in New York. AdvoServ says Mazik no longer has any ownership stake in the company.
Mazik did not respond to questions sent to him. In a letter, his lawyer said that since the 2009 sale, Mazik “has had no operational or managerial role regarding day to day operations” of the company.
Critics of Carlton Palms worry it has grown so big that regulators can’t effectively oversee it. The facility cares for nearly 30 percent of all Floridians who need such services. Finding so many beds elsewhere would be difficult.
When the Agency for Persons with Disabilities filed its complaint asking for a moratorium in 2012, it acknowledged a concern that suspending or revoking Carlton Palms’ license “could unnecessarily disrupt the lives of the existing residents.” The agency shut down two residential providers for people with similar disabilities to those at AdvoServ in the past year. But Carlton Palms dwarfs them in size and influence.
In a statement, the Agency for Persons with Disabilities objected to the idea that it is unable to properly oversee Carlton Palms. It said, however, “closure of a facility is always the Agency’s last resort … and is only done in cases where a provider is either unwilling or unable to correct identified problems.”
When AdvoServ executives gave me a tour of Carlton Palms last summer, the placid campus gave no indication of the previous year’s turmoil.
We traveled in a golf cart over wide grassy lawns past skinny palms and live oaks draped in Spanish moss, visiting tidy classrooms and silent halls in dorm-style buildings. Only about 20 of the facility’s roughly 200 residents were in view.
Company officials said the rest of their clients were at vocational assignments or off-campus trips such as to a bowling alley. About 80 residents do landscaping and janitorial work for minimum wage at sites, it turns out, that include buildings owned by Mazik’s leasing company in downtown Mount Dora.
The golf cart rolled past a chapel by a fountain, a field where residents play flag football, and a squat modular unit that serves as the administrative building. We saw teenage boys listening to a lesson about managing money, and, in another building, girls with more severe physical impairments doing crafts.
We didn’t stop at the site where Lunsford’s parents had been told Carlton Palms would plant a tree in her memory, just as it had planted one for Henley.
Meral Agish contributed research for this report. Production by Emily Martinez, Rob Weychert, and Hannah Birch.
Heather Vogell reports on schools for ProPublica. Previously, she reported on test cheating in public schools at The Atlanta Journal-Constitution. Her work resulted in indictments of the superintendent and 34 others.
About five years ago, one of the nation’s largest corporations, Tyson Foods, drew a bullseye on the official who oversaw Iowa’s system for compensating injured workers.
As workers’ compensation commissioner, Chris Godfrey acted as chief judge of the courts that decided workplace injury disputes. He had annoyed Tyson with a string of rulings that, in the company’s view, expanded what employers had to cover, putting a dent in its bottom line.
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So when Republican Terry Branstad ran for governor in 2010, vowing to make Iowa more business-friendly, Tyson hosted an event for him at its headquarters and arranged another meeting for him to hear from large companies who were frustrated with the workers’ comp commission.
Within weeks of his victory, Branstad demanded Godfrey’s resignation. When Godfrey refused, the new governor did the harshest thing in his power: He cut Godfrey’s salary by more than 30 percent.
Amid the fallout, Tyson drafted and hand-delivered 14 pages of talking points criticizing Godfrey to help Branstad defend his decision.
Godfrey quickly grasped just how much sway Tyson and other big companies can have over workers’ comp. “It’s just chilling that someone would go to that level to try to influence the system,” said Godfrey, who is now the chief judge of the federal employees’ workers’ comp appeals board.
Tyson’s tactics, pieced together from depositions and documents in a lawsuit Godfrey filed — many of which have never been released — are far from unique to the Hawkeye State. Over the past 25 years, as the Arkansas company grew to be one of the world’s largest meatpackers, Tyson has taken a lead in reshaping workers’ comp, often to the detriment of workers, a ProPublica investigation has found.
Tyson’s story also tells a broader one about American politics: How time after time, one determined company, facing a challenge to its profits, can bend government and the law to its will.
Using its economic leverage — combined with time-honored wining-and-dining and behind-the-scenes arm-twisting — Tyson has helped steer legislative changes through several states in the South and Midwest. It has urged officials, often successfully, to remove or appoint workers’ comp judges. And the company’s lawyers have crafted novel legal arguments for limiting the rights and benefits of injured workers.
Image may be NSFW. Clik here to view.Christopher Godfrey, Iowa’s former workers’ comp commissioner, at his home in Washington, D.C. He says the painting behind him reminds him of the battle he fought in his home state. (Lexey Swall for ProPublica)
Rather than advocating for benefit cuts outright, Tyson has often pushed for subtle changes, such as giving employers more say over medical care, raising workers’ burden of proof or limiting the scope of activities judges have deemed work-related.
These changes have had a comparable effect to cutting benefits, excluding people whose doctors say have legitimate work injuries — especially the costly musculoskeletal disorders like carpal tunnel syndrome that poultry workers are prone to.
Tyson declined to make company officials available for interviews. In response to written questions, the company denied its involvement in workers’ comp was out of the ordinary.
“Like other major companies,” Tyson wrote in an email, “it’s important for us to monitor state regulations that affect how we make sure workers hurt on the job get the care and benefits they deserve.”
Tyson, which supplies chicken, beef and pork to supermarkets and fast-food restaurants like McDonald’s around the world, employs about 113,000 workers at more than 400 facilities and offices.
With job titles that describe a worker’s place in the processing chain, like “live hang” and “throwing jowls,” meat plants like Tyson’s pose an array of risks. Workers face everything from crippling hand injuries from repetitive cutting motions to catastrophic amputations in grotesquely named machines like fat suckers and neck breakers.
Curbing the expense of such injuries is important to Tyson, whose former chairman Don Tyson developed a storied cost-cutting reputation as he built his father’s company into an empire. The company spends about $105 million on workers’ comp every year, according to court documents, making it among the top corporate payers. It’s an amount equal to more than 10 percent, and sometimes nearly 20 percent, of the company’s annual profits.
Over the past year, ProPublica and NPR have examined how many states have been quietly dismantling their workers’ comp systems, leading to cataclysmic consequences for injured workers. The cutbacks, often driven by business, have landed workers on public assistance and forced them to fight insurers for medical care their doctors recommended.
Every state has its own history and politics. Businesses large and small complain about the cost of workers’ comp. Unions lobby to increase benefits and doctors fight cuts in medical fees. Bo Pilgrim, the founder of rival chicken giant Pilgrim’s Pride, once handed out $10,000 checks on the floor of the Texas Senate during a debate over a workers’ comp bill. Even in Iowa, Tyson was far from the only business bending the governor’s ear.
But unlike most companies, Tyson has asserted an unusually high level of control over its workplace-injury program, giving it a nitty-gritty perspective on issues other employers leave to insurance companies.
Tyson self-insures, meaning it pays nearly all of its claims from its own pocket. When workers are injured, they’re usually sent to a Tyson nurse at the plant. Their claims are processed by Tyson adjusters. And in many states, the company even has its own managed-care unit, handpicking the doctors that workers can see and advising those doctors on light-duty jobs injured employees might be able do.
Tyson said the system allows it to provide better medical care for its workers and help them get back on the job.
Worker advocates say Tyson’s approach allows it to deny workers necessary medical care and force them back to dangerous jobs before they’re ready.
A look back on the past quarter-century reveals that Tyson has influenced workers’ comp much in the same way it reshaped the poultry industry, famously steering every step of production from the breeding of the birds to the Chicken McNugget.
The Playbook
The seeds of the workers’ comp laws being pushed today — when insurance companies’ profits are at historic highs and employers’ costs at modern-day lows — were sown during a legitimate crisis in the late 1980s.
A growing recognition of occupational diseases and repetitive trauma had expanded the types of injuries companies had to cover. Medical costs were rising and insurers had undercut themselves competing for business. Insurance companies went bankrupt, and some carriers bailed on unprofitable states. In some, average insurance rates had doubled, while in others, employers were paying an average of $6 for every $100 they spent on wages — more than three times what they pay today.
A Decline in Carpal Tunnel?
Carpal tunnel syndrome emerged as a major workplace safety issue in the late 1980s, especially at animal processing plants. Meat and poultry cutters experienced carpal tunnel at 10 times the rate of all workers in 2013, according to federal labor statistics.
Tyson Foods and other similar employers have pushed for changes to state workers’ comp systems that have made it harder for workers who suffer such injuries to receive payments. There’s an ongoing dispute between industry and health researchers over whether such injuries have been reduced or are simply not being reported.
Tyson said it has invested in safety improvements and innovative ergonomics programs to stem such injuries. Its reported injury rate has fallen more than 40 percent from 2002 to 2013.
“We attribute the decreases to our continued efforts to do better in workplace safety,” the company said in a statement. “We care about our employees — we call them ‘Team Members’ — and don’t want anyone hurt on the job.”
But over the years, health researchers, labor advocates and even federal prosecutors have raised doubts about Tyson’s safety record, noting that multiple factors could be driving the decline, including changes in workers’ comp laws, widespread underreporting in the industry, and increased reliance on immigrant workers who are less likely to know their legal rights. Tyson has heavily recruited such workers, who now come from countries as disparate as Bosnia, Guatemala, Burma and Somalia.
Despite safety improvements, federal health researchers have repeatedly found high rates of hand and wrist injuries among poultry processing workers. Duke University epidemiologist Hester Lipscomb studied Perdue plants in North Carolina in the mid–2000s and noted that the prevalence of musculoskeletal disorders looked almost exactly the same as it did in 1990.
There is growing evidence that difficulties with workers’ comp might be a factor. In a study of carpenters in Washington State, published in May, Lipscomb found that from 1989 to 2008 claims for musculoskeletal disorders had shifted from workers’ comp to private health insurance.
“In the poultry industry,” she said, “I think it’s even worse.”
In 1993, Tyson’s home state of Arkansas became one of the first to overhaul its workers’ comp system after rates rose 60 percent from 1986 to 1992.
By then, the company founded during the Great Depression had become America’s largest poultry processor, as well as Arkansas’ biggest employer and political contributor.
Tyson and the state chamber of commerce pushed lawmakers hard for a package of reforms to cut employers’ costs. Until then, business and labor had always negotiated changes to the workers’ comp law, often with Tyson serving as a management representative.
But this time, the chamber bypassed a labor-management committee set up by the governor and drove a bill over the objections of the state AFL-CIO.
“The business community in particular and people in general were concerned about the rising rates,” said former state Rep. Mike Wilson, who sponsored the bill. “Tyson as a large employer with people who had a lot of workplace injuries or were exposed to dangerous conditions, they had a large interest in workers’ comp.”
The new law drastically changed rules considered part of the bedrock of the system.
It narrowed the list of injuries that were considered work-related, raised the bar for workers to prove their jobs caused their injuries, required more objective medical evidence, gave employers and insurers more control over workers’ medical care and made it harder for workers to qualify as permanently disabled.
Labor leaders decried the new law. “Congratulations to business and industry; let them enjoy their bloody victory,” said state AFL-CIO president J. Bill Becker. “God help the widows, orphans and injured workers of Arkansas!”
A national insurance ratings bureau estimated at the time that the law cut benefits for the most severely disabled workers by 20 percent and medical and lost wage benefits for all workers by more than 10 percent.
While other states such as Oregon had adopted some of the provisions before, Arkansas’ package provided a comprehensive playbook for other states to follow.
But even some on the employers’ side worried that legitimate injuries would go uncovered. Summing up the consequences in a law review article, John Copeland, a business defense lawyer and University of Arkansas professor, said the law left him with an “uneasy feeling.”
“There is no question,” wrote Copeland, who later went to work for Tyson, “that the new act severely curtails and even eliminates many workers’ compensation claims.”
The law didn’t specifically eliminate repetitive stress injuries like carpal tunnel, which were becoming an epidemic in the early 1990s. But some critics say it effectively accomplished the same thing by making it tougher for workers to qualify.
“That was really the thing that was costing Tyson,” said Laura McKinnon, an attorney who represented workers opposing the bill. “That’s why Tyson got so involved back then because they were having so much trouble with carpal tunnel at the time.”
Tyson said, “The purpose of the reform act was to streamline workers’ compensation.”
The Oracle of Workers’ Comp
Following its success in Arkansas, Tyson took its involvement with workers’ comp to another level. The company formed a subsidiary to specialize in workers’ comp managed care and sold the system to other companies.
And to help direct its efforts, Tyson hired Allyn Tatum, an Arkansas workers’ comp commissioner who had drafted many of the 1993 law’s provisions and had recruited and guided the business representatives who hammered out the final version, according to multiple people involved in the effort.
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“He was the most powerful workers’ comp commissioner in the country,” said Michael Clingman, CEO of Arkansas’ comp commission in the mid–1990s. “He was hired because he knew commissioners in all the states.”
Tyson and Tatum pressed for regulations that would make it mandatory for companies to contract with managed-care organizations — like the one Tyson had formed. But Arkansas employers opposed the requirement, and the commission made managed care voluntary.
Despite the setback, Tyson continued to hold sway over the workers’ comp commission, especially when it came to the judges charged with interpreting the new law.
In 1997, Wilson, the lawmaker who sponsored the workers’ comp bill, was appointed as the management representative on the commission, which decides appeals. The business community, he recalled, “went to the governor and said ‘Here’s our boy,’ and the governor said ‘You’re it.’ ” A few months later, a Tyson employee and former Walmart lawyer named Max Koonce was hired as a workers’ comp judge.
With business-friendly representatives on board, Tyson and other employers took aim at the ones they believed weren’t interpreting the law correctly.
The final paragraph of the new workers’ comp act had delivered a warning to judges: The changes were necessary because courts had “broadened the scope and eroded the purpose” of workers’ comp, it said. To ensure judges got the message, the chamber of commerce sent them a memo noting that it would not only be watching but asking to be copied on any decision addressing the new law.
In 1998, a judge named Eileen Harrison was fired following a pattern of business pressure similar to what Godfrey faced in Iowa, according to depositions obtained by ProPublica in a lawsuit she filed.
Earlier that year, Tatum, Walmart lobbyist Stephen Carter and others had complained to Arkansas Gov. Mike Huckabee’s staff and appointees that commission decisions were “eroding” the new law and hurting business.
In one meeting described in a deposition in Harrison’s lawsuit, Carter said he pointed his finger at the commission’s chairman and demanded he resign. The business community was concerned about some administrative law judges as well, he said, and wanted Harrison terminated. In an interview, Carter, now in private practice, said his concerns “had nothing to do with anything other than her performance.”
As complaints mounted, Tatum requested his own meeting with Huckabee’s chief of staff, according to testimony and exhibits in the case. Shortly after, the chief of staff sent word to the commission that it was time for Harrison to go. Harrison ultimately obtained a settlement from the state, but the forces behind her departure weren’t lost on the judges who remained.
“We were already feeling the pressure,” recalled C. Michael White, an administrative law judge at the time. “Now we had proof of what would happen if we didn’t decide cases in favor of employers.”
Over the years, Tatum became the business community’s go-to workers’ comp guru, speaking at conferences across the country and advising employers how to craft workers’ comp provisions and make their voices heard. He is now retired, but still has a phone line and email at Tyson, and is listed as a Tyson representative on national workers’ comp boards.
Tatum originally agreed to meet with a ProPublica reporter in Arkansas. But he later declined, sending a text message that said, “from what I hear, you already have lots of folks to talk to, and I’m sure they will tell you the story you want to hear.”
Those who have taken on Tatum describe him as daunting.
“He’s one of the more dangerous characters in workers’ comp in my view,” said Jim Ellenberger, a longtime AFL-CIO workers’ comp expert who often debated Tatum. “Paying a worker any sum of money for any injury is going to get his ire up. That tells you something about how serious that issue is for that company.”
‘It’s Almost Like They Wrote the Law’
As Tyson and other companies have assumed more control over workers’ comp, injured workers say they’ve faced the consequences.
Billy Shawn Walkup was working at a Tyson bacon factory in Vernon, Texas, in 2011 when he slipped walking down wet stairs and hurt his back.
About two weeks later, Walkup said, a Tyson employee handed him a form waiving his right to sue. If he didn’t sign it, the employee said, his medical care would end and he’d have to go back to full duty within two months.
“When I have a wife and a 4-year-old son at home — at the time, he was 2 — what am I supposed to do?” Walkup said recently. “I didn’t know what was fixin’ to happen. I was scared. I was afraid of losing my job.”
