Thursday, October 31, 2013

The Hacker Who Owned Mark Zuckerberg

Khalil Shreateh. Photo: Alice Su

YATTA, West Bank â€" “You’ve no idea what I’ve done,” Khalil Shreateh said, bursting into the kitchen of his family’s stone-and-concrete house in the South Hebron Hills. The stocky 30-year-old Palestinian ran a hand through his already haphazard hair. “I just posted on Mark Zuckerberg’s wall.”

“You’re kidding,” said his sister, 22-year-old Nibal. She’d just tried sending her brother a message over Facebook, and was surprised to find his account mysteriously deactivated. Now she could guess why. “Stay away from big people, brother!”

“I’m going to take a nap,” Shreateh shrugged. “Hopefully they’ll give me back my page when I wake up.”

Facebook CEO Mark Zuckerberg. Photo: Carlos Serrao

It was August 14, and Shreateh had just reached halfway around the world to pull off a prank that would make him the most famous hacker in the Israeli-occupied West Bank. He’d discovered a Facebook bug that would allow him to post to another user’s wall even if he wasn’t on the user’s friends list. Demonstrating the bug on Zuckerberg was a last resort: He first reported the vulnerability to Facebook’s bug bounty program, which usually pays $500 for discoveries like his. But Facebook dismissed his report out of hand, and to this day refuses to pay the bounty for the security hole, which it has now fixed.

Where Facebook failed, though, techies from across the world stepped in to fix, crowdfunding a $13,000 reward for Shreateh. Now that money, and Shreateh’s notoriety, is about to launch the former construction worker into a new life. He’s using the funds to buy a new laptop and launch a cybersecurity service where websites will be able to request “ethical hacking” to identify their vulnerabilities. And he’s started a six-month contract with a nearby university to find bugs as part of their information security unit. He hacks and reports flaws on other universities’ sites in his free time.

“If they offer money I do not reject them, but I did not ask for money,” Shreateh says. “I don’t seek much money, only a job and a good life.”

Shreateh’s life so far hasn’t been easy. Born in Jerusalem and raised here in Yatta, an agricultural town known for its grapes and olives, he has never stepped foot outside the West Bank. Shreateh’s mother died of a heart attack when he was 13. His father, who worked as a manual laborer for an Israeli agricultural company, died of a similar heart problem three years later, leaving Shreateh orphaned along with Nibal and two other siblings.

That was 1999, the same year computers came to the Hebron area. Shreateh was 16, and he began taking shared taxis to Hebron to visit the city’s only Internet café, paying 10 shekels for the round-trip and 3 shekels for an hour online. Then in 2002, Shreateh discovered the world of hacking. “I got hacked by a Kuwait kid because I was talking to his cousin. I think he was in love with her,” Shreateh says. “Then I found hack forums. I started learning how to hack PCs and personal accounts.”

Shreateh began a degree in information systems at Al-Quds Open University â€" eight 15-hour semesters at about $320 per semester, which took Shreateh 10 years to finish. He worked a construction job from 7 a.m. to 7 p.m., so he rarely attended class, instead studying and completing assignments at night. “At exam times I quit my work to study,” Shreateh says. “I had to delay some semesters because I didn’t always have money.”

In the meantime he learned programming online. “You can learn anything from the Internet,” Shreateh says. “It just takes time. Months, you know, maybe years. Even my English, I learned it from chatting.”

Shreateh eventually got his own computer (“It was Intel, I think, a big one”), and then Yatta’s local Internet café hired him as a troubleshooter. He was able to give up construction for a while, taking odd website design and e-commerce jobs with companies in Ramallah. But by 2011 he was unemployed again. Most Yatta residents work lower-level jobs in Israel. Finding a job with the big companies usually requires wasta, personal connections that Shreateh doesn’t have.

In August, with funds running low, Shreateh decided to go back into manual labor. “I was hopeless,” he says. He called a construction company, which said they would call him back in four days. “While I was waiting, I hacked Mark,” Shreateh says with a smile.

Shreateh discovered the bug during one of his favorite hobbies, checking potential vulnerabilities based on hacker gossip (his other favorite pastime is the game Counterstrike). He first emailed Facebook’s white hat team, expecting to qualify for the company’s two-year-old bug bounty program, which has paid $1 million to some 300 white-hat hackers in 51 countries. To demonstrate the bug, he posted an Enrique Iglesias video to the profile of Sarah Goodin, one of  Zuckerberg’s college friends.