Image may be NSFW. Clik here to view.Image may be NSFW. Clik here to view.Billy Shawn Walkup plays with his son, Chase, at their home in Quanah, Texas. Unable to afford surgery, Walkup now gets around with a cane or a motorized wheelchair. (Dylan Hollingsworth for ProPublica)
Walkup signed the waiver, and the doctor sent him back to work with restrictions. But struggling with pain from the injury, Walkup missed too many days and was fired a few months later.
Tyson continued paying Walkup’s medical care for another year under its benefit plan. But after a spine surgeon, whom Tyson approved, determined that Walkup had multiple disc protrusions in his back and numbness in his legs that caused him to occasionally collapse, Tyson sent him for an independent medical exam.
That orthopedic surgeon was 77 years old and had previously been disciplined by the Texas Medical Board for failing to document a physical examination. According to his report, the doctor spent 35 minutes examining Walkup and reviewing his extensive medical records before concluding that he’d merely suffered a strain. No further medical care was necessary, said the doctor, who didn’t return calls for comment.
Tyson terminated Walkup’s benefits.
“If it hadn’t been for my father-in-law bailing us out time after time, we would have lost our house,” said Walkup, who was 35 when the injury happened. “The bank called us and they were fixin’ to foreclose on our house. They repo’d my wife’s car. They repo’d my pickup.”
Tyson declined to discuss Walkup’s case but said it wants to make sure workers receive “the medical care they need and the compensation they deserve.”
One of the biggest trends in workers’ comp over the past 25 years has been the increased ownership of risk by employers who either self-insure, paying claims themselves, or buy high-deductible insurance plans that require them to cover the cost of injuries up to a certain amount. Nationwide, employers now pay as much in benefits out of their own pockets as private insurance companies do, according to the National Academy of Social Insurance.
And they have sought a much greater say over what they have to pay for. Few companies have been more active than Tyson, which is on the executive committee of the National Council of Self-Insurers and on the boards or in leadership positions of similar groups in Alabama, Arkansas, Iowa, Missouri, North Carolina, Tennessee and Texas.
Tyson was one of the first companies to self-insure in Texas in 1993, and the following year, it lobbied the state to let it process its own claims, rather than hiring at outside firm.
As it sought permission for this approach, Tyson dangled the possibility of a $60 million poultry processing plant in East Texas, according to the Wall Street Journal. The state made the change. Tyson never built the plant, though it did open a meat plant in another part of Texas a decade later.
And despite the change, Tyson eventually dropped out of the workers’ comp system, taking advantage of another Texas law that gave it yet more control. Instead, Tyson created its own benefit plan, exempt from state oversight, to handle injured employees like Walkup.
It can be beneficial for companies to hold such power and financial responsibility over workers’ comp, industry experts say. Being more involved in claims forces companies to become more aware of, and fix, unsafe conditions, they say. It also allows them to find doctors who understand their workplaces and what alternative assignments may be available.
But as Walkup learned, this approach can also have negative consequences. When employers have more control over medical care, worker advocates say, they may choose doctors who see things the company’s way, giving them cover to get rid of undesirable employees and expensive claims.
“They have it set up where they pay for what they want to,” Walkup said.
In August, Walkup was approved for Social Security disability. He hopes to get surgery. But for now, he gets around using a cane and a motorized wheelchair.
After being cut off, Walkup sued Tyson. But the judge quickly dismissed it because of the waiver Walkup signed.
Walkup’s attorney Eric Marye said it was stunning how the company’s waiver process followed “the letter of the law to a T.”
“It’s almost like they wrote the law,” he said.
Image may be NSFW. Clik here to view.“If it hadn’t been for my father-in-law bailing us out time after time, we would have lost our house,” said Walkup, who qualified for Social Security disability in August. (Dylan Hollingsworth for ProPublica)
In fact, Tyson and other meatpackers were heavily involved in pushing post-injury waivers. Tyson said removing the threat of lawsuits allows them to offer better benefits.
Texas lawmakers tried to ban the practice. But a deal was struck in 2005, allowing waivers so long as workers had 10 days to see a doctor and decide whether to sue or accept the company’s benefit plan.
Around this time, Tyson was working on another front to limit injured workers’ rights by testing a new legal theory that undocumented immigrants who got injured on the job weren’t entitled to compensation for lost earnings.
The theory arose out of a 2002 U.S. Supreme Court decision involving undocumented workers who were laid off for supporting a union drive. At the time, Tyson was appealing a Texas case involving Gustavo Tovar Guzman, a chicken catcher who suffered a spinal injury when was hit by a forklift while trying to round up birds for slaughter.
The company eventually lost, but its bold strategy helped set the stage for more than a decade of similar challenges across the country.
Spreading the Gospel of Reform
Few states have seen steeper drops in workers’ comp costs than Arkansas and Texas. Pro-business lawmakers and lawyers interviewed over the past year frequently referred to the two states as models while worker advocates called them nightmares. And nowhere felt the changes more powerfully than Oklahoma.
In 1996, Oklahoma Lt. Gov. Mary Fallin, who is now governor, held a meeting at the National Cowboy Hall of Fame to kick off what became a nearly 20-year campaign to change the state’s workers’ comp law. A Tyson personnel manager handed Fallin a check for $200 to help her campaign. Reforming the Oklahoma law, he told the crowd, would save Tyson $200,000 a year.
“Tyson’s fingerprint since 1996 has been heavy on Oklahoma workers’ comp,” said Bob Burke, a longtime workers’ lawyer who has negotiated legislation.
Fallin finally fulfilled her goal in 2013. One of the most significant changes was that disputes would no longer be heard by workers’ comp courts, but by an administrative commission modeled after Arkansas.
And to tell the state how to build one, the authors brought in Tatum from Tyson.
Tyson was also involved in crafting Mississippi’s workers’ comp overhaul in 2012, when the state adopted many of the restrictive provisions that Arkansas had embraced in the early 1990s.
The bill limited workers’ ability to change doctors, raised the burden of proof, allowed drug tests, eliminated the legal standard that judges should view evidence in a light most favorable to workers and reduced employers’ liability when work injuries aggravated preexisting conditions.
Lawmakers had been trying to pass such provisions for 20 years, but a Republican takeover of the statehouse finally gave them traction. The House speaker’s law firm, which represents Tyson, drafted key elements of the bill with the company’s help, said Rep. Gary Chism, who co-authored the bill.
Tyson was “very instrumental in pushing this bill,” Chism said. “They picked up some pro-business Democrats for us. They had some processing plants in Mississippi and, where they were, they encouraged that representative of that district to support this workers’ comp legislation.”
As the bill was being drafted and debated, Tyson’s lobbyist treated key lawmakers to dozens of meals at steakhouses and other fine restaurants around the capital, according to expenditure reports. The six members who ultimately hammered out the final bill received 21 meals over the course of three months. The lobbyist even gave one a gift from “God Father Cigars.”
“I can remember the celebratory dinner,” Chism said. “It was more patting each other on the back. We had accomplished what we set out do.”
Tyson Goes to Iowa
Tyson’s stake in Iowa grew immensely in 2001 when it acquired IBP, the giant beef packer and hog producer. Overnight, it became one of the biggest employers in a state where workers’ comp benefits have traditionally been more generous than in the South.
Back then, Godfrey defended workers’ comp cases for IBP and helped train another young lawyer, Todd Beresford, now the senior workers’ comp manager for the Tyson Fresh Meats subsidiary, headquartered in Dakota Dunes, South Dakota.
Godfrey eventually began representing injured workers. But he and Beresford remained close. And in 2006, when some lawmakers sought to block Godfrey’s confirmation as workers’ comp commissioner, Beresford wrote to the president of the Iowa Association of Business and Industry (ABI), seeking the group’s support.
“I can personally attest to his good character and integrity,” Beresford wrote. “I believe that Mr. Godfrey would approach every case before him as commissioner impartially.”
But the relationship soon soured as Tyson grew concerned that the commission’s decisions were stretching the purpose of workers’ comp and increasing its costs, according to Beresford’s deposition in Godfrey’s lawsuit.
Image may be NSFW. Clik here to view.The Tyson Foods pork processing plant in Columbus Junction, Iowa. Tyson spends about $105 million a year on workers’ comp, according to court documents.(Charlie Neibergall/AP)
When ABI remained neutral on Godfrey’s reappointment in 2009, Tyson formed the Iowa Self-Insurers Association to advocate for large employers on workers’ comp issues. Beresford became president.
The following year, Branstad, a Republican who’d been governor from 1983 to 1999, mounted a campaign to retake the governor’s office.
“When I first ran for governor in the ‘80s, our workers’ comp system was working very well and we were one of the lowest-cost states,” Branstad said in a deposition. “It was only in the 2010 campaign that I was really hearing a lot of concerns about workers’ comp.”
In fact, premium rates in Iowa had been fairly stable under Godfrey. And they were nearly half what they were when Branstad was governor. But as other states cut benefits or saw their economies sink further than Iowa’s, Iowa jumped from the seventh-cheapest state in 2006 to the 16th in 2010 — the same ranking as when Branstad first ran for reelection in 1986.
But that wasn’t the impression Branstad was getting from the business community, which donated millions to his campaign. Branstad specifically recalled a meeting with the founders of Beef Products Inc., which makes the finely textured beef that some have dubbed “pink slime.” They contributed $152,000.
Before even taking office, Branstad summoned Godfrey to a meeting.
That morning, ABI sent Branstad’s chief of staff, Jeff Boeyink, an email titled “Issues with Chris Godfrey.” In forwarding the message to Boeyink, ABI’s president Mike Ralston added a thinly veiled threat that the state could change a law to prevent Godfrey from practicing before the commission after leaving office. “Actions have consequences,” he wrote.
Ralston said in an interview that he didn’t intend it as a threat and that ABI never suggested Godfrey be terminated.
At the meeting, Branstad ticked off the business community’s complaints and requested Godfrey’s resignation.
Godfrey dismissed the concerns and said he intended to serve his full term. Because his appointment was independent of the election cycle to insulate it from politics, Branstad was barred from simply firing him.
Branstad asked his legal counsel to look into the cases businesses were complaining about and explore his legal authority for dealing with Godfrey.
Six months later, Godfrey was called to another meeting. That morning, ABI again emailed Boeyink information. The governor’s chief of staff asked Godfrey again to resign. And when he said no, Boeyink informed him that the governor had decided to cut his pay from $109,000 a year to $73,259 — the lowest amount allowed by law.
“It’s one of those situations where you feel your mouth go dry, you feel your hands get sweaty, and it just kind of seems like the world comes to a stop,” recalled Godfrey, 43. “It was devastating. It kept us from buying a house. It impeded my ability to care for my parents.”
Tyson Defends the Governor
Publicly, ABI denied involvement in trying to oust Godfrey. So Tyson decided the governor needed its help.
Tyson’s government relations team asked Beresford to put together a list of cases that employers felt were unfair.
In a memo to the governor, Tyson claimed that costs had increased significantly under Godfrey and that workers’ lawyers often dropped Godfrey’s name as leverage during settlement negotiations.
“If Godfrey continues as the Iowa commissioner,” Tyson warned, “it is not only going to continue increasing current employers’ w.c. costs, but it also is likely going to impact other employers as they look to locate in Iowa or expand current operations in Iowa.”
In an email to Tyson’s senior vice president of fresh meats, Beresford noted that the company’s lobbyist had dropped off the memo and that the governor’s chief of staff was “very appreciative” and “thought it would be very helpful.”
The governor’s office referred calls to his attorney, who didn’t return calls.
Tyson’s memo detailed a gallery of cases that seemed silly on the surface — injuries that occurred at a company bowling tournament or while bench-pressing at the office fitness center, workers with seemingly minor injuries ruled permanently and totally disabled.
The cases all fell into a large gray area of workers’ comp law that judges have sought to define over the past century. Such injuries that aren’t clear-cut may be deemed work-related depending on the circumstances. They include such things as slipping on ice in company parking lots, aggravating conditions related to aging and recreational activities that serve a business purpose.
Godfrey said he had followed precedent in ruling for the workers and hadn’t even made all the decisions listed. Many had also been upheld by higher courts.
One of the cases that stuck most prominently in the minds of the governor and his staff was the slip-and-fall injury of Tyson employee Shawn Durkop — which Branstad remembered in his deposition as an injury “while shopping for clothes for work.”
Durkop had just started orientation at Tyson’s meatpacking plant in Waterloo, Iowa. The company had arranged for new employees to buy the required white uniform with Tyson’s logo through a payroll deduction. After work, Durkop went to the store to get the uniform, where she slipped on ice and injured her ankle and back.
A deputy commissioner ruled that Tyson was responsible for her medical care and lost wages because, even though she was off work, she was on a special errand at the direction of her employer.
Godfrey affirmed the decision, adding that the clothing was federally mandated equipment for meatpacking work that couldn’t be worn off the job. Tyson could have easily shipped the uniforms to the plant. And the company benefited from the arrangement, he said, allowing new employees to be “ready to work upon completion of the training period even if they do not have money to purchase the uniforms.”
After Godfrey left for Washington in 2014 to become chief judge of the federal employees’ workers’ comp appeals board, Beresford applied to become Iowa’s new workers’ comp commissioner and was interviewed by the governor’s staff. They talked about his vision for the agency and what Tyson thought should be changed.
But when the discussion turned to salary and moving his family, “I believe I said, ‘Yeah, I probably wouldn’t consider the job at that time,’ ” Beresford said in his deposition.
Instead, Beresford, who declined to comment through a Tyson spokesman, was named to a key labor-management committee that advises the legislature and the commission on workers’ comp issues.
“Obviously they had a very open phone line to the governor’s office,” Godfrey said. “People expect fairness. They expect a judge to be a judge, not to be a puppet for some other interest.”
Tobin Asher, Andy McCarthy and Jennifer Stahl contributed research to this story.
Journalists: Interested in reporting on the workers’ comp system in your state? Here’s how.
It took one mother seven years to learn that the for-profit school she trusted with her son had strapped him down again and again, one time after not picking up his Legos.
One winter day nearly eight years ago, Lori Kennedy-Shields dashed off an email to her son’s private boarding school before starting the 90-minute drive through Florida’s rural midsection, to a lake-dimpled stretch of small towns northwest of Orlando. Carlton Palms Educational Center was an unusual school, but so was her son. Though Adam was 23 and nearly six-and-a-half feet tall, his brain resembled that of a toddler. Impulsive and playful, he did inappropriate things — like belting out songs at the top of his lungs in public or swatting people on the head to get their attention. He could dress himself and brush his teeth, but he needed constant supervision. Diagnosed with severe autism at age two, Adam could parrot phrases, yet he often struggled to speak, unable to string together words.
Carlton Palms’ specialty was teenagers and adults with serious intellectual and developmental disabilities like his. Its modular classrooms and living quarters were wedged between orange groves outside the quaint town of Mount Dora. Adam had lived there for seven years, ever since his Tampa-area public school system had acknowledged that it was failing to teach him. Over that time, the school district and state agencies had paid more than $1 million for Adam’s tuition and care. Kennedy-Shields hoped the school would show her son how to express himself better and master basic life skills, like how to cross the street safely. Her dreams for his future were modest; she wanted him to be able to hold down a simple job one day, perhaps washing dishes or folding laundry.
With Kennedy-Shields that day were her husband, Tom, and Adam’s younger brother and sister, Noah and Cara. They had packed their Chevy Suburban with new toys, clothes and treats for Adam, and they were looking forward to watching him gleefully descend upon the bounty. But as they neared Carlton Palms, Kennedy-Shields’ cellphone rang. A supervisor had only just read Kennedy-Shields’ email, and the school was not expecting them. Kennedy-Shields, who had recently clashed with administrators over Adam’s medications, made it clear that she was not turning around.
Less than a half-hour later, she and her family sat in a conference room on the Carlton Palms campus, waiting for Adam. He usually greeted his mother with bright eyes and a snippet of a pop song when his own words wouldn’t come. But when Adam appeared in the doorway, he was silent. Kennedy-Shields was stunned by his appearance. His hair looked greasy and unwashed, and his clothes hung off his thin frame. Typically exuberant, Adam was expressionless. Oblivious to his visitors and the gifts they had brought for him, he shuffled in, staring ahead.
As Kennedy-Shields studied him, her eyes settled on a bright red, raw sore the size of a quarter on his wrist. “What’s that?” she asked a member of the staff, pointing. The employee casually explained that someone must have put Adam’s restraints on wrong.
Restraints? Kennedy-Shields knew Carlton Palms workers could hold down residents in a dangerous situation — such as, she’d thought, if they tried to run into traffic. But no one said anything like that had happened with Adam. What would leave such a mark? She demanded to see Carlton Palms’ executive director, Tom Shea.
When the longtime ambassador for the school strode into the conference room, she immediately challenged him. “What’s going on?” she asked. She pressed him to explain the wound on Adam’s arm, his ill-fitting clothes and his deadened expression. Shea grew angry and refused to discuss it, getting up from the chair he’d barely settled into. Kennedy-Shields, a petite woman with round brown eyes and waves of jet-black hair, put herself between him and the door.
What Kennedy-Shields did not know during that visit was that Adam had been restrained before — not once, but hundreds of times. He had been bound after scratching and hitting and kicking, and after what started as simple defiance. After chucking a toy or dinnerware in frustration. After ignoring an order to clean up.
In his final months at Carlton Palms, Adam’s mother clashed with staff members over his care. When he finally got home, a few months after this picture was taken, she realized how much thinner he’d become. (Courtesy of Lori Kennedy-Shields)
She had no inkling, either, that a paper trail locked away in Carlton Palms’ files showed Adam’s behavior worsening as workers used increasingly harsh methods to control him. She knew nothing of the searing accounts of abuse and neglect that had for decades trailed the school’s parent company, a for-profit chain of group homes and schools called AdvoServ. (Read our story about abuse at AdvoServ, and how the company has bullied regulators and evaded accountability.)
Each year, nearly 20,000 youngsters with severe disabilities like Adam’s are sent to live at special education schools at public expense. Federal law gives parents that option when local public school districts can’t or won’t accommodate their children. But there’s little to guarantee that such vulnerable students — some are unable to speak for themselves — receive safe or humane treatment. As Kennedy-Shields would learn, standards for such programs are so loose, monitoring so inconsistent and penalties so rare that some have escaped serious repercussions even for repeated or egregious lapses.
AdvoServ cares for 700 disabled children and adults at 77 facilities in three states, with Carlton Palms by far its largest campus. State officials and advocates for the disabled have long known of its aggressive use of restraints — holds or devices that limit residents’ ability to move their heads, torsos, arms or legs. In particular, the company became known for embracing so-called mechanical restraints, such as straps on chairs or beds, wrist cuffs or “wrap mats” that resemble full-body straitjackets. Most providers stopped using such measures long ago, after concluding they were risky and often ineffective over the long-term.
Other than Carlton Palms, just two group homes in Florida reported using such devices at all in the first quarter of 2015. Those two homes, which together have about half as many residents as Carlton Palms, used them 88 times over a five-month period. Carlton Palms used them 4,107 times.
In less than five years, Carlton Palms has put its residents in mechanical restraints 28,000 times — a number that made California-based behavior analyst Jeffery Hayden gasp.
“What I’m envisioning,” said Hayden, a consultant for residential care programs, “is just a place full of terror.”
AdvoServ defended its methods, telling ProPublica it takes on residents with disabilities and behavior challenges that other providers can’t handle and that it uses restraints only as a last resort, “when there is imminent danger.” Terry Page, the company’s clinical director, cited two studies that found mechanical restraints are safer than manual restraints. (Both studies were published nearly 30 years ago.)
In 2011, Kennedy-Shields sued Carlton Palms, alleging that the restraints Adam endured — involving equipment that harked back to asylums of eras past — violated Florida law, scarring him physically and emotionally.
To this claim, AdvoServ officials responded that any restraints used were necessary and performed with Kennedy-Shields’ consent, in accordance with the law. Reached this summer at his home, Shea, now retired, declined to answer questions for this story.
“We disagree with the claims made by Adam’s mother, especially considering Adam remained in our care with the permission of his family for [seven] years,” company officials said in a statement. “But because the case is in active litigation it is inappropriate and irresponsible for anyone, including ProPublica, to attempt to litigate the case prematurely, and with only half the story.”
It would be years after Kennedy-Shields’ tense final visit to Carlton Palms before she learned the truth about Adam’s time there.
Back in 2008, in the cramped conference room that unseasonably warm winter day, she only knew something was deeply wrong.
“What,” she pleaded to Shea, “did you do to my son?”
Adam had seemed to fall from the sky into Kennedy-Shields’ arms in 1985.
She and her husband had been devastated when their plans to adopt another boy were derailed at the last minute. Not long afterward, a friend happened to step into a hospital near her office to buy a candy bar and began chatting with the nurses, who were calling adoption agencies because a new mother had just decided to give up her baby. The friend told them about Kennedy-Shields and her husband. Three days later, Adam went home with them.
Kennedy-Shields was 25, and life was full of possibility. She had landed a job as a medical lab technician and married her college sweetheart. They had bought their first home. A doctor had told her that she would never be able to bear children, but now she and her husband were starting a family.
Before he turned two, Adam developed some unusual habits — like rolling shoelaces between his fingers over and over again. He often didn’t respond when adults spoke to him. Concerned, his pediatrician sent the family to a psychiatrist when Adam was 27 months old. Less than a minute into the appointment, the psychiatrist began using the word “autism.”
Kennedy-Shields felt little emotion that day as she listened to the doctor. She didn’t know much about autism, a mysterious disorder that was diagnosed far more rarely then. She checked out a mountain of books from the University of South Florida library near her home. The books she read were full of depressing and now-discredited theories.
Adam’s family tried not to let his disability limit them when he was little - they took him hiking on vacation and out to restaurants. His younger brother Noah looked out for him as a child and continues to now. (Courtesy of Lori Kennedy-Shields)
Later that week, as Kennedy-Shields was working the night shift, she began to weep. Hopes for Adam’s future that had barely begun to take shape were already dashed. He would never go to college or get married; he would never have a career or children of his own. “It’s a death of a sort,” she says now. “It’s a death of a dream.”
She grieved that night and over the weeks that followed. And then, suddenly, her perspective shifted. She saw Adam was happy. He loved to play with his blocks and listen to music. He found satisfaction in simple things. “That was really my salvation,” she says. “It didn’t matter that I had had these dreams for him. He was content.”
Determined to give Adam the best life she could, she tried a host of special services and therapy. She enrolled him in a pioneering early childhood autism program at a nearby university. When her first marriage ended and she remarried, she traveled to North Carolina with her new husband — a physician — so Adam could try an experimental therapy that involved sound. Kennedy-Shields and her husband later took Adam to have the electrical activity in his brain mapped. He underwent metabolic testing. In the end, Kennedy-Shields wasn’t sure any of it made a difference, but she never stopped seeking help.
When Adam was eight, Kennedy-Shields and her husband adopted another boy. Four years later, she found herself unexpectedly pregnant with a girl. Her days were simultaneously draining and fulfilling. She had stopped working when Adam was five. For years she served as president of the Hillsborough County, Florida, chapter of the National Autism Society, but she eventually gave that up, too, to concentrate on her children.
The family moved several times and tried not to let Adam’s disability limit them. They ate in restaurants, took long car rides and vacationed far from home, even taking Adam hiking in the Smoky Mountains. Every weekend, he’d ride a roller coaster twice at Busch Gardens. It always calmed him.
Adam smiled often, but sometimes he shrank from others’ touch. He would rock back and forth, chewing absently on the soft pad at the base of his thumb. He put things in his mouth that weren’t food — like crayons, blocks and Play-Doh — though he didn’t typically swallow them. But in many ways, Adam was the easiest of Kennedy-Shields’ three children to raise. “He doesn’t talk back,” she says. “He doesn’t do anything that could be construed as mean.”
Kennedy-Shields did worry that strangers would misunderstand Adam. She avoided taking him to quiet places, like movie theaters, because of his singing. And as he grew bigger, his habits of slapping people to get their attention and playing chase-me games made her wary of public spaces.
When he hit puberty and experienced the rush of hormones that comes with it, Adam began acting out during his short visits with his adoptive father, Kent Fields. (Adam took his last name.) Fields says Adam slapped and bit himself and banged his head. He put his hand through the wall. One time, Fields intervened when he saw Adam running toward his toddler stepsister with a raised baseball bat. To keep Adam from hurting himself, Fields would wrap his arms and legs around the boy as he flailed. Adam didn’t have the same problems at his mother’s house, and his teachers never reported incidents like that.
Adam’s schooling remained vexing, too. One afternoon when he was in middle school, as Kennedy-Shields waited on the bottom step of the school bus, Adam hit the bus driver on the head to say goodbye. Startled, the driver slapped Adam — hard — with the back of her hand.
Kennedy-Shields complained. The driver took early retirement, but the school district never apologized.
Kennedy-Shields also feared Adam wasn’t learning much in the classrooms where he sat all day with other disabled students. In middle school, his teacher spent long stretches outside, smoking cigarettes. When Adam got to high school, Kennedy-Shields says she found out his purported instructor worked with other students outside his classroom for most of the day. One classmate walked out the door and managed to cross a four-lane highway by himself — three times.
After Kennedy-Shields’ complaints, the school district transferred Adam to a public school for special education kids. Not long after, Adam took off, too — passing through an unlocked front gate and walking a few blocks to Boy Scout Road, the busy thoroughfare that leads to Tampa International Airport. The school’s principal jumped in her car and went after him. “So that was the end of that for me,” Kennedy-Shields says. “I thought, OK, this is it, I’m done with Hillsborough County.”
She knew she was running out of time to find Adam a good school. He was 16, and while his peers were looking ahead to graduation, he had six years before he aged out of public education. Kennedy-Shields had hoped that by this point, he’d have acquired basic vocational skills, but that wasn’t happening. Nothing seemed to be happening, except the ticking of the clock.
Someone at an autism society meeting told her about Carlton Palms’ reputation for working with kids like Adam. She toured its lakefront campus, taking along a therapist from a university-affiliated autism center. The school had opened 13 years earlier, in 1987. When she visited, it had roughly 75 residents, adults and children — most in their teens — with similar disabilities. The campus had a playground and a basketball court, and its small classrooms sat off a quiet, dead-end road. There were no four-lane highways in sight. Though she had done everything she could for him, Kennedy-Shields knew Adam had a great deal to learn before he could live in the world as an adult. She did a cursory check online. Nothing she found raised any alarms.
Carlton Palms’ isolated campus of group homes and classrooms sits on a lake and includes some modular units. (Heather Vogell/ProPublica)
She wanted the school district to acknowledge it was failing to educate Adam and to cover his tuition at Carlton Palms. When district officials resisted, she hired an attorney. That was on a Thursday. By the following Monday, the school district had backed down.
Kennedy-Shields went with Shea, Carlton Palms’ director, to observe Adam in his class in Tampa. Shea was personable, charismatic and confident in what he was pitching, she says. He agreed the boy would be a good fit for the school.
Before Adam left for Carlton Palms, Kennedy-Shields filled out a mountain of paperwork. One form said that in case of “severe behavior problems,” staff members might use emergency measures that involved “manually holding an individual” or “physically restraining an individual with restraints approved for such purpose, applied until the person is calm.” Wanting to keep Adam safe, she signed it without hesitation.
Kennedy-Shields says the school informed her that, to help Adam make the transition to life at Carlton Palms, he shouldn’t have any contact with his family for at least two months. The idea left her unsettled, but she told herself that she needed to set aside her misgivings. Her friends had told her to think about what was best for Adam in the long-term. Ultimately, her husband drove Adam to Carlton Palms, because Kennedy-Shields feared she couldn’t do it. “I thought I would turn around and come home,” she says.
Adam’s admissions forms noted that he was in good physical health, on no medication, slept well and had a good appetite. Under “patient chief complaint,” it listed acne.
Weeks passed. Kennedy-Shields’ house in northern Tampa was strangely quiet without Adam, whose voice she longed to hear. She’d rarely left him; they’d only once spent a few days apart. When she called each day to check on him, Carlton Palms staff assured her that her son was fine. She felt relieved that perhaps she had finally found a way to help him take a few more steps toward independence.
Unbeknownst to Kennedy-Shields, the pastoral setting at Carlton Palms belied a more turbulent history.
AdvoServ traced its roots to the Au Clair School in Delaware. According to a 1979 series in the Wilmington News-Journal, staffers said children with autism were being beaten as part of their treatment. Three years before Adam set foot in Carlton Palms, a New York Times story detailed more problems at the company’s Delaware facilities, including state inspectors’ discovery of children in trailers smelling of urine and feces and workers’ description of suspicious injuries.
Throughout the 2000s, complaints about AdvoServ facilities streamed in to child and adult protective service agencies. The homes’ reliance on mechanical restraints resulted in a trail of injuries. AdvoServ’s leaders defended the measures as necessary to protect residents from harming themselves or others, but some residents and their families recall needlessly violent takedowns, followed by extended periods of confinement. Donna Salvato said this happened repeatedly to her brother, Jimmy Mullins, when he lived at an AdvoServ home in New Jersey in the late 2000s.
“They’d tie my whole body in the mat,” said Mullins, now 42, who is developmentally disabled and prone to explosive rage. “The thing they’d tie my wrists on would hurt me really bad.”
Many homes for the disabled had reduced or phased out mechanical restraints by then. Federal law and professional standards had restricted their use in health care settings. Providers increasingly turned to alternatives. They trained workers to pay closer attention to medical problems that could provoke outbursts, and used positive encouragement to get residents to avoid risky behaviors.
At Carlton Palms, workers were sometimes overwhelmed. Staffing shortages could mean they worked two, or even three, eight-hour shifts in a row and monitored as many as eight residents at a time, said Jill Bass, who was a therapist at the facility for nine months in 2010. When residents acted out, workers were quick to use restraints. “Take them down, take them down,” said Bass, who left after injuring her ankle while using a manual hold to stop one patient from attacking another. “That was their way.”
Restraints were ingrained in the company’s culture, but there was more than that at work, added Glen Gandy, who worked with residents at Carlton Palms for several years. High turnover meant workers often didn’t know residents well enough to calm them, and they would turn to restraints instead, Gandy said. He was fired in 2012 after an incident in which he and other workers attempted to wrestle a thrashing resident into a wrap mat. As Gandy held the resident’s head, the man bit down on Gandy’s finger. Gandy broke the man’s jaw — accidentally, he says — getting his finger out of the man’s mouth.
The Wrap Mat
Nearly every day at AdvoServ, residents are strapped into mechanical restraints, which were considered so inhumane that the United Kingdom banned them in asylums in the 1800s. They have also been mostly abandoned in the U.S.
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Workers force a person trying to hurt themselves or others to lie down.
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Workers force a person trying to hurt themselves or others to lie down.
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Workers force a person trying to hurt themselves or others to lie down.
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They tie down the person's wrists and ankles with straps.
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They tie down the person's wrists and ankles with straps.
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They tie down the person's wrists and ankles with straps.
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They fold big flaps across the person’s body.
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They fold big flaps across the person’s body.
Image may be NSFW. Clik here to view.
They fold big flaps across the person’s body.
Image may be NSFW. Clik here to view.
They use seatbelt-like straps to close the mat, and turn on a fan so the person won’t asphyxiate.
Credit: Hiram Henriquez for ProPublica
AdvoServ said in a statement that the company’s turnover is “higher than we’d like” but lower than the industry average. Officials also said they have only used triple shifts “in the case of a natural disaster,” and that the company has always met staffing and training requirements.
Kennedy-Shields had little way of knowing about the abuse complaints involving Carlton Palms. Such allegations usually aren’t publicized or available to parents, especially if their child is not involved. Right after the no-contact period ended, she went to see Adam, who appeared to be doing well. “When I saw him,” she says, “he was so happy to see me.” She says she visited at least once a month and called at least once a week. She’d pack her car up with new clothes, candy and toys and leave the bustle of Tampa, passing rolling hills and grazing cattle on the way to Mount Dora. She always called or emailed ahead, alerting staff when she planned to arrive on campus.
Employees would bring Adam to her at the main administration building, and they would visit in a conference room. If it was a weekend, when administrators weren’t there, they would go into a classroom or hang out at the swings. They’d sing to each other and have simple conversations, with Adam signaling his preferences with a word or gesture. Each fall in the first few years Adam was there, she and her family attended Carlton Palms’ family day — a festival featuring pony rides and barbecue dinners. She never saw anything that gave her pause. She later realized she didn’t see all that much — staff members usually asked her to stay in designated areas and only let her see her son’s bedroom once in seven years.