Goodin’s privacy settings prevented non-friends from seeing her Timeline, so Facebook’s security team couldn’t see Shreateh’s post. Shreateh exchanged three emails with them, explaining why their access was blocked and attaching screenshots of the exploit.

Facebook’s reply was terse: “I am sorry this is not a bug. Thanks.”

That’s when Shreateh went to Facebook’s founder himself. He posted the bug report on Mark Zuckerberg’s wall, accompanied by a message:

Dear Mark Zuckerberg,

First sorry for breaking your privacy and post to your wall , i has no other choice to make after all the reports I sent to Facebook team .

My name is KHALIL, from Palestine…

Minutes later, Shreateh’s account had been disabled. Facebook engineers contacted him for details. They fixed the bug and reactivated his account but refused to pay any bounty, saying that Shreateh had violated the conditions of its bug bounty program by testing the vulnerability on a real user’s account. Facebook’s Chief Security Officer Joe Sullivan later released a statement acknowledging they’d been “too hasty and dismissive in this case,” but also blaming an “absence of detail” in Shreateh’s report. Facebook still refused to pay the reward.

The story went viral. Outraged at Facebook’s snubbing of a fellow ethical hacker, California security expert Marc Maiffret launched an appeal to the tech community. A former teen hacker who made his name by finding security flaws in Microsoft products, Maiffret is now CTO of BeyondTrust. He contributed the first $3,000 to a GoFundMe campaign to crowdfund a bounty for Shreateh’s Facebook exploit.

Within a day, donors had given more than $10,000. The final amount raised was $13,125 from 303 people across the world, mostly donated in sums of $5 or $10, many with notes congratulating Shreateh and deriding Facebook.

The West Bank town of Yatta, where Khalil Shreateh hacked Facebook’s CEO. Photo: Alice Su

The West Bank is no easy place to be a hacker, or to do anything in the technology sphere. The occupied region depends on Israel for electricity, water and telecommunications, including the sluggish Internet that crawls into the South Hebron Hills. Shreateh has a well and three water tanks on his roof because Yatta only receives several days of running water every few months. Blackouts are common, and the town often goes without electricity for whole days in the winter.

Partly to blame is a complex system established by the Oslo accords that splits the West Bank into three zones under different combinations of Palestinian and Israeli control. “It’s like Swiss cheese,” says George Khadder, a tech entrepreneur who worked in Silicon Valley for 13 years. He sketches how Zones A, B and C weave in, out and around each other, with chunks of Israeli settlement territory in between. “The West Bank is like an archipelago, in terms of contiguity and services. This is absolutely a problem.”

This access gap is clear on the drive from Jerusalem to Yatta, which requires passing through a military checkpoint that bars Shreateh from entering Israel. The road to Yatta passes several Israeli settlements, sprawling over hilltops with their separate telecom systems, brightly lit streets and green, well-watered lawns. “The dogs in Israel drink more water than Palestinians,” the taxi driver laughs.

Shreateh now lives in Ramallah, where the situation is a little better. He comes home on weekends, as does Nibal, who is studying dentistry in Abu Dis. “He’s the only one who does this computer stuff,” she says. “Our family geek.”

Their nieces are rambunctious, dancing to an Arabic music channel blaring from the television and yelling about the Eid al-Adha crowds in Hebron. They parade around the kitchen table, showing off the new clothes they’ve just bought for the Muslim holiday â€" matching turtlenecks with faux fur vests â€" while Shreateh’s sisters laugh and croon that yes, the girls look very pretty.

Only Shreateh is oblivious to the family buzz. He sits at a small table next to the refrigerator, wholly engrossed in his laptop screen, flicking back and forth between Hacker News, exploit forums and his own security projects. He typically stays up until 2 a.m., clacking away on the keyboard as the rest of Yatta sleeps.

“He’s listening to Linkin Park,” Nibal says, adding that she finds it funny how “geeks everywhere like the same music.”

Shreateh has his own website and 44,156 followers on Facebook, many of whom spam him with questions about hacking into their boyfriends’ profiles or raising their exam grades online. Shreateh ignores them. “I am an ethical hacker,” he says. “I don’t damage or destroy.”