Kennedy-Shields participated in phone meetings with Carlton Palms and school district officials about Adam’s special education plan. He seemed to be making progress — at least toward the narrowly constructed targets set for him. The school told her he was completing more tasks successfully. But Kennedy-Shields had no way to check. His lack of speech and the fact that he was so far from home made it impossible for her to verify what Carlton Palms told her. And though it was paying the bill, the school district didn’t independently evaluate Adam’s academic growth.
Adam aged out of the school system in 2007 when he turned 22. But Medicaid — the government insurance program for the poor and disabled — paid for him to continue his stay at Carlton Palms as an adult.
Staffers said they would keep working to help Adam meet his goals. Yet Kennedy-Shields found herself enmeshed in a series of conflicts with Shea. The tensest interactions were over her son’s health.
Adam started taking an antipsychotic drug a few years into his stay, after Carlton Palms staff told Kennedy-Shields that her son was agitated. She balked at first, but relented, hoping it would help Adam relax. The program’s doctor would change drugs and adjust doses regularly, depending on how well the medicine seemed to be working.
Then, in 2006, she got a letter from a Medicaid psychiatrist suggesting the antipsychotic Adam was on should be monitored closely because of potentially dangerous side effects. A psychiatrist working for Carlton Palms responded that all the necessary lab work had been done, writing, “Thank you, so much, for this incredibly intrusive waste of my time.” But Kennedy-Shields began to ask more questions. Her son hadn’t been diagnosed as psychotic or bipolar. “They were always pushing it with me, and I was like, ‘I don’t think he needs this,’ ” Kennedy-Shields says. “There is no drug for autism.”
In 2007, she said, Shea threatened to discharge Adam if Carlton Palms couldn’t put him on Abilify — a potent antipsychotic that is sometimes prescribed for autistic patients who are irritable or lash out. As with all antipsychotics, the potential side effects were frightening — they could include diabetes, significant weight gain and involuntary facial tics. Kennedy-Shields had grown worried that Adam’s caretakers weren’t paying close enough attention to his reactions to drugs. Once, she’d found him gasping for breath after a medication change, but staff hadn’t seemed to notice. So this time, Kennedy-Shields refused to give her consent.
A bigger blowup came soon after, when she learned that a blood test had shown that Adam was anemic, a diagnosis he had never received before. She asked the doctor who worked at Carlton Palms to find out why. Shea told her never to call the doctor again and denied the anemia, Kennedy-Shields says — though a nurse had read the full test results to her. (She says she never got an explanation, though she later surmised he simply wasn’t getting enough food.)
Noah, Adam’s brother, remembers visiting Adam and seeing his face torn up from itching and scratching after an apparent allergic reaction that had gone untreated. “It looked like a raccoon had attacked him,” Noah says. Another time, Adam took off running during a visit — and fought workers when they grabbed him — something Noah says he wishes the family had viewed as a warning sign.
By early 2008, Kennedy-Shields was fed up. She asked Adam’s support coordinator — who assisted families with Medicaid in arranging for services — what she needed to do to move Adam. A few weeks later, Kennedy-Shields discovered the raw wound on Adam’s wrist. Shea responded to her questions with rage, she says.
When Adam left Carlton Palms, his mother discovered strange marks and scars all over his body. (Courtesy of Lori Kennedy-Shields)
“I don’t have to take this shit from you,” Shea told her during their February 2008 confrontation, Kennedy-Shields says. They sat around a table in a small conference room with faux-wood paneling. Shea grabbed her son’s chair in his hands and pushed it roughly, she says, as he squeezed past and headed for the door. She jumped to her son’s defense. “Get the fuck out of my way,” he told her, she says. He is going to hit me, she thought. She stepped aside.
In court proceedings related to Kennedy-Shields’ lawsuit, Shea has denied making those comments.
Kennedy-Shields wanted to put Adam in the Suburban and take him home right away. The support coordinator urged her not to act rashly — paperwork had to be filled out, and she’d first need to set up a bedroom in her house for Adam and line up a new behavior analyst. After what had happened, they wouldn’t lay a hand on Adam, he said. He told Noah to lead Kennedy-Shields out. “I’m sure they were very scared driving home with me,” she says. “I was hysterically crying the whole way.” No one spoke during the ride.
Shea wrote a letter of dismissal for Adam, calling Kennedy-Shields uncooperative and saying she was unwilling to work with staff.
Kennedy-Shields told legal advocates for the disabled about the confrontation. Someone complained to the state about Adam’s treatment. Carlton Palms reported that it was discharging Adam “due to verbal attacks against staff, doctors etc by” an unnamed person who made “all kinds of accusations against the staff,” state records show. (The names are blacked out, but it is clearly referring to Kennedy-Shields.) Nothing came of the complaint.
After her confrontation with Shea, Kennedy-Shields spent weeks in a frenzy, rearranging her home and life to prepare for Adam’s return.
He no longer had a bedroom in her house, so the family had to redecorate his old room. They made sure big pieces of furniture, like bookcases and dressers, were bolted to the wall so he couldn’t accidentally pull them over. They fixed the locks so he couldn’t work them. They moved electronics and remote controls up high, because Adam liked to turn up the sound so loud he’d blow the speakers. They put plexiglass on the window so he wouldn’t break one with a slap, as he had before.
Kennedy-Shields called the state Agency for Persons with Disabilities, too. The agency wanted to put Adam in a group home for people with “intensive behaviors.” She refused and fought to arrange for aides and a behavior analyst to work with her son at home. Distracted one day outside the agency’s building after a heated encounter, she got into a minor car wreck after failing to look before changing lanes.
As the weeks ticked by, Kennedy-Shields worried about Adam “every minute of the day,” her husband, Tom Shields, says. “I don’t think she slept for two weeks. You could see the distress on her face worrying about it.” She’d wonder what was happening that day. She’d say over and over, “He needs to be out of there.”
Finally, one day in April, Adam arrived home in a Carlton Palms van that carried all his possessions. A bit hesitant when he first walked in the door, he soon happily roamed a house he knew well, visiting his bedroom and rummaging through kitchen cabinets like he’d never left. His brother and sister — who had been nine and five when he had left — were now 16 and 12. Kennedy-Shields hovered over Adam like she hadn’t in years, making him his favorite sandwich — a “fluffer-nutter” — and attending to his every need.
But any comfort Kennedy-Shields felt in Adam’s seemingly easy transition quickly dissipated. She began to discover clues that revealed what his years at Carlton Palms had been like.
He still needed constant supervision, and when he took off his clothes, she saw round circular spots where the hair was missing on his upper body and arms, and a white scar across his upper chest, below the shoulder. “What’s going on here?” she wondered, grabbing a camera to photograph them. She was shocked, too, at his protruding rib cage and hollow cheek bones. He was down to 153 pounds on his 6-foot, 5-inch frame.
She soon found he had acquired strange new habits, too. He’d grab food as soon as it was put in front of him and stuff it in his cheeks, like a chipmunk. “He’d say, ‘Go to your room, no Pizza Hut,’” Kennedy-Shields recalls. Her family never ordered from Pizza Hut, and she had certainly never punished Adam by withholding food. Besides, he had a milk allergy and was not supposed to eat dairy. He also said things like, “you motherfucking little bitch” that he hadn’t heard at home. Sometimes, he changed the pitch of his voice — as if mimicking someone who wasn’t there — when doing it.
“Every day it was something else,” Kennedy-Shields says. “I would pick up that something was wrong, something was wrong, something was wrong.”
Then one day, shortly after he came home, he walked out of the bathroom and began screaming and shaking his head back and forth. He started hitting himself with a ferocity Kennedy-Shields had never witnessed. He was slapping his head and trying to bang it into his knee. “He was making himself bleed,” she says. “He was beating himself.” She had no idea what had set him off or how to stop him. She and Noah grabbed Adam’s arms and tried to talk to him, but it was as if he didn’t see them. His hands shook uncontrollably.
“It was very scary,” says Noah. He realized his brother — so long a benign presence — had come home a different person.
Adam grew agitated when someone stood in front of him or moved too quickly toward him. He’d stare blankly and tremble. He seemed to be in a trance when upset — he didn’t even appear to recognize his own mother. He refused to swim in the family pool and frequently grew upset while in the bathroom. He would punch holes in walls, shred clothes. A few times, he woke up at night and smeared feces on himself. Kennedy-Shields was wary of taking him out in public. At home, the family used a helmet, mitts, pillows and padding to protect Adam from himself. She began to build a list of things that seemed to spark his episodes — triggers she says he developed while at Carlton Palms.
“I started to put everything together,” Kennedy-Shields says. “And that’s when I hired the attorney.”
After two years at home, Adam moved to a group home, then to an apartment, and finally to a rental house to live on his own with the help of round-the-clock aides. He gained 90 pounds in the six months after leaving Carlton Palms and grew more stable — without restraints — though he still had episodes when what seemed like a “fight or flight” instinct kicked into high gear. Kennedy-Shields now had a plan for how to handle Adam’s meltdowns. Still, every time one occurred, she found herself struggling to function.
Her outrage over the dramatic changes in her son continued to simmer. She believed Carlton Palms was responsible. But she still didn’t know exactly how.
The school had maintained detailed records of Adam’s care. But, she says, it had never allowed her to see them. Shortly after Adam left, she received an odd letter from Carlton Palms’ lawyer, saying that portions of Adam’s file had been stolen out of an employee’s car.
Kennedy-Shields’ lawyer put in requests — in 2008, 2009 and 2010 — for records on the use of restraints on Adam and about other incidents involving him, to no avail.
She wanted to send a message and hold the program accountable. In late 2011, she filed a lawsuit in federal court, alleging Adam had suffered permanent injuries and seeking unspecified damages. A judge kicked the suit to state court.
As the case dragged on, Kennedy-Shields watched closely for news about Carlton Palms. The media carried accounts of complaints filed by the state against the facility. The accusations were staggering: When a boy at Carlton Palms refused to lie face down for a restraint, a staffer had kicked him in the head and choked him. Residents had been beaten, dragged across the floor and struck with a plastic container that caused an open head wound, the state alleged. In 2013, a 14-year-old girl with autism died there after a night in which she projectile vomited while being tied to a bed and a chair.
Then one day in the summer of 2014, an envelope from Kennedy-Shields’ Tampa personal injury attorney arrived in her mailbox. It contained a flash drive holding documents that Carlton Palms finally released about Adam’s time there.
Hunched over her son Noah’s laptop computer, Kennedy-Shields clicked on files containing the narrative of her son’s days that she’d both yearned for and feared. She learned that staffers had given Adam meals like macaroni and cheese, despite his dairy allergy. He’d once climbed over a fence and splashed in a lagoon where she remembered seeing alligators sunning themselves during her visits. He had hurt himself falling off a swing. A staff member was fired after hitting him.
But it was the restraints that took her breath away.
She had steeled herself before she looked at the files, expecting to read that in his final months at Carlton Palms, Adam had been shackled in restraints, as the wound she had spotted suggested. Then she saw the date.
Carlton Palms reported that a restraint had occurred at 10:20 a.m. on June 17, 2001 — roughly seven months after Adam arrived at the school, when Kennedy-Shields had thought everything was fine. She felt her heart quicken as she realized that Adam had been tied up and pinned down for years without her knowledge.
After a few minutes, she shut the files and called her attorney, furious. She couldn’t bear to see more.
Weeks passed. Depositions were scheduled for her and Tom Shea. Bracing herself, she knew she had to read on.
There were more than 750 pages of records. In dispassionate terms, the records revealed repeated incidents of Adam refusing to follow directions, escalating his behavior as workers intervened and ending up forced into a wrap mat, or with his ankles shackled or with his wrists cuffed against a waist belt. Shea was notified directly of some incidents, records said. Interspersed were reports of injuries Adam suffered in and out of restraints.
Some restraints occurred in response to what sounded like dangerous behavior, such as his hitting himself or banging his head. But others hardly screamed emergency at all. One time, Adam refused to clean up Legos and ended up in mechanical restraints. He was put in them, too, for an incident that began with his smiling and throwing a toy across the room. His ankles were bound after he tossed a dinner bowl and broke it, and after he launched couch cushions across the room.
Some episodes seemed more punitive than safety-related — he was placed in a wrap mat “because he hit Matt in the head,” a staffer wrote, for instance — or even for convenience: “it was in the best interest of the great room to put mechanical restraints and use the protective wrap mat.”
Kennedy-Shields stopped reading so she could run and vomit, then she sat down on her kitchen floor and sobbed, knowing she finally had the answer to the question she had asked Shea nearly seven years earlier. Noah came over and kept reading, stopping at one point to throw something across the living room in anger. They pressed on through the night. Together, they finally learned the secrets Adam had never been able to tell.
In the spring of 2015, more documents arrived from Carlton Palms. Adam’s “behavior plans” laid out the habits that were causing him problems and described what the facility was doing to address them. Parents were supposed to consent to treatment options and sign forms when new plans were written. But despite yearly updates that showed Adam’s behavior getting worse — not better — as Carlton Palms used progressively more forceful means to control him, Kennedy-Shields only recognized the first plans as ones she had seen and approved.
The plans told a heartbreaking tale. A “handsome young man” who enjoyed music and being outdoors arrived at Carlton Palms in November 2000, seeking help with his speech and a decrease in socially disruptive, but typically not life-threatening, behaviors like hand-biting and slapping. His aggression, an admissions document said, was “not very frequent” and “not very sophisticated.” He slept well and had a good appetite. He was not on any medication.
The years ticked by, and his behavior worsened. He started hitting himself and scratching until he bled. His behavior got more intense when he was ill — and he was often ill — as he endured chronic sinus congestion, headaches and ear infections. The plans recognized that medical problems triggered his outbursts, but also attributed them to his desire to “escape from demands” — or, essentially, to ignore instructions.
Clinicians responded by upping the ante: At first, he was given a sort of ”time out” away from others. By 2003, the plan called for the use of the wrap mat for five minutes plus one minute of calm — though records show Adam had been subjected to it before. Later, a “range of motion” device was added to the plan — a waist belt with wrist cuffs that can be clipped to it to force users’ hands to their sides.
By 2005, the description of Adam had changed dramatically from the original admissions forms Carlton Palms staffers had filled out. The new plan said he was admitted to the program because he had “attacked his younger siblings and has eloped from the house into dangerous situations” and that “within the home they could not offer the kind of 24-hour supervision that he required ensuring safety.” It said that “While living at home his family would have to take turns staying up at night to ensure that Adam did not run away or self-injure.” None of that was mentioned in the intake forms. And it hadn’t happened while Adam was with Kennedy-Shields, who says she took care of Adam for all but a few hours a month.
The 2005 plan raised the possibility of finding a placement closer to Tampa for Adam. But Carlton Palms behavioral specialists asserted that any place would need the same strong measures — mechanical restraints like a wrap mat, 24-hour supervision, locked premises and a well-staffed facility — to control him. Those parameters suggested few, if any, other homes would work.
By 2008, Adam’s plan said that if he wouldn’t stop his aggression or self-injury, workers should bind him in the wrap mat until he was quiet for one minute, then secure him in the “range-of-motion” device until he was calm for an hour.
The last year Kennedy-Shields’ signature appeared on a plan was 2002, documents from Carlton Palms showed. Forms attached to a few other plans were signed by Fields, Adam’s now-estranged adoptive father, who did not have custody but visited him a few times. Kennedy-Shields, in contrast, says she talked with Carlton Palms staff several times a week, visited regularly and had a fax machine at home. She was Adam’s legal guardian. Neither Adam’s father, nor the facility, told her what was in those plans, she says.
In 2004, clinicians had Adam sign the parent consent line himself, though he can’t write. In 2006, the signature — presumably his — is wavy scribbles that don’t resemble letters. On another plan, a clinician who drew up the plan signed her own name on the parent consent line, adding, “conv. with mom.” (Kennedy-Shields says no such conversation took place.)
The plans aimed to justify Carlton Palms’ hands-on approach with Adam. Top administrators at the center — including Shea — signed off on them. A peer review committee that considered them sometimes included state officials alongside Carlton Palms representatives.
There were other revelations in the records Kennedy-Shields received. At one point in 2007, a physician authorized workers to pin down Adam with a bed net — a blanket of woven mesh that is fastened to the bed frame and stretched across patients so they can’t sit up or fully move their arms or legs. The records don’t say how often it was used, if ever. Another document revealed that Adam wasn’t the only resident who was underweight — a 2005 letter from a nurse listed a dozen residents whose weight was dwindling to the point of concern.
It turned out the support coordinator was wrong when he insisted Adam would not be touched at Carlton Palms after Kennedy-Shields’ confrontation with Shea. Workers tied Adam down at least 44 times in the roughly two months before he arrived home. Some occurred in the middle of the night.
It is hard to visualize what happened in some of the incidents, or to know why staff felt the danger was significant enough to warrant restraints. In one instance, a staffer wrote, “Begin scratching his legs and back, while sitting in a Fetal position.” There was no mention of why he might be itching, or whether something less drastic — treating dry skin or allergies, clipping his nails or putting mitts on him — would have quelled his urge to scratch.
Adam was also getting hurt a lot. Roughly six weeks before leaving Carlton Palms, he was sitting listening to headphones, then took them off and began scratching and slapping himself. He was put in a wrap mat. While he was in it, another resident walked over and kicked him in the face. Then, barely two weeks later, workers noted that he had a black eye — offering no explanation in the documents for the swollen and discolored eyelid. A day after that, “staff found client Adam bleeding from the head” because of an unexplained half-inch cut.
The plans and restraint forms revealed that Adam was getting unmistakably worse during his time at Carlton Palms. By his final year there, he no longer slept through the night, had been on and off antipsychotic medication and sometimes tried to seriously hurt himself.
After spending hours poring through the paper trail on her son’s care, Kennedy-Shields reached her own conclusion about what Carlton Palms had done to Adam: “They,” she says, pausing, “tortured him.”
One bright, cool morning this spring, I visited Adam. Six months earlier, Kennedy-Shields had moved him into his own small rental house, with a brick front walkway and a screened-in back porch. It is utilitarian, not fancy, with a huge flat-screen television that is turned up too loud. Warm sunlight streams through ceiling-level windows, and Adam is snuggled under a blanket on a soft leather couch.
He says good morning in muffled tones, his gaze shifting around the room. He is excited to go to lunch with his mom. “Van ride!” he says, working on sewing shoe laces through holes in a bunny-shaped card.
Adam, now 31, spends his day playing with toys, such as Mega Bloks, and doing simple chores, guided by round-the-clock aides who are paid for by Medicaid. His brother Noah, who is studying to become a behavior analyst, works with him daily. Adam can easily visit his family’s house a quarter-mile away, but if he gets overwhelmed, he has his own space to return to.
Kennedy-Shields gives Adam a candy cane for doing something she asked. He crunches through it, holding it in his enormous hands and taking giant bites as if it’s a carrot stick. He moves on to a turtle lacing card.
He starts to whine and squeal, which can be a precursor to agitation. “Hey, excuse me,” Kennedy-Shields says, trying to quiet him. “Who loves you, baby?”
Adam settles down to play again. “This is my kid,” she says, “He should have stayed this way.”
He can fold laundry and do easy tasks like shredding paper. “He could have had supported employment,” she says. “What they did is they ruined his life. In every way, every way. They ruined mine,” she says, tears collecting in her eyes. “Because he should be like this all the time. This is what he’s like.”
Shredding paper is one of the tasks Adam likes to do in the small rental home where he lives with help from his family and 24-hour aides. He is no longer restrained. (Heather Vogell/ProPublica)
Kennedy-Shields is girding herself for a trial in her case against Carlton Palms, which she expects will take place in 2016. She still doesn’t think she has seen all of Adam’s records, and her lawyers are trying to get Carlton Palms to turn over the rest.
She monitors Adam’s care closely now. Video cameras are mounted in full sight throughout his house. Rigged to her cellphone, she checks the feed several times an hour. “Any time, any day. In the middle of the night, I’ll just get up and look,” she says.
I ask Kennedy-Shields if Adam has ever hurt her.
When he first came back and went wild, she tried to hold his hands like she used to, to calm him. “His hands are so much bigger,” she says, remembering. He squeezed her finger too tightly, digging his nails in until it stung. He has hit her, too, while flailing his arms. But at those times he had that vacant stare, like the one she first saw at Carlton Palms. “When he hits me,” she says, “he has no idea who I am.”
He is not on antipsychotics. When he gets upset, his caregivers put a pillow in his lap — to keep him from banging his head on his knee — and back off.
He is not restrained, with one exception: His brother Noah sometimes grabs hold of Adam’s hands to stop him from harming himself. Noah is the only one who’s allowed to do that. Scars on Noah’s forearms serve as reminders of the desperate place where his older brother’s mind still goes.
“No one’s hurting him again,” Kennedy-Shields says. “Ever.”
Annie Waldman provided data analysis for this story. Production by Emily Martinez, Rob Weychert, and Hannah Birch.
Heather Vogell reports on schools for ProPublica. Previously, she reported on test cheating in public schools at The Atlanta Journal-Constitution. Her work resulted in indictments of the superintendent and 34 others.
Restraint devices are rarely used on the disabled today. At AdvoServ, a chain of for-profit homes for disabled kids, it's not uncommon. One such school is Florida's Carlton Palms, where Adam, a severely autistic boy, was tied down hundreds of times, one time for not picking up his Legos.
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Red Cross CEO Gail McGovern, who was hired to revitalize the charity, has cut hundreds of chapters and thousands of employees.
by Justin Elliott, ProPublica
When Gail McGovern was picked to head the American Red Cross in 2008, the organization was reeling. Her predecessor had been fired after impregnating a subordinate. The charity was running an annual deficit of hundreds of millions of dollars.
A former AT&T executive who had taught marketing at Harvard Business School, McGovern pledged to make the tough choices that would revitalize the Red Cross, which was chartered by Congress to provide aid after disasters. In a speech five years ago, she imagined a bright future, a “revolution” in which there would be “a Red Cross location in every single community.’’
It hasn’t worked out that way.
McGovern and her handpicked team of former AT&T colleagues have presided over a string of previously unreported management blunders that have eroded the charity’s ability to fulfill its core mission of aiding Americans in times of need.
Under McGovern, the Red Cross has slashed its payroll by more than a third, eliminating thousands of jobs and closing hundreds of local chapters. Many veteran volunteers, who do the vital work of responding to local fires and floods have also left, alienated by what many perceive as an increasingly rigid, centralized management structure.
Far from opening offices in every city and town, the Red Cross is stumbling in response to even smaller scale disasters.
When a wildfire swept through three Northern California counties in September, the Red Cross showed up but provided shelter to just 25 of 1,000 victims at one site. Because of the charity’s strict rules and disorganization, many evacuees slept outside for over a week, even when the weather turned bad. “These families were sleeping in the rain with their children,” said Wendy Lopez, a local volunteer.
Local officials were so angry they relieved the Red Cross of its duties.
The Red Cross had closed chapters in the area last year. “You’re seeing a huge loss of experienced staff,” said John Saguto, a 15-year Red Cross volunteer in Northern California.
Some emergency planners around the country have concluded they can no longer rely on the charity.
“I essentially wrote Red Cross out of my Local Emergency Operations Plan and advised many other Emergency Managers across the state to do the same,” wrote Tim Hofbauer, an emergency management director in Nebraska, in a 2013 email to a Red Cross executive.
The Red Cross’ response to the Valley Fire in three Northern California counties in September was hurt because of recent cuts the charity made in the region. “You’re seeing a huge loss of experienced staff," said John Saguto, a 15-year Red Cross volunteer. (Stephen Lam/Getty Images)
This year, the Red Cross quietly made cuts in the formula it uses to determine cash benefits to victims of home fires and other disasters. A family of four whose home burned down previously could have received around $900 in immediate assistance. Now they would get a maximum of $500.
Over the past two years, ProPublica and NPR have examined the charity’s flawed responses to major disasters, including the 2010 earthquake in Haiti and Superstorm Sandy in 2012. A broader look at McGovern’s seven years as chief executive shows her team has repeatedly fallen short of its own goals to secure the organization’s financial future and improve its delivery of disaster services.
McGovern declared in August 2013 — her fifth anniversary on the job — that she had executed a “turnaround” that made the Red Cross a “financially stable’’ organization with balanced budgets in three of the previous four years.
Behind the scenes, however, losses were mounting. The organization ran a $70 million deficit that same fiscal year and has been in the red ever since. Internal projections say the charity will not break even before 2017.
As part of her effort to run the Red Cross more like a business, McGovern recruited more than 10 former AT&T executives to top positions. The move stirred resentment inside the organization, with some longtime Red Cross hands referring to the charity as the “AT&T retirement program.’’
Her team unveiled a five-year blueprint in 2011 that called for expanding the charity’s revenue from $3 billion to $4 billion. In fact, Red Cross receipts have dropped since then and fell below their 2011 level last year.
McGovern declined to be interviewed for this story. Our account is drawn from interviews with present and former Red Cross staffers and volunteers, local disaster relief officials, and hundreds of pages of internal documents.
The Red Cross defended McGovern’s track record in a statement, saying she took over an antiquated organization that allowed each local chapter to create its own system for personnel, technology, and bookkeeping. The layoffs and shuttering of local chapters, the statement said, was painful but essential for an organization that was both inefficient and financially unsustainable.
In her seven years as CEO of the Red Cross, Gail McGovern has cut hundreds of chapters and thousands of employees, eroding the ability of the charity to aid Americans in times of need. (Sarah L. Voisin/The Washington Post)
The charity also said the cuts haven’t affected its ability to provide aid. “Our focus has always been to cut the costs of delivering our services — not the services themselves — and we believe we have achieved that.” It said there has been a small increase over the last three years in overall payments to disaster victims, though data does not exist going back to the start of McGovern’s tenure. Of the cuts in the formula for cash benefits, it said that preliminary data under the new system shows that victims are still getting the same level of assistance as in the past.
McGovern had a major accomplishment this month when a federal judge ended two decades of special government oversight of the charity’s blood-banking operation, which collects and sells blood to hospitals. The Red Cross, McGovern said in an internal announcement, had achieved “quality and compliance milestones that at one point seemed almost unimaginable.”
Still, the unit, which is the Red Cross’ largest division, is an increasing drag on the charity’s bottom line, in part because changes in medicine have sharply reduced the demand for blood. In its statement, the Red Cross pointed to those changes as the reason for the charity’s recent deficits.
But Red Cross insiders said the blood division has also been hurt because the charity bungled a software project and moved too slowly to respond to an evolving industry. Internal estimates obtained by ProPublica show that the blood business lost $100 million in the last fiscal year, a devastating drain on the charity’s finances.
Another key source of revenue, the sale of CPR classes and other training, has similarly struggled under McGovern. A plan to vastly increase the revenues of the division backfired as customers switched to less expensive providers.
Despite the failure of the plan, the former AT&T executive who McGovern brought in to run the division and other top managers were awarded bonuses last year, one former official recalled.
Employee morale has been damaged by the repeated layoffs — or “right sizing,” as McGovern calls it — as well as by the perception that the Red Cross is increasingly focused on image over substance.
A marketing department created by McGovern tried to lift spirits by crafting what it termed the Red Cross’ “internal brand essence.” The slogan, designed “to remind and guide us as we work,” was “Sleeves up. Hearts open. All In.” — an homage to the Friday Night Lights television show’s signature: “Clear Eyes. Full Hearts. Can’t Lose.”
The rallying cry hasn’t worked. An internal survey of Red Cross employees obtained by ProPublica found just 35 percent responded favorably to the statement, “I trust the senior leadership of the American Red Cross.”
McGovern’s career began far from the world of nonprofits, as a computer programmer at the Bell Telephone Company of Pennsylvania. She grew up in suburban New Jersey and enrolled in Johns Hopkins University in 1970, a member of the first class to include women. “I was a quantitative sciences major and I was always one of the only women in my classes. It definitely prepared me for life,” she later told the Washington Post.
McGovern climbed steadily through the ranks at AT&T. By the mid-1990s, she was head of the company’s consumer markets division, where she used strategies like giving away free long-distance minutes to reward customers for sticking with the company. A trailblazing female executive, she was twice named one of Fortune’s 50 most powerful women in corporate America.
McGovern left AT&T in 1998, then spent four years at Fidelity Investments, where she was promoted to be the head of the retail mutual fund and brokerage business. Then came six years as a marketing professor at Harvard Business School, where she produced case studies on how companies like Kinkos sold their services and how Hasbro promoted its G.I. Joe brand.
Her academic writings spell out her theory of corporate leadership. “In many organizations, marketing exists far from the executive suite and boardroom,” she and her coauthors wrote in an article for the Harvard Business Review. Companies that make this mistake are doomed to “low growth and declining margins.”
While McGovern was training the next generation of business leaders at Harvard, the Red Cross was providing its own case study of an institution in crisis.
Between 2001 and 2008, the organization went through six interim or permanent leaders, several of whom departed amid allegations of mismanagement and misuse of donated funds. In 2007, the Red Cross board, led by Bonnie McElveen-Hunter — a wealthy Republican donor appointed by President George W. Bush in 2004 — recruited Bush administration official Mark Everson as the CEO who would bring stability to the organization.
Six months later, the board forced Everson out after the affair with his subordinate, touching off yet another round of embarrassing headlines.
McGovern, selected after a global search by a headhunting firm, was seen as a candidate who would bring private-sector methods to the nonprofit. “Isn’t it great that we have someone that really has had that business expertise in developing and working with a brand and recognizing the power of it?” McElveen-Hunter told the Washington Post at the time.
At the Red Cross, colleagues say, McGovern’s leadership style has been characterized by both a hands-on mastery of details and a commitment to the charity’s mission, even in the face of personal challenges. She is a two-time cancer survivor and in the aftermath of the 2010 earthquake, traveled to Port-Au-Prince, Haiti, just days after learning that her breast cancer had returned.
Bonnie McElveen-Hunter, who has chaired the Red Cross board since 2004, said she strongly supports CEO Gail McGovern, in contrast to the views of many in the rank and file. A survey of employees this year found just 35 percent responded favorably to the statement, “I trust the senior leadership of the American Red Cross.” (Sam Deitch/BFA/AP)
The organization McGovern inherited had serious financial problems. It had been forced to borrow money to meet its payroll and, by 2008, the Red Cross was losing about $20 million a month, according to a former official.
The red ink reflected some longstanding weaknesses in the Red Cross’ structure.
Congress chartered the charity in 1900 to deliver disaster relief to Americans in need but has never appropriated anywhere near the money it costs to do so. (The special relationship with the government does bring some valuable benefits, including prime Washington real estate for its headquarters, which the Red Cross got for free, and frequent public encouragement from the president to donate during disasters.)
The charity raises about $500 million annually with gifts that range from $10 sent by text message to multimillion-dollar donations from blue chip companies like Walmart and General Electric. Donations balloon in years with major disasters like the Haiti earthquake, but the money typically comes with a catch: Most of it is earmarked only for the headline-making disaster.
This leaves the organization scrambling each year to fund the little-publicized bulk of its mission — aiding ordinary Americans afflicted by everything from house fires to floods to more routine storms.
Soon after she joined the Red Cross, McGovern recruited executives who had worked with her at AT&T and Fidelity to address the weaknesses. Working out of the Red Cross’ headquarters on the National Mall, nicknamed the Marble Palace, they drew up plans for what amounted to a corporate turnaround that would touch every aspect of the charity’s finances and operations.
Some of the changes were long overdue.
Each of the Red Cross’ more than 700 chapters had its own bank account, tracked its own volunteers, and ran its own computer system. McGovern hoped to realize considerable savings by consolidating these back-office functions, creating what she dubbed “One Red Cross.”
She also got to work cutting costs: there was a round of layoffs; she killed the charity’s generous pension program and suspended matching contributions to employees’ retirement accounts. On the revenue side, she successfully lobbied Congress for a one-time, $100 million appropriation to close the budget deficit.
The Red Cross board had asked McGovern to eliminate the operating deficit in two years. By 2010, she had done that, an accomplishment she described as “an important turning point.”
In February 2011, McGovern and her executive team gathered Red Cross leaders from around the country to a meeting at Nashville’s Gaylord Convention Center. There, they outlined a five-year plan aimed at securing the charity’s financial future.
The plan, laid out in brightly colored PowerPoint slides, envisioned across-the-board improvements in performance. It projected a billion-dollar jump in revenue, powered by expanded fundraising and growing profits from fees paid for CPR classes, swimming lessons and training materials.
The Red Cross’ chief of fundraising, a former colleague of McGovern’s from Fidelity, told the assembled officials that the organization should attract far more than the $520 million in donations it was bringing in annually. “Strength of brand,” his PowerPoint said, “justify results in $1-2 billion range.”