That makes him different from some other Palestinian hackers. The same month as Shreateh’s Facebook prank, hacktivists hijacked Google’s Palestine domain, redirecting it to a page with a Rihanna background song and written message: “uncle google we say hi from palestine to remember you that the country in google map not called israel. its called Palestine”

This month, another group called KDMS hacked the websites of security companies AVG and Avira, among other companies, redirecting to a site displaying the Palestinian flag, a graphic of Palestinian land loss, and a similar message: “we want to tell you that there is a land called Palestine on the earth,” it read in part. “this land has been stolen by Zionist.’

Shreateh dismisses these attacks as counterproductive. “They hacked to put a message about Palestine,” he says. “But some will say ‘Look, Palestinians are mindless. They hack everything, that’s bad.’ … Some people break the law to send a message, but I will send a message with my own name, not with a nickname. I can send a message without damaging a website.”

He shrugs off KDMS’s invective about good Palestinians versus bad Israelis, but bubbles over when the conversation turns to good hackers versus bad hackers. He’s a citizen of the Internet, disconnected from the Israeli-Palestinian situation, wrapped in the superhero role of upholding a hacker’s ethical code in a virtual, non-occupied world.

“There is no security today. No one is secure,” Shreateh says. That’s why people need ethical hackers to protect systems against the nonstop threat of security vulnerabilities and the black-hat hackers who exploit others for fame and money. There’s a moment of truth when you decide to take the white hat path, Shreateh says, a fork in the road when any hacker discovers a bug and decides to publicize it or get it closed instead of exploiting it for personal gain.

“I think, if someone hacks and takes my money, how do I feel?” Shreateh asks. “You treat people how you want them to treat you.”

As for Israeli hackers, he sees them as inferior, babied by the privilege of living without occupation. “Israeli hackers all come from university classes. They have companies and courses to teach them,” Shreateh scoffs. “Palestinian hackers come from Google search and YouTube videos. We all learned on our own.”

Shreateh smiles, kicks off his rubber slippers and opens his laptop to check his Facebook page, which has been receiving a steady flow of messages all afternoon. He scrolls through the flood of bug reports, Metasploit gossip, requests for hacking advice and fan mail in Arabic and broken English. He chuckles at some comments and Likes others, then opens khalil-shreateh.com, pausing on the still-incomplete website for a moment. “I am the only ethical hacker in Palestine,” Shreateh says, puffing out his chest. “But for sure, there will be more like me in the future.”

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Wednesday, October 30, 2013

Science Is Telling Us All To Revolt

Is our relentless quest for economic growth killing the planet? Climate scientists have seen the data â€" and they are coming to some incendiary conclusions.

Waste land: large-scale irrigation strips nutrients from the soil, scars the landscape and could alter climactic conditions beyond repair. Image: Edward Burtynsky, courtesy Nicholas Metivier Gallery, Toronto/ Flowers, London, Pivot Irrigation #11 High Plains, Texas Panhandle, USA (2011)

In December 2012, a pink-haired complex systems researcher named Brad Werner made his way through the throng of 24,000 earth and space scientists at the Fall Meeting of the American Geophysical Union, held annually in San Francisco. This year’s conference had some big-name participants, from Ed Stone of Nasa’s Voyager project, explaining a new milestone on the path to interstellar space, to the film-maker James Cameron, discussing his adventures in deep-sea submersibles.

But it was Werner’s own session that was attracting much of the buzz. It was titled “Is Earth F**ked?” (full title: “Is Earth F**ked? Dynamical Futility of Global Environmental Management and Possibilities for Sustainability via Direct Action Activism”).

Standing at the front of the conference room, the geophysicist from the University of California, San Diego walked the crowd through the advanced computer model he was using to answer that question. He talked about system boundaries, perturbations, dissipation, attractors, bifurcations and a whole bunch of other stuff largely incomprehensible to those of us uninitiated in complex systems theory. But the bottom line was clear enough: global capitalism has made the depletion of resources so rapid, convenient and barrier-free that “earth-human systems” are becoming dangerously unstable in response. When pressed by a journalist for a clear answer on the “are we f**ked” question, Werner set the jargon aside and replied, “More or less.”