Another former colleague of McGovern’s from her AT&T days, Jack McMaster, gave “one of the great rah-rah speeches of all time” in Nashville, as one official in attendance recalled. Hired by McGovern to supercharge the Red Cross’ CPR and training business, McMaster unveiled a plan to grow the unit from a $150 million-a-year business to a juggernaut with annual revenue of nearly $700 million.
McMaster had a history of bold predictions.
After leaving AT&T, he took a job in 1999 as CEO of a Dutch telecom company called KPNQwest. In just a few years, he had run it into what Reuters called a “spectacular collapse,” prompting a bankruptcy, a storm of lawsuits, and comparisons to Enron. Just months before the company went under, McMaster publicly boasted that it was poised for dramatic growth.
Despite the blowup, McGovern hired him several years later, praising McMaster to Red Cross staff as a master marketer and a trusted former colleague.
McMaster laid out how the CPR unit would attract more customers while at the same time hiking prices for classes and training materials in CPR, swimming, and babysitting. He believed the Red Cross brand justified higher prices than were being charged around the country.
Customers voted with their wallets. When prices rose, many simply switched to lower-cost providers.
“We thought if we raised prices, American Heart [Association] would probably raise prices, and life would be good,” McGovern said at a 2013 employee town hall meeting, referring to the Red Cross’ competitor in the CPR class business. “Didn’t happen.”
Rather than revenue increasing over 350 percent, as the plan imagined, it has actually fallen since McGovern became CEO.
Red Cross CPR Business: Projected Growth vs. Actual Revenue
Projected Revenue
Actual Revenue
Sources: Internal Red Cross growth projection and public financial statements
“A halfway competent market analysis would have told you that the bulk of our business was in selling to small businesses who viewed us as a business expense,” recalled one former chapter executive director. “When the massive price increases arrived, it was too much and customers bailed.” Many of those who taught classes — including volunteers who did the work for free — quit after being turned off by headquarters’ poor communication and insistence on centralized control.
Amid layoffs in the division last year, bonuses given to McMaster and his team raised eyebrows within the Red Cross, a former headquarters official said.
In a statement, the Red Cross said the bonuses were appropriate because the division hit “strategic milestones” including establishing “a national tele-service platform and national sales and service delivery models.”
“The compensation plan is tied to the achievement of those goals,” it said.
The statement further said the division’s decline in revenue was due in large measure to the decision to introduce “free digital downloads of all course materials, which greatly increased distribution of health and safety materials but depressed revenues from book sales.” It also provided figures showing that, while the division is still losing money, the size of the loss fell significantly in fiscal 2015.
A key driver of the Red Cross’ current financial problems is its struggling blood operation, present and former officials said.
The drop in demand for blood in the past several years has strained the entire industry, in which the Red Cross is the biggest player. But the charity’s share of the market has also shrunk over the course of McGovern’s tenure. Exact numbers aren’t public, but the Red Cross’ annual reports showa decline since McGovern took over.
The problems were partly due to the Red Cross’ failure to quickly adopt the industry’s updated labeling of blood products. McGovern acknowledged the issue in a town hall meeting for employees in 2012. “It’s very hard for us to win market share even on a price basis when you don’t have the industry standard for scannings,” McGovern said, according to audio obtained by ProPublica.
Her team also struggled to manage the switch to a new software and hardware system called BioArch. That project began before McGovern arrived but its most important component — the transition to standard labeling — was not completed until five years into McGovern’s tenure.
Even after an effort to cut costs in recent years, an internal Red Cross projection warns that losses from the blood business could reach $300 million annually by 2020 if the charity doesn’t reduce expenses further.
“They should have made these corrections a few years ago when the early signs of this market correction were appearing,” said one former senior official in the blood division. “They didn’t move fast enough.”
In a statement, the Red Cross said the decline in the overall blood market has hurt the entire industry, “causing many blood bankers to get smaller, consolidate, or, in one case, file for bankruptcy. The Red Cross has worked to restructure and right-size our biomedical operations. We have done this without risking our ability to provide quality, lifesaving blood products and without moving too quickly to a lower-cost operation.”
The statement also said that BioArch was a “massive, multi-year undertaking” and that McGovern had committed “the required time and resources to implement this large and complex new system successfully.”
Fundraising is another reason the Red Cross is falling short of its financial targets.
Soon after she became CEO, McGovern told an interviewer she wanted to bring in more donations by making “this brand a cult that everyone in America just wants to be a part of.”
The charity relies on heart-rending disasters like Sandy or the Haiti earthquake to drive in donations to support its daily work. While most of the disaster-driven donations are earmarked, they are usually accompanied by some increase in unrestricted contributions. Internally, this is known as the “halo” around a major disaster; documents refer, for example, to the “Haiti Halo.”
At a town hall meeting in 2013, McGovern said the charity had solved the problem of raising money in years without a big disaster. Referring to her fundraising team, she said: “If a tree falls down, they go, ‘Look at this poor tree, we need funds.’”
The Red Cross said in a statement that donations were up 14 percent outside of major disasters, but it declined to provide details for that figure, including over what period the increase occurred.
Internal documents paint a different picture, showing the Red Cross remains hugely dependent on major disasters to propel fundraising. In an email to executives in 2014, McGovern said that fundraising “fell short of our target in a year without any huge national disasters.”
Last month, McGovern gave a PowerPoint presentation at a town hall for employees that stated: “Fundraising revenue declined due to lack of huge disasters.”
And in a new edition of the Chronicle of Philanthropy’s annual ranking of which charities raise the most dollars, the Red Cross fell to 21st place — its lowest position since the survey began in 1991. The Red Cross explained the drop by saying, again, that fundraising had suffered without a major disaster like Superstorm Sandy.
When McGovern was hired as CEO, there were over 700 Red Cross chapters across the country. Today, there around 250, though some former chapter offices stayed open even as they were folded into other chapters. The Red Cross declined to say how many offices it closed.
Over the course of McGovern’s tenure, the number of paid employees fell from around 36,000 to around 23,000 and the Red Cross today spends several hundred million dollars less a year than it did in 2008. (Most of the staff cuts were from local chapters, not the blood business, though the Red Cross declined to provide a breakdown.)
It’s difficult to quantify the effects of these cuts, and in some areas services have not been affected. But interviews with dozens of Red Cross staffers and emergency management officials around the country document a pullback from many towns and cities, particularly in rural areas.
Gail McGovern recruited so many former telecom colleagues to join her at Red Cross headquarters in Washington that some longtime employees started referring to the charity as the “AT&T retirement program.” (Win McNamee/Getty Images)
When Rick Tuggle, the chairman of the board of directors of the Red Cross’ Nebraska Panhandle chapter, got word in 2011 that the chapter would be shuttered, he felt betrayed. An executive at a small bank in Scottsbluff, Tuggle had spent years building up the chapter, recruiting donors and volunteers who responded to home fires in a 44,000-square-mile area in the west of the state.
Tuggle and the rest of the local board fought the decision, questioning why their financially self-sufficient chapter was being closed. The chapter’s full-time executive director was told a visit from a regional executive was a performance review, only to be laid off and escorted out of the office in tears, according to Tuggle.
“We lost volunteers, we lost local support, no one comes and helps these people,” said Tuggle, who is also a longtime donor. “They lost my money for the rest of my life. I was so frustrated with the Red Cross. I couldn’t believe how far from their charter they had gone.”
The United Way of Western Nebraska pulled funding, fearing that its money would no longer be used locally. The nearest chapter is now four hours away, in Grand Island. A Baptist church is helping families displaced by home fires, filling a gap left by the Red Cross cuts, said Tim Newman, the emergency management director in Scottsbluff.
“Our chapter office now covers 62 of the 93 counties in Nebraska. That is two‐thirds of the state!” Newman said. “That is like a waiter going from serving four tables to twenty‐five tables. What is going to happen to your quality of service?”
In a statement, the Red Cross said the chapter cuts were intended “to further reduce costs and improve collaboration in the field.”
“Many of these changes were difficult, especially when they cost the jobs of dedicated, hard-working members of the Red Cross family,” the statement said. “We did everything possible to minimize layoffs by reducing costs in other ways.”
In West Virginia, where several chapters have been shuttered, emergency management officials said the group’s response to recent disasters has been anemic. After a recent water shortage caused by a chemical leak, the charity declined to provide any help to residents, the Register-Herald of Beckley reported. Local officials described that as business as usual for the charity. When a tornado hit in the southern part of the state, the Red Cross’ inadequate response left scores of victims without enough food, according to the newspaper.
In Northern California last year, the Red Cross shuttered the Napa County chapter and laid off disaster relief staff, according to an internal PowerPoint presentation. Then, in September, a drought-fueled fire swept through the area, consuming more than 75,000 acres and 1,200 homes.
Because of the issues with the Red Cross’ shelter, nearly all of 1,000 displaced people at the Napa County Fairgrounds — including the elderly, new mothers and children, and anyone with a pet — ended up sleeping outside in tents, cars or RVs. The problems were first reported by the Press Democrat newspaper.
CEO Gail McGovern hired a former colleague from AT&T to vastly increase the revenues of the charity's CPR and training division. But the plan backfired as customers switched to less expensive providers. Here, then-Arizona Cardinals quarterback Matt Leinart demonstrates CPR at a Red Cross event in 2008. (Neilson Barnard/Getty Images)
“There was a woman who was 92 and she was outside because she had a dog,” said Viri Agapoff, a founder of an ad-hoc volunteer group that arose to respond to the Valley Fire. “She had already gone through so much trauma. Now, on top of that, she’s outside.”
Local officials were furious. They say the Red Cross showed up lacking basic supplies such as Band-Aids, portable toilets, and tarps to protect against the rain. Instead the group’s volunteers handed out Red Cross-branded bags of items that weren’t urgently needed like lip balm and tissues.
The Red Cross responders were inexperienced and, according to residents, not enough of them spoke Spanish, the language of many of the fire victims.
After three days of problems, Napa County Fairgrounds CEO Carlene Moore said she went to the Red Cross official in charge and said, “I am relinquishing you of your duties and responsibilities. I’m taking over the site.”
Residents, not Red Cross workers, were doing the necessary work of supplying tents, food, and other basic needs. After fielding complaints from donors, the city of Calistoga set up its own relief fund so people had an alternative to the Red Cross.
In a statement, the Red Cross pointed out that the Valley Fire was extremely fast-moving and “this made the first few hours and days of our response particularly difficult, and we recognize we were not as well-coordinated at the start as we could have been.”
“Today, the Red Cross continues to work with local Long-Term Recovery Groups in Lake and Calaveras Counties to develop and execute long-term plans to help victims of the wildfires recover,” the statement said.
Linda Davis, CEO of the Center of Volunteer and Nonprofit Leadership, recalled driving to the Napa fairgrounds every day, seeing signs along the highway asking for donations to the Red Cross. On Wells Fargo ATMs, there was an option to donate to the Red Cross.
“They were everywhere,” she said. But after the fire response, she said, “I view them more as a fundraising and marketing organization than a disaster relief or charity group.”
McGovern has spoken often of her goal to make the charity “the best place in the country to volunteer” — all the more important because her team wants to sustain services levels by replacing paid employees with more volunteer labor.
But much like the organization’s paid staff, many of its volunteers appear deeply disillusioned. An internal survey obtained by ProPublica found volunteers around the country had a satisfaction rate of 32 percent this year — down 20 points from last year.
Driving the alienation, longtime employees and volunteers say, is a gulf that has opened up between McGovern’s executive suite and the rank and file who have spent decades in the mission-focused nonprofit world.
She has surrounded herself with a tight-knit group of former telecom colleagues, they say. “They’re all people from the period when AT&T imploded,” said one former senior official. “The priorities seem to be a reflection of what that team is comfortable with: sales and marketing.”
An internal assessment previously reported by ProPublica and NPR said national headquarters’ focus on image slowed the delivery of relief aid during Hurricane Isaac and Superstorm Sandy. Officials engaged in “diverting assets for public relation purposes,” according to the assessment.
When McGovern was hired in 2008, the Red Cross had just done a round of layoffs and she expressed hope it would be the last. But as cuts kept coming, staffers were repeatedly told to do more with less.
The discontent was often intensely personal.
“I have agonized over posting my thoughts for many months now … because I truly love the American Red Cross, and I am so proud of my involvement with such a great group of people,” wrote longtime volunteer Mark Million in a September post on a Facebook group for Red Cross volunteers. “It is time for our leadership to go. We have squandered a century of public trust, good will and support in ten years.”
A graphic from a 2010 internal memo exhorting Red Cross staff to do more with less.
That and other critical posts later disappeared from the Facebook page. Moderator Ryan Kaltenbaugh reminded participants that the group was intended to be “a POSITIVE forum sharing ideas, stories, pictures, links, videos and more across our great country.
“[P]lease (please) refrain from posting your negative personal views,” he continued.
Becky Maxwell of Loganville, Georgia, describes herself as a “diehard Red Cross person for 25 years.” In March, after her frustrations built up for several years, she finally resigned from her volunteer position. “McGovern has fired almost all of the trained and experienced volunteers and staff,” Maxwell told ProPublica, replacing them “with people who have absolutely no knowledge of what the Red Cross is or does in a disaster. Not only is she setting these people up to fail but she is compromising the service delivery that is so important to the clients.”
While McGovern has angered many employees and volunteers, she has maintained the support of the constituency that matters most for her job: the Red Cross’ board of governors, which hires and can fire the CEO. The board includes current and former executives from Goldman Sachs, Eli Lilly and Home Depot along with the chairwoman, McElveen-Hunter, a successful businesswoman and former ambassador to Finland.
McGovern has warm personal relationships with board members, recalls Beverly Perez, a former headquarters staffer who helped prepare for board meetings. “If at the last board meeting someone’s mother was sick, at the next board meeting three months later McGovern would ask, ‘How’s your mother in the hospital?’”
In a recent letter to ProPublica, McElveen-Hunter praised McGovern’s “extraordinary leadership” in taking over a troubled organization.
“Over the last seven years, Gail — a recognized business leader with proven success running large organizations — has worked tirelessly to develop and direct the plan of action that has reduced expenses, strengthened service delivery and brought the Red Cross into the 21st century so we can reach more people and continue to fulfill our mission for decades to come,” McElveen-Hunter wrote.
If you have information about the Red Cross — or any other tips — please email justin@propublica.org.
Additional reporting by Nina Martin, Derek Kravitz, and Andrea Hilbert. Production by Emily Martinez.
Justin Elliott has been a reporter with ProPublica since 2012, covering politics with a focus on money and influence. He was previously a reporter at Salon.com and TPMmuckraker and news editor at Talking Points Memo. He was also a fact-checker at Mother Jones.
As the Senate debated a proposal earlier this month that would have barred gun sales to people on the government’s terrorism watch lists, Republicans decried the lists as unfair, unreliable and un-American. “There’s no due process or any way to get your name removed from it in a timely fashion,” Sen. Marco Rubio told CNN. “This is not a list you can be certain of,” Jeb Bush said. Mike Huckabee asserted that some people end up on the no-fly list due to “suspicion, not necessarily even so much as probable cause.”
Rahinah Ibrahim, a Malaysian architect with a doctorate from Stanford, knows from personal experience that they have a compelling point. Ibrahim is the only person since 9/11 to file a court challenge that ultimately removed her name from the watch lists. It took her almost a decade to prevail in court and even that victory has proved phyrrhic. While a federal judge agreed that her inclusion on the no-fly list was groundless, she remains unable to obtain a visa that would allow her to visit the United States even to attend academic conferences. A close look at her case by ProPublica provides dramatic evidence of what was argued this month in Washington: It is indeed remarkably easy to get on the list and nearly impossible to get off.
The questions of terrorism lists and visas appear likely to take center stage in the coming months. While the Senate rejected the amendment barring gun sales, Connecticut’s governor imposed just such a ban on a threat that is more theoretical. Between 2004 and 2014, more than 2,000 people on the government’s watch lists purchased firearms in the United States, according to a study by the Government Accountability Office. Questions are also emerging about how Tafsheen Malik, one of the perpetrators in the San Bernardino terrorism attack, managed to get a visa to join her husband despite her pro-jihadi postings on social media.
Taken together, the two cases offer a disturbing look at the ability of U.S. authorities to effectively and fairly guard the border.
Ibrahim’s saga began on Jan. 2, 2005. A devout Muslim, she got up before dawn and said her morning prayers. A friend drove her up Highway 101 from San Jose to the San Francisco International Airport. She was booked on United Airlines Flight 41. Ibrahim planned a stopover in Hawaii, where she would deliver a paper at a prestigious conference, before continuing to Malaysia.