There was one dynamic in the model, however, that offered some hope. Werner termed it “resistance” â€" movements of “people or groups of people” who “adopt a certain set of dynamics that does not fit within the capitalist culture”. According to the abstract for his presentation, this includes “environmental direct action, resistance taken from outside the dominant culture, as in protests, blockades and sabotage by indigenous peoples, workers, anarchists and other activist groups”.

Serious scientific gatherings don’t usually feature calls for mass political resistance, much less direct action and sabotage. But then again, Werner wasn’t exactly calling for those things. He was merely observing that mass uprisings of people â€" along the lines of the abolition movement, the civil rights movement or Occupy Wall Street â€" represent the likeliest source of “friction” to slow down an economic machine that is careening out of control. We know that past social movements have “had tremendous influence on . . . how the dominant culture evolved”, he pointed out. So it stands to reason that, “if we’re thinking about the future of the earth, and the future of our coupling to the environment, we have to include resistance as part of that dynamics”. And that, Werner argued, is not a matter of opinion, but “really a geophysics problem”.

Plenty of scientists have been moved by their research findings to take action in the streets. Physicists, astronomers, medical doctors and biologists have been at the forefront of movements against nuclear weapons, nuclear power, war, chemical contamination and creationism. And in November 2012, Nature published a commentary by the financier and environmental philanthropist Jeremy Grantham urging scientists to join this tradition and “be arrested if necessary”, because climate change “is not only the crisis of your lives â€" it is also the crisis of our species’ existence”.

Some scientists need no convincing. The godfather of modern climate science, James Hansen, is a formidable activist, having been arrested some half-dozen times for resisting mountain-top removal coal mining and tar sands pipelines (he even left his job at Nasa this year in part to have more time for campaigning). Two years ago, when I was arrested outside the White House at a mass action against the Keystone XL tar sands pipeline, one of the 166 people in cuffs that day was a glaciologist named Jason Box, a world-renowned expert on Greenland’s melting ice sheet.

 “I couldn’t maintain my self-respect if I didn’t go,” Box said at the time, adding that “just voting doesn’t seem to be enough in this case. I need to be a citizen also.”

This is laudable, but what Werner is doing with his modelling is different. He isn’t saying that his research drove him to take action to stop a particular policy; he is saying that his research shows that our entire economic paradigm is a threat to ecological stability. And indeed that challenging this economic paradigm â€" through mass-movement counter-pressure â€" is humanity’s best shot at avoiding catastrophe.

That’s heavy stuff. But he’s not alone. Werner is part of a small but increasingly influential group of scientists whose research into the destabilisation of natural systems â€" particularly the climate system â€" is leading them to similarly transformative, even revolutionary, conclusions. And for any closet revolutionary who has ever dreamed of overthrowing the present economic order in favour of one a little less likely to cause Italian pensioners to hang themselves in their homes, this work should be of particular interest. Because it makes the ditching of that cruel system in favour of something new (and perhaps, with lots of work, better) no longer a matter of mere ideological preference but rather one of species-wide existential necessity.

Leading the pack of these new scientific revolutionaries is one of Britain’s top climate experts, Kevin Anderson, the deputy director of the Tyndall Centre for Climate Change Research, which has quickly established itself as one of the UK’s premier climate research institutions. Addressing everyone from the Department for International Development to Manchester City Council, Anderson has spent more than a decade patiently translating the implications of the latest climate science to politicians, economists and campaigners. In clear and understandable language, he lays out a rigorous road map for emissions reduction, one that provides a decent shot at keeping global temperature rise below 2° Celsius, a target that most governments have determined would stave off catastrophe.

But in recent years Anderson’s papers and slide shows have become more alarming. Under titles such as “Climate Change: Going Beyond Dangerous . . . Brutal Numbers and Tenuous Hope”, he points out that the chances of staying within anything like safe temperature levels are diminishing fast.

With his colleague Alice Bows, a climate mitigation expert at the Tyndall Centre, Anderson points out that we have lost so much time to political stalling and weak climate policies â€" all while global consumption (and emissions) ballooned â€" that we are now facing cuts so drastic that they challenge the fundamental logic of prioritising GDP growth above all else.

Anderson and Bows inform us that the often-cited long-term mitigation target â€" an 80 per cent emissions cut below 1990 levels by 2050 â€" has been selected purely for reasons of political expediency and has “no scientific basis”. That’s because climate impacts come not just from what we emit today and tomorrow, but from the cumulative emissions that build up in the atmosphere over time. And they warn that by focusing on targets three and a half decades into the future â€" rather than on what we can do to cut carbon sharply and immediately â€" there is a serious risk that we will allow our emissions to continue to soar for years to come, thereby blowing through far too much of our 2° “carbon budget” and putting ourselves in an impossible position later in the century.

Which is why Anderson and Bows argue that, if the governments of developed countries are serious about hitting the agreedupon international target of keeping warming below 2° Celsius, and if reductions are to respect any kind of equity principle (basically that the countries that have been spewing carbon for the better part of two centuries need to cut before the countries where more than a billion people still don’t have electricity), then the reductions need to be a lot deeper, and they need to come a lot sooner.

To have even a 50/50 chance of hitting the 2° target (which, they and many others warn, already involves facing an array of hugely damaging climate impacts), the industrialised countries need to start cutting their greenhouse-gas emissions by something like 10 per cent a year â€" and they need to start right now. But Anderson and Bows go further, pointing out that this target cannot be met with the array of modest carbon pricing or green-tech solutions usually advocated by big green groups. These measures will certainly help, to be sure, but they are simply not enough: a 10 per cent drop in emissions, year after year, is virtually unprecedented since we started powering our economies with coal. In fact, cuts above 1 per cent per year “have historically been associated only with economic recession or upheaval”, as the economist Nicholas Stern put it in his 2006 report for the British government.

 Even after the Soviet Union collapsed, reductions of this duration and depth did not happen (the former Soviet countries experienced average annual reductions of roughly 5 per cent over a period of ten years). They did not happen after Wall Street crashed in 2008 (wealthy countries experienced about a 7 per cent drop between 2008 and 2009, but their CO2 emissions rebounded with gusto in 2010 and emissions in China and India had continued to rise). Only in the immediate aftermath of the great market crash of 1929 did the United States, for instance, see emissions drop for several consecutive years by more than 10 per cent annually, according to historical data from the Carbon Dioxide Information Analysis Centre. But that was the worst economic crisis of modern times.

If we are to avoid that kind of carnage while meeting our science-based emissions targets, carbon reduction must be managed carefully through what Anderson and Bows describe as “radical and immediate de-growth strategies in the US, EU and other wealthy nations”. Which is fine, except that we happen to have an economic system that fetishises GDP growth above all else, regardless of the human or ecological consequences, and in which the neoliberal political class has utterly abdicated its responsibility to manage anything (since the market is the invisible genius to which everything must be entrusted).

So what Anderson and Bows are really saying is that there is still time to avoid catastrophic warming, but not within the rules of capitalism as they are currently constructed. Which may be the best argument we have ever had for changing those rules.

In a 2012 essay that appeared in the influential scientific journal Nature Climate Change, Anderson and Bows laid down something of a gauntlet, accusing many of their fellow scientists of failing to come clean about the kind of changes that climate change demands of humanity. On this it is worth quoting the pair at length:

 . . . in developing emission scenarios scientists repeatedly and severely underplay the implications of their analyses. When it comes to avoiding a 2°C rise, “impossible” is translated into “difficult but doable”, whereas “urgent and radical” emerge as “challenging” â€" all to appease the god of economics (or, more precisely, finance). For example, to avoid exceeding the maximum rate of emission reduction dictated by economists, “impossibly” early peaks in emissions are assumed, together with naive notions about “big” engineering and the deployment rates of low-carbon infrastructure. More disturbingly, as emissions budgets dwindle, so geoengineering is increasingly proposed to ensure that the diktat of economists remains unquestioned.

In other words, in order to appear reasonable within neoliberal economic circles, scientists have been dramatically soft-peddling the implications of their research. By August 2013, Anderson was willing to be even more blunt, writing that the boat had sailed on gradual change. “Perhaps at the time of the 1992 Earth Summit, or even at the turn of the millennium, 2°C levels of mitigation could have been achieved through significant evolutionary changes within the political and economic hegemony. But climate change is a cumulative issue! Now, in 2013, we in high-emitting (post-)industrial nations face a very different prospect. Our ongoing and collective carbon profligacy has squandered any opportunity for the ‘evolutionary change’ afforded by our earlier (and larger) 2°C carbon budget. Today, after two decades of bluff and lies, the remaining 2°C budget demands revolutionary change to the political and economic hegemony” (his emphasis).