The 44-year-old mother of four felt good about her forthcoming trip although she was still in pain from an emergency hysterectomy months earlier. She had just completed four years of demanding course work, while also working as a volunteer at the Stanford hospital. She had just passed her oral exams, a considerable accomplishment for someone who had grown up in rural Malaysia and not been out of the country until she was 18.
When Ibrahim, wearing a hijab that allowed not a strand of her brown hair to show, reached the counter, the ticket agent looked at her reservation and summoned a supervisor. Soon, Ibrahim saw two San Francisco police officers striding purposefully through the terminal. After speaking with the supervisor, the officers told Ibrahim that she was under arrest, handcuffed her and marched her through the crowded terminal to a police car that drove her to the airport police station. Inside, as she would later recall, she found herself in a deeply uncomfortable setting, “a handcuffed Muslim woman surrounded by three male policemen.” The officers locked Ibrahim in a cell where she sat on a cold, stainless steel bench and cried, the scar across her abdomen aching.
Ibrahim had no idea why she had been detained. She explained to the police that two FBI agents interviewed her just nine days earlier and she showed them the business card that one of them, Kevin Kelley, had given her. Kelley was a member of the South Bay Joint Terrorism Task Force in San Jose. He had asked about her academic work (her area of concentration at the engineering school was affordable housing); her husband (he’s very progressive and had allowed her to pursue her career, something most men in her conservative country would not do) and about Jemaah Islamiyah, a terrorist group created in Malaysia but best known for bombings of night clubs in Bali. Ibrahim told Kelley she didn’t know much about Jemaah Islamiyah beyond headlines on the Internet, but that she was a member of Jemaah Islam Malaysia, a professional organization for people who had studied in the United States and Europe and encouraged the practice of more moderate forms of Islam.
After she had been detained at the police station for more than two hours, an official from the Department of Homeland Security, Lee Korman, showed up. He apologized to Ibrahim for her arrest and told her that she had been removed from the no-fly list and was now free to fly. It was the first time Ibrahim knew she was on the no-fly list.
Before 9/11, there were perhaps a dozen people worldwide on America’s no-fly list. The numbers soared after the attacks and by 2013 there were some 47,000 individuals on the list, according to a Justice Department audit. Grandmothers, infants, honorably discharged veterans and the disabled have found themselves barred from boarding. A few notorious cases made headlines, such as when Sen. Edward Kennedy was stopped several times — because, it turned out, there was a “T. Kennedy” on some agency’s terrorist watchlist. Kennedy’s name was, of course, removed. For tens of thousands of others, it was not so easy.
The no-fly list is part of the post 9/11 security apparatus, which is a labyrinth of euphemisms and acronyms. The effort is coordinated by the Terrorism Screening Center (TSC), a multi-agency group of officials managed by the FBI in coordination with the CIA. All federal departments and agencies are responsible “for collecting information about potential terrorists or attacks’’ and sharing that information with the FBI or the CIA, either of which can “nominate” individuals for inclusion in the Terrorist Screening Database (TSDB).
From that database, names are passed “downstream” (in bureaucratic jargon) to the so-called “frontline” agencies — for example, to the Transportation Security Agency (TSA), which administers the no-fly list and to the State Department, where the names are put into the Consular Lookout and Support System (CLASS), which American consular officers around the world call up when a foreigner applies for a visa.
State and local law enforcement officials have access to the database, which now has some 700,000 records. A police officer pulling over a driver for speeding can check the name on the driver’s license against the TSDB. In addition, the lists are shared with more than 20 foreign governments.
An FBI agent need only have a “reasonable suspicion,” to “nominate” someone, the FBI guidelines say. It is supposed to be more than “a mere guess or hunches.” But, as Huckabee noted, the standard is well short of the probable cause the police need to arrest a person.
Ibrahim was born in 1969, the second of five children, into modest circumstances, her father a mid-level civil servant. She inherited school uniforms and textbooks from her older sister, and then passed them on to her younger one. Neither of her parents had finished high school, and they pushed their children to get an education.
Image may be NSFW. Clik here to view.Rahinah Ibrahim, right, with her daughter Rafeah Mustafa Kamal, at the Park Royal Hotel in Kuala Lumpur. This photo was taken at a conference of the International Association for the Study of Traditional Environments, which Rahinah co-chaired. (Raymond Bonner for ProPublica)
Ibrahim had mild dyslexia and was something of a loner in school who found solace in drawing. She finished first in her high-school class, and was one of 25 students nationwide selected to study in the U.S. She had been on an airplane only once before, a small one, to return home from boarding school when her father died. When the flight stopped for a layover in Hong Kong, Ibrahim got separated from the rest of the group. Another student in the honor’s program, Mustafa Kamal, the son of primary school teachers in a small rural town, volunteered to find her. Kamal would continue chasing Ibrahim, changing her life — romantically, unconventionally, profoundly. Ibrahim enrolled in the University of Washington to study architecture; Kamal studied civil engineering at California State University, Long Beach. After a long-distance, telephone romance, they married in the summer between their third and fourth years. Ibrahim graduated with honors in 1984 after the birth of the couple’s first child and moved to Southern California to study for a masters at the Southern California Institute of Technology in Santa Monica.
Kamal assumed primary responsibility for domestic chores. “I was a stay-at-home dad,” he said. He was becoming Americanized. Evenings he watched the ABC News with Peter Jennings, and he was such a diehard Los Angeles Lakers fan that he and his friends would adjust the time of their evening prayers so they could watch the games on television.
“I always feel in love with America,” Kamal told me in an interview in Malaysia. “We consider America our second home.” The years in the United States had a profound impact. “I would say that we grew up in the States. It changed our perspective on the world.” One of his favorite television programs was Meet The Press, which he liked to watch “just to see how these people argue.” On his Facebook page, Kamal lists Henry Kissinger’s “Diplomacy” as one of his “likes.”
Living in America also changed their approach to Islam. They began to practice their religion in a more Western context. “We call it progressive Islam,” Ibrahim told me, during the only interview she has given about her experiences.
After Ibrahim got her masters degree, the family returned to Malaysia and she launched her career as an architect. At the age of 32, and pregnant with her fourth child, Ibrahim became the first female lecturer at University Putra Malaysia, a 7500-acre campus 12 miles south of downtown Kuala Lumpur She was soon intellectually restless and applied to Stanford, surprised when she was accepted.
In 2000, Ibrahim returned to the U.S. with an F1 student visa. Kamal remained in Malaysia. He was the managing director of an environmental consultancy business and had become deeply committed to international relief work. Kamal traveled to Palo Alto every three months to visit his wife.
On March 10, 2005, 10 weeks after her encounter at the San Francisco airport, Ibrahim was set to fly from Malaysia to Stanford with plans to put the final touches on her doctoral thesis. At Kuala Lumpur’s gleaming, modern airport, when she reached the Cathay Pacific counter, she put her bag on the scale — it was filled with presents for patients at the Stanford hospital where she had worked as a volunteer. A supervisory agent asked her to step out of line, and she watched as he made and received calls on his mobile phone. She was puzzled. Korman had told her she had been taken off the no-fly list; she gave Korman’s card to the supervisor. At 9:25, five minutes before the gate was to close, the agent told Ibrahim that he had spoken with the American embassy. Her visa had been revoked.
She was angry and perplexed. Why would the State Department do such a thing?
And so Ibrahim began the laborious process of trying to clear her name of an accusation about which she knew nothing.
She filled out the form for people who feel they are wrongly on the no-fly list. Called the Travel Redress Inquiry Program report (TRIP), it provides little in the way of relief. People get to lodge their complaints. When foreign nationals like Ibrahim are involved, the government declines to confirm or deny their presence on any lists but sends a form letter that says “applicable records” have been reviewed. The letter assures travelers that corrections to the records have been made if “warranted.’’
In January 2006, a year after Ibrahim was shackled in San Francisco, she filed a lawsuit in federal district court in San Francisco against a litany of federal agencies. She was not asking for monetary damages, or compensation of any sort. She only wanted her name removed from the no-fly list and any other terrorism databases.
Ibrahim was represented pro bono by a small law firm in San Jose, California, McManis Faulkner. “I wanted this case in a heartbeat,” said James McManis, whose legal hero is Clarence Darrow.. “What they did to this woman was just outrageous.”
The odds against Ibrahim were beyond astronomical. No one had ever prevailed in a legal challenge of the watch lists. The case was assigned to Judge William Alsup, a demanding, hard-working jurist who began his trials at 7:30, about two hours before his colleagues on the federal bench.
The government moved to dismiss, arguing that by law, challenges to Transportation Security Administration (TSA) rulings must be filed before the U.S. court of appeals, not the district court. Alsup agreed. Case dismissed.
Ibrahim’s lawyers appealed to the Ninth Circuit. The lead lawyer at the time, Marwa Elzankaly, was only three minutes into her argument when Judge Alex Kozinsky interrupted, and he didn’t let up, peppering her with questions. Kozinsky was the court’s chief judge, a gregarious, outspoken libertarian-leaning intellectual. Elzankaly stood at the podium, pen in her right hand, scribbling notes on a yellow legal pad, answering the questions with impressive poise.
It wasn’t as easy for the Justice Department lawyer. If the court had no jurisdiction, how was the plaintiff to get off the no-fly list, Kozinsky wanted to know. “If not here, where? If not now, when?” said Kozinsky, whose parents were Holocaust survivors. “It’s from the Talmud, you know.” The government lawyer was unaware of the saying.
The appellate court ruled in Ibrahim’s favor, 2—1. The Terrorist Screening Center actually determined who was on the no-fly list, not the TSA, Kozinsky wrote for the majority.
The case was sent back to Alsup for trial.
The Justice Department again moved to dismiss. Ibrahim could not avail herself of constitutional protections because she was not a citizen, nor did she live in the country, the government argued. Again, Alsup agreed. “She is an alien who voluntarily left the United States and thus voluntarily left her constitutional rights at the water’s edge,” he wrote, and dismissed the case. Again Ibrahim appealed. And again, the government lost, 2—1.
Ibrahim had a “significant voluntary connection” with the United States — her time at Stanford; continuing discussions with professors; plans to return — and that allowed her to raise constitutional issues, the appeals court said.
The judges were troubled by the watch list system. The Terrorist Screening Database had grown by over 700 percent since its inception, and 20,000 records were being added a month, the court noted. The judges found that the implementation of the no-fly list was problematic. “Tens of thousands of travelers have been misidentified because of misspellings and transcription errors in the nomination process, and because of computer algorithms that imperfectly travelers against the names on the list,” the majority wrote.
Meanwhile, the national security bureaucracy seemed uncertain whether Ibrahim was or was not a terrorist according to the documents unearthed by her lawsuit.
In December 2005, 11 months after Homeland Security agent Korman told Ibrahim that she had been removed from the no-fly list, Ibrahim was put on the list of terrorist suspects that was sent to Australia (TACTICS), and to Canada (TUSCAN). (She had never visited either country, and had no plans to.)
In September 2006, she was completely removed from the Terrorist Screening Database, with federal officials concluding there was no “nexus to terrorism’’ involved in her case.
Six months later, in March 2007, Ibrahim reappeared in the database.
Two months after that, she was again removed.
The reasons for all these moves remain unknown to Ibrahim, or her lawyers.
In 2009, Ibrahim applied for a visa so that she could go to San Francisco to work with her lawyers. When she went to the American embassy in Kuala Lumpur to pick it up, a consular officer slid a “Dear Visa Applicant” form letter through a slot in the bullet proof glass. Somehow, she was back on the list again.
“This office regrets to inform you that your visa application is refused because you have been found ineligible under the following section(s) of the Immigration and Nationality Act.” There was a check in the box beside “212(a)(3)B.” There was no explanation of what the section is. Ibrahim asked the consular officer. “(Terrorist),” he wrote on the form.
For the first time, Ibrahim knew that the United States government considered her a terrorist.
Ibrahim’s tribulations with the American government contrasted with her triumphs at the Malaysian university. She became a senior lecturer in November 2006; associate professor six months later; full professor in 2011, when she was named dean of the faculty of architecture and design. Her rapid ascent generated some grumbling, envy and enmity among her colleagues, virtually all men. She was acquiring an international reputation in the field of affordable housing — the list of academic papers in her c.v. ran to more than 10 pages — and she was invited to conferences around the world. The country she most wanted to visit — the United States — would not admit her. The Academy of Sciences of Malaysia collaborated with the New York Academy of Sciences, but she couldn’t attend meetings when they were in New York. She wanted to explore the establishment of a joint research center with Stanford, which would have been a coup for her university and as well as for the country.
Ibrahim’s resolve to clear her name was matched by the government’s determination that she never know anything that might help her, or the public, understand why she was considered a terrorist, why she had been on the no-fly list, why she had been denied a visa. In one legal brief, the Justice Department even redacted the names of 13 law cases, two statutes, one Federal Rule of Civil Procedure, as well as several pages of the argument.
“This is too hard to swallow!” Alsup wrote in one ruling. But swallow it he did and the black ink remained in place. The vast majority of documents in Ibrahim’s case — briefs, motions, letters to the judge, hearing transcripts — contain redactions, from a word or two, to a few paragraphs, to entire pages. This makes it impossible to fully assess the government’s claim that it had reasonable grounds to put Ibrahim on the terrorist list or whether she received due process.
Attorney General Eric Holder Jr. filed an affidavit with the court broadly summarizing the evidence the government was withholding on the grounds that it contained “state secrets,” and public release would harm national security. The government’s claim was sweeping, covering any information that “could tend to confirm or deny” whether Ibrahim “was or was not” the subject of an FBI investigation; “any information (if any) obtained by the FBI from the U.S. Intelligence Community” relating to the reasons for any investigation of Ibrahim “or her associates”; and “information related to whether court-ordered searches or surveillance, confidential human sources, and other investigative or operational sources and methods were used by the FBI.”
Ibrahim’s lawyers were skeptical. Take the matter of whether Ibrahim had been the subject of a terrorism investigation, which Holder had asserted was a “state secret.’’
“That’s not a secret. It’s not a secret,” Elizabeth Pipkin who had taken over as lead lawyer when Elzankaly married and moved back to Egypt, told Alsup during a hearing. And she had the documents to prove it. Kevin Kelley, FBI agent who interviewed Ibrahim in December 2004, had prepared a report. Ibrahim’s lawyers had obtained it through a request under the Freedom of Information Act.
“You have a document there you want to show me that you got from where, a FOIA request?” Alsup said.
Yes, said Pipkin, who was in her mid-thirties but already arguing what older colleagues told her was likely to be the biggest case of her career.
Alsup ruled that Kelley’s interview report was admissible. Pipkin then directed his attention to the number “315” written on the report. The bureau’s File Classification List said “315” was the designation for “International Terrorism Investigations.”
”Where did you get your hands on it?” Alsup asked of the classification list.
“We got it from the FBI’s web site,” Pipkin answered.
Alsup, astonished, admitted it into evidence.
At 7:30 a.m. on Dec. 2, 2013, one month shy of nine years since her ordeal at San Francisco Airport, Ibrahim finally got her day in court. She wasn’t there, however. She couldn’t get a visa.
In Courtroom 8 on the 19th floor of the federal building in San Francisco’s seedy Tenderloin district, Alsup entered and took his seat, the American flag on his right.
On the first day of the trial, the lawyers and Alsup embarked on a lengthy and contentious discussion about what could be made public, what documents would be sealed, when he would have to close the courtroom. Alsup believed passionately that judicial proceedings should be open. “It’s not so much to protect individual litigants,” he said during one exchange with the lawyers. “It’s to protect the public to have access to what is going on in their public institutions, so that the public will have confidence that decisions are being made in a fair and just and evenhanded way.” Still, at the government’s request, he closed the courtroom at least 10 times during the trial, and ruled in favor of the government in nearly all of its requests to redact or seal the record
Even when the courtroom was open, only a handful of spectators and one or two journalists were there to witness a bizarre case, one that bolsters assertions that due process is lacking.
The Justice Department’s opening argument — the portion that wasn’t delivered behind closed doors — reads like “Alice In Wonderland” meets Kafka. “Even if Professor Ibrahim were in the TSDB, a fact that we can neither confirm nor deny on the public record, the government cannot present an explanation for the placement” because it is a state secret, a Justice Department lawyer told Alsup. The government “cannot even respond to Professor Ibrahim’s accusations by confirming or denying whether they are correct,” she added.