We probably shouldn’t be surprised that some climate scientists are a little spooked by the radical implications of even their own research. Most of them were just quietly doing their work measuring ice cores, running global climate models and studying ocean acidification, only to discover, as the Australian climate expert and author Clive Hamilton puts it, that they “were unwittingly destabilising the political and social order”.

But there are many people who are well aware of the revolutionary nature of climate science. It’s why some of the governments that decided to chuck their climate commitments in favour of digging up more carbon have had to find ever more thuggish ways to silence and intimidate their nations’ scientists. In Britain, this strategy is becoming more overt, with Ian Boyd, the chief scientific adviser at the Department for Environment, Food and Rural Affairs, writing recently that scientists should avoid “suggesting that policies are either right or wrong” and should express their views “by working with embedded advisers (such as myself), and by being the voice of reason, rather than dissent, in the public arena”.

If you want to know where this leads, check out what’s happening in Canada, where I live. The Conservative government of Stephen Harper has done such an effective job of gagging scientists and shutting down critical research projects that, in July 2012, a couple thousand scientists and supporters held a mock-funeral on Parliament Hill in Ottawa, mourning “the death of evidence”. Their placards said, “No Science, No Evidence, No Truth”.

But the truth is getting out anyway. The fact that the business-as-usual pursuit of profits and growth is destabilising life on earth is no longer something we need to read about in scientific journals. The early signs are unfolding before our eyes. And increasing numbers of us are responding accordingly: blockading fracking activity in Balcombe; interfering with Arctic drilling preparations in Russian waters (at tremendous personal cost); taking tar sands operators to court for violating indigenous sovereignty; and countless other acts of resistance large and small. In Brad Werner’s computer model, this is the “friction” needed to slow down the forces of destabilisation; the great climate campaigner Bill McKibben calls it the “antibodies” rising up to fight the planet’s “spiking fever”.

It’s not a revolution, but it’s a start. And it might just buy us enough time to figure out a way to live on this planet that is distinctly less f**ked.

Naomi Klein, the author of “The Shock Doctrine” and “No Logo”, is working on a book and a film about the revolutionary power of climate change. You call follow her on twitter @naomiaklein

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Tuesday, October 29, 2013

The End Of The Death Penalty

On Oct. 15, Florida executed William Happ, a man who most agreed deserved little sympathy. Happ kidnapped 21-year-old Angela Crowley in 1986 from outside a convenience store in Crystal River and raped and strangled her before dumping her tormented body into the Cross Florida Barge Canal. Three years later he was convicted of rape and murder and sentenced to death.

Happ's execution lasted 14 minutes before he was pronounced deadâ€"double the time typically expected when pentobarbital, the executioner's drug of choice for years, was used. He "remained conscious longer and made more body movements after losing consciousness than other people executed recently by lethal injection," according to Associated Press reports.

Happ died for his crimes committed 27 years ago. Like hundreds before him, Happ's death was administered through an intravenous injection of a lethal drug cocktail.

Like no one before him, Happ was injected with midazolam hydrochloride, a sedative that had never before been used for an execution in the United States.

Happ's execution reflects an American death-penalty system in crisis: States are running out of the drugs they rely on to carry out death sentences as alternatives for how to secure them quickly diminish. And no one wants to innovate in the execution industry. As the medical community works to distance itself from the science of killing people, states are attempting to forge a difficult road ahead, one fraught with litigation, international tension, and uncertainty.

Race to the Bottom

Florida's new drug of choice replaced pentobarbital, a barbiturate the state used for years as part of its three-drug lethal cocktail until de facto boycotts by foreign drug manufacturers exhausted its supply. Midazolam hydrochloride, marketed as Versed, was chosen not because of its effectiveness but because of its availability, a decision legal experts say calls into question Florida's commitment to the Eighth Amendment's promise of no infliction of cruel or unusual punishment.