The pivotal moments of the five-day trial came when two FBI agents, Debra Lubman and Kevin Kelley, testified. At the government’s request, Alsup closed the courtroom. Every word of Kelley’s testimony is blacked out in the publicly released trial transcript. It is possible, however, to know some of what Lubman and Kelley testified by piecing together un-redacted snippets from other documents in the case, including Alsup’s opinion.
Under questioning from one of Ibrahim’s lawyers, Christine Peek, Kelley testified that five weeks before he had interviewed Ibrahim, he had filled out the FBI’s “Violent Gang and Terrorist Organizations File Gang Member Entry Form.”
Using the boiler-pale language on the form, Kelley said he had opened the investigation on the basis of information from “an informant or individual of unknown reliability” that Ibrahim “frequents a documented group’s area, associates with known group members, and/or affects group dress, hand signals, tattoos, or symbols.”
On the form, there was a vertical row of the watchlists, with a box beside each:
Lookout and Support System (CLASS);
Interagency Border Information System (IBIS);
TSA No Fly list
TSA Selectee list;
TUSCAN (shared with Canada)
TACTICS (Australia).
Kelley checked five of the six boxes, leaving blank only “TSA No Fly List.”
How then did Ibrahim’s name end up on the No Fly list?
Kelley testified that he had made a mistake. The form instructed the agent to check the list, or lists, on which he did not want to put the individual. He should have checked the TSA No Fly list and left everything else blank.
On the final day of the trial, during closing arguments, Alsup engaged in an absorbing colloquy with the Justice Department lawyers. He harkened back to the 1950s when “thousands of visas and passports and other things” had been denied to alleged Communists. Often the information on which the denials were based was false, he noted.
He put it in the post-9/11 context.
“Let’s say instead of a Communist, let’s say that the file says this person has contributed money to Al-Qaeda. Is that a good reason to deny somebody, to put them on the watchlist?”
It would be, answered Justice Department lawyer John K. Theis.
“All right,” Alsup replied. “So let’s say it’s completely false; that they never contributed a nickel to Al-Qaeda. In fact, they hate Al-Qaeda. They raise the American flag in their front yard every day. Let’s say it’s totally false. How is that person supposed to know to even send in an affidavit saying ‘I’m not a member — I hate Al Qaeda?’“
He brought up a notorious case from the McCarthy era. “Do you know the story of Robert Oppenheimer and what they did to him?” he asked.
“I don’t, your Honor,” Theis said.
Alsup explained that Oppenheimer, a brilliant physicist, was the head of the Manhattan Project, which developed the atomic bomb. In the early 1950s, he was stripped of his security clearance based on allegations of links to the Communist Party — his wife and brother were members — and of spying for the Soviet Union.
“It was a low point in America’s history that we would have treated a hero like him in the terrible way we did. The information was bogus,” Alsup said. “They suspected him of being a Communist. He was not.”
In 1964, President Johnson awarded Oppenheimer the Medal of Freedom.
Alsup issued his opinion on Jan. 14, 2014.
He found that Ibrahim’s ordeal had been caused by Kelley’s error in filling out the form, an error that had led “to the humiliation, cuffing and incarceration of an innocent and incapacitated air traveler.” It was, he wrote, “a bureaucratic analogy to a surgeon amputating the wrong digit.”
Alsup’s next finding was even more startling.
“Government counsel has conceded at trial that Dr. Ibrahim is not a threat to our national security,” he wrote, describing some of the testimony he had heard while the courtroom was closed. “She does not pose (and had not posed) a threat of committing an act of international or domestic terrorism with respect to an aircraft, a threat to airline passenger or civil aviation security, or a threat of domestic terrorism. This the government admits and this order finds.”
So why then had the government blocked her from entering the U.S.?
Alsup provided a hint to the answer in three sentences, easy to overlook in his 38-page opinion, and carefully crafted so as not to reveal any classified information. Under the Immigration and Nationality Act, there are nine grounds for denying a person a visa. “Some of them go beyond whether the applicant herself poses a national security threat,” Alsup wrote. The judge did not list the nine grounds. But the immigration law is a public document. Eight of the categories apply to the applicant. One does not. The ninth basis for turning down a visa application is if the person “is the spouse” of a foreigner who has engaged in any terrorist-related activity in the preceding five years.
Thus, the basis for Ibrahim’s place on the watch lists would appear to be something the law purportedly abhors — guilt by association, or in this case, by marriage.
Alsup ordered the government to do what it said it could not do. “Given the Kafkaesque on-off-on-list treatment imposed on Dr. Ibrahim, the government is further ordered expressly to tell Dr. Ibrahim that she is no longer on the no-fly list.” Alsup also ordered all federal agencies that subscribe to the TSDB to search their records and remove Ibrahim’s name. Both orders were unprecedented.
Huckabee had said it can take as long as two years for a person to clear their name. It took Ibrahim almost a decade. And she wouldn’t have succeeded without the commitment of McManis Faulkner, which Alsup commended for “standing up to our national government and its large litigation resources,” and for doing so without being paid, “at a time that pro bono representation seems to have taken a second seat to money bono.”
A few months after Alsup’s ruling, I flew to Malaysia to interview Ibrahim. We met at the university. She was wearing a green headscarf with a cut-glass brooch and a traditional Malaysian dress — a brightly flowered knee-length blouse over a matching skirt that reached to her feet. Raihan, her oldest daughter and a newly minted lawyer, set up a computer on the table and plugged it in. Soon, Pipkin was with us, in voice and picture, via Skype. During the two-hour interview, she did not instruct Ibrahim not to answer any questions, or advise her on what to say. (Pipkin was not present during several subsequent interviews with Ibrahim).
Ibrahim had not read Alsup’s opinion, and I told her that her husband might be the cause of her problems. She looked puzzled. “Is that true, Liz?” she asked.
Pipkin explained what Alsup had said. “Putting two and two together,” it would seem to point to your husband, she told Ibrahim.
It appears that Kamal — and by association, Ibrahim — became snared in the U.S. government’s war on terror as the result of his humanitarian activities. His first humanitarian work, including for victims of the tsunami in Indonesia, was with Jemaah Islam Malaysia, the professional organization. Later, he and Ibrahim established their own humanitarian organization, Action Caring Team Malaysia.
Kamal’s altruism is deeply rooted. ”I like to help people because I saw my father helping poor people,” Kamal told me. His father was a primary school teacher in a small, rural village. ”Old shoes, old socks, even old toothbrushes, he gave them to the students.” Kamal has the same impulses. “If I see somebody who is hungry while I am eating, I’ll say ‘come have a seat.’ “
While his wife was at Stanford, Kamal undertook several humanitarian missions to Mindanao, the predominately Muslim province in the Philippines. A civil war had been simmering there for nearly two decades, waged by Muslims seeking independence from, or at least greater autonomy in, the overwhelmingly Catholic country. The war had created more than 200,000 refugees. When Kamal visited for five days in 2003, providing food for widows and orphans, building wells and schools, restoring mosques, the province had become a front in the Bush Administration’s war on terrorism; CIA and FBI agents were all over the place. In addition to the various Muslim liberation groups, Washington covertly sought to obtain information about Abu Sayaff, an organization that had received financial support from Al Qaeda in the mid—90s, but had degenerated into a criminal gang that kidnapped for profit, including several Americans. Above all, Washington was watching Jemaah Islamiyah, the terrorist organization, which was using Mindanao as a training ground.
Former FBI and CIA agents who were working in that area at the time told me that Kamal, by his mere presence in Mindanao doing humanitarian work, would have come to the attention of American intelligence.
There may be another reason Ibrahim ended up on the no-fly list. “Maybe they got the wrong wife,” said an American official who has followed the case closely.
As allowed in Islam, Kamal has two additional wives. It is not something Ibrahim or her husband try to hide. He lists his wives, and posts photos of the families on Facebook. Altogether, Kamal has 13 children. They often gather at Ibrahim’s house on holidays. “We are one big family,” she told me.
Kamal’s third wife, Kurais Abdullah Karim, a Filipina, could also be a cause of Ibrahim’s problems. A lecturer at the International University of Malaysia, Karim, is from Mindanao and is, as Kamal put it, a “humanitarian activist.” In addition to having her own blog, about fashion, and posting regularly on Instagram, she is an unabashed supporter of the Muslim liberation movement in Mindanao. “The Sweetness of Sacrificing for the Sake of Allah: The Life of a Mindanao Freedom Fighter,” was the title of an article she wrote for Milinea Muslim Magazine. (In 2014, the Philippine Government and the secessionist Muslims signed a peace treaty ending more than four decades of civil war.)
Kamal said he has never had any involvement with Jemaah Islamiyah, or any other terrorist organization. Malaysian intelligence and security agencies keep close tabs on Malaysians who go to Mindanao, American and European intelligence officials told me, but they do not have a file on Kamal or Ibrahim. If they did, she would not be allowed to be a professor, let alone dean, at the government university, current and former Malaysian officials said, a conclusion shared by American officials who have worked in Malaysia.
Three months after Alsup issued his opinion, in April 2014, the State Department again denied Ibrahim’s application for a visa to travel to the United States. Explaining that action, the department checked subsection IX of the Immigration and Nationality Act, the spousal connection category, and also the subsection that says visas shall be denied to anyone who “has engaged in a terrorist activity.” This directly contradicted the testimony of the FBI that Ibrahim is not, and has never been, a terrorist threat.
Earlier this year, Ibrahim applied for a visa under a provision in the immigration law that allows the State Department to grant a waiver to individuals who are otherwise ineligible. She wanted to attend a planning meeting for a joint Stanford-University Putra research center, her long-time dream. The State Department delayed and by the time it granted a one-time waiver, it was too late for Ibrahim to attend. The State Department still considers her ineligible under the terrorism category, and she will have to apply again for a waiver should she seek to come to the United States.
As politicians and counter-terrorism officials search for lessons from the recent attacks in Paris and San Bernardino, California, senior officials have called for limits on technology that sends encrypted messages.
It’s a debate that has repeatedly recurred for more than a decade.In the 1990s, the Clinton Administration directed technology companies to store copies of their encryption keys with the government. That would have given the government a “backdoor” to allow law enforcement and intelligence agencies easy access to encrypted communications. That idea was dropped after sharp criticism from technologists and civil liberties advocates.
More recently, intelligence officials in Europe and the United States have asserted that encryption hampers their ability to detect plots and trace perpetrators. But many have questioned whether it would be practical or wise to allow governments widespread power to read encrypted messages.
To help readers appreciate the arguments on both sides, we’ve pulled together some FAQs on a subject that is sure to be hotly debated in the years to come.
Q: Are terrorists really using encrypted messages to plot attacks?
A: There’s mounting evidence that terrorist groups are using encryption, but so does nearly everyone living in modern society. Encryption protects your bank information, prevents your password from being stolen when you log into a website, and allows all e-commerce transactions to take place securely.
In addition, apps that send encrypted text messaging apps through Wi-Fi, such as WhatsApp, Signal and Telegram, have become increasingly commonplace in places where text messaging is expensive.
One piece of evidence that terror networks are using encrypted messages surfaced in a recent issue of ISIS’s Dabiq magazine,where the group listed a contact number in Telegram. Soon after,Telegram shut down many ISIS-connected groups using its service. And earlier this year, a West Point researcher found copies of an encryption manual designed for journalists and activists on an Internet forum linked to ISIS.
Intelligence officials have said that the planner of the Paris terrorist attacks used encryption technology, but police also found that one of the Paris terrorists was using an unencrypted cellphone.
Q: Are Google, Apple, Facebook and Twitter thwarting law enforcement through their use of encryption?
A: In the past few years, Silicon Valley tech companies have added layers of encryption to their cellphones and websites in an effort to assure users that their data is safe from both hackers and spies. That encryption has also made it harder for law enforcement officials to read what is transmitted by those devices.
Last year, Apple made encryption the default setting for iPhones, meaning that all data stored on the device was scrambled. In an open letter announcing the change, Apple CEO Tim Cook wrote, “At Apple, we believe a great customer experience shouldn’t come at the expense of your privacy.”
In congressional testimony this month, FBI Director James Comey said that encryption is now part of “terrorist tradecraft.” He cited an instance in Garland, Texas, in which two terror suspects were arrested before they could execute an attack. “That morning, before one of those terrorists left to try and commit mass murder, he exchanged 109 messages with an overseas terrorist. We have no idea what he said because those messages were encrypted,” Comey said.
Q: But can’t the National Security Agency just crack any code it wants?
A: It’s not clear how much encryption the NSA can break. In 2013, ProPublica and the New York Times reported on a top secret NSA program called Bullrun that was described in internal documents as being able to decrypt “vast amounts of encrypted Internet data.” The program started in 2011 and was the result of “an aggressive, multipronged effort to break widely used Internet encryption technologies.”
Details of the project are not known. But the documents showed that in 2013, the agency planned to spend $250 million dollars to, in part, “insert vulnerabilities into commercial encryption systems.”
Q: I heard that there is a “golden key” that unlocks all encryption. Is there such a thing?
A: Not yet and it’s not clear it will ever exist. The U.S. government has been trying to figure out how to access encrypted data for decades. However, wiretapping a phone call is far easier than creating a backdoor into encryption technology.
Last year, the Washington Post editorial board called for Apple and Google “with all their wizardry,” to “invent a kind of secure golden key” that would allow law enforcement officials to read any encrypted message sent by a suspect.
It would be a tremendous challenge to convince the world’s encryption makers, many of whom live outside the United States, to give American authorities access to such a tool. And it would be an even bigger challenge to keep the master key secret — given that it would immediately become the No. 1 target of every hacker and nation in the world.
To address that issue, a White House working group proposed a split key — where one half of the master key would be kept by the government and the other would be held by the encryption company. But the report noted that this approach would be “complex to implement and maintain.”
Q: Are there less complicated ways to give law enforcement and intelligence officials the access they say they need?
A: The White House working group offered three additional ideas for “backdoors” into encryption. All required manufacturing or software changes by U.S. providers and all involved significant political or technical problems.
One idea raised by the panel called for manufacturers to create a special port on all devices that could only be accessed by law enforcement. Requiring a port would represent a “significant cost to U.S. providers,’’ but could be avoided by installing software that creates “a secondary layer of encryption,’’ the panel said.
Another option would be for telecom providers to slip software that defeats encryption into routine upgrades sent to customers. Such an approach would “call into question the trustworthiness” of American companies’ software updates, and could be easily repelled by technically adept users.
Finally, the working group suggestedthat telecom providers might be ordered to hack into their customers’ devices so that their backup routines would send unencrypted copies of all data to the government.
Q: Will any of these backdoor schemes work?
A: They all have flaws. A big one: Users could easily bypass all of the backdoor options by creating their own layers of encryption.
It’s not clear that compelling American companies to allow backdoors would accomplish much. A significant amount of the encryption software used around the world comes from widely available “open source’’ products. “There may be no central authority” for the government to negotiate with, the White House said in its report.
And even when there is a company to negotiate with, the government has not had luck getting access to encryption keys. Two years ago, for example, the FBI tried and failed to get access to encryption keys from Snowden’s email provider, Lavabit.
Most importantly, the United States isn’t the only country in the world with legal power over technology companies. For example, many cellphones used in the United States are manufactured in China, which could also demand backdoor access for its intelligence and law enforcement authorities. The White House report warns that “any U.S. proposed solution will be adopted by other countries.”
Q: So what is the government proposing?
A: The short answer is that the government has quietly dropped its requests for a backdoor.
Last year, in a speech at the Brookings Institution, FBI Director Comey called for a “regulatory or legislative fix” to the problem of law enforcement access to encrypted communications, which was widely interpreted as calling for legislation to require encryption backdoors.
But after his proposal prompted a backlash from technologists, Comey has softened his tone. In July, he told a Senate panel that “there has not yet been a decision whether to seek legislation” about requiring companies to provide access to encrypted data.
And in Wednesday’s testimony, he told a Senate panel that “the administration has decided not to seek a legislative remedy at this time.” California Sen. Dianne Feinstein suggested that she is going to seek legislation. “If there is conspiracy going on over the Internet, that encryption ought to be able to be pierced,” she said at the hearing.
On Thursday, privacy advocates visited the White House to discuss a petition they submitted in support of strong encryption. Kevin Bankston, director of the Open Technology Institute, who attended the meeting, said that administration officials said they “would like to move beyond this debate” and start discussing “how to adapt to strong encryption rather than fighting it.”