Florida is just one of several states scrambling to update or refine its capital-punishment protocol amid a sudden shortfall of its lethal injection drugs, resulting in an unprecedented inconsistency in the way inmates are executed in the United States. Even as a steady majority continues supporting the death penalty, the difficulty in obtaining new lethal drugs, associated legal hurdles, and a gaping void of better execution alternatives has left capital punishment in America with an uncertain future.

Distilling the amount of pain Happ endured is nearly impossible because the second drug in Florida's three-drug cocktail, vecuronium bromide, acts as a paralytic agent. Its purpose is largely cosmetic, effectively masking how much pain the subject may be enduring.

"We don't even know if the new drug (midazolam) is working or not," said Richard Dieter, the executive director of the Death Penalty Information Center. "Everything is a bit of an experiment with a human subject. If this were ordinary medicine, that would not be allowed, but this is the death penalty and that's how it goes."

"If this were ordinary medicine, that would not be allowed, but this is the death penalty and that's how it goes."

In a letter to Florida Gov. Rick Scott last month describing the changes to its lethal-injection protocol, Florida Department of Corrections Secretary Mike Crews wrote that "the procedure has been reviewed and is compatible with evolving standards of decency that mark the progress of a maturing society, the concepts of the dignity of man, and advances in science, research, pharmacology, and technology. He added: "The process will not involve unnecessary lingering or the unnecessary or wanton infliction of pain and suffering. The foremost objective of the lethal injection process is a human and dignified death."

A department spokeswoman confirmed the switch was made because Florida's cache of pentobarbital expired. She declined to give specifics about how the updated lethal-injection process was vetted to ensure it qualifies as "a humane and dignified death."

"The department is not going to go into any detail about how or why the protocol was designed," Misty Cash, the spokeswoman, told National Journal. "Those decisions are exempt from public record because they could impact the safety and security of inmates and officers who are involved in that process."

Florida's refusal to disclose its process for selecting its new drug bolsters critics who claim it and other states are willing to risk violating generally accepted standards of decency in their pursuit of a reliable method of execution.

(Peter Bell)

"Every time a state changes their method of execution, they lose credibility about a procedure that should be as humane as we can make it. Everything that states are doing now goes against that very grain," said Deborah Denno, a capital-punishment expert who opposes the death penalty. "They choose drugs because they are available, not because they know anything about those drugs."

Texas's changes to its lethal-injection protocol illustrates that reality. When the state first adopted lethal injection as a method of execution in 1982, a three-drug sequence consisting of sodium thiopental, pancuronium bromide, and potassium chloride was deployed. In March 2011, the state replaced sodium thiopental with pentobarbital because the state encountered difficulty procuring the old drug, according to Texas Department of Criminal Justice spokesman Jason Clark. A year later, the department again modified its execution protocol, this time from a three-drug sequence to just one drug: a lethal dose of pentobarbital, a drug more commonly used to euthanize pets.

This change, like the first, occurred because "the agency's stock of [pancuronium bromide] expired and the agency was unable to obtain a new shipment," Clark said.

In Ohio, pentobarbital remains the "primary method of intravenous execution," but the state updated its execution policy in October to allow for a combination of midazolam and hydromorphone to be used instead. The state says its supply of pentobarbital has expired, and with no way to easily restock, the backup method is likely to become the new normal. When asked how Ohio settled on its backup choice, an official said the state "reviewed all available information from other states, and considered all available options" but did not provide further detail.

Eight days after Florida executed Happ, Missouri planned to put Allen Nicklasson to death with propofol. The anesthetic, which contributed to Michael Jackson's death by overdose in 2009, had also never been used before for a human execution. But buckling from pressure from the medical community, which argued propofol could inflict inhumane levels of pain, Gov. Jay Nixon halted Nicklasson's execution to ensure "justice is served and public health is protected." But a more practical matter was likely weighing on Nixon's mind: German manufacturer Fresenius Kabi had threatened to stop shipping propofol to the U.S. if the drug was allowed to be used for executions.

A Solution or Another Stopgap Effort?

As some states zig and others zag to keep their executions from being interrupted, elsewhere, in unsuspecting places, exasperated politicians are publicly questioning whether capital punishment is worth the growing avalanche of legal and practical headaches. In Arkansas, a state with a rich history of executions (Bill Clinton famously flew home from campaigning in 1992 to preside over Ricky Ray Rector's execution), Gov. Mike Beebe, a moderate Democrat, said earlier this year that he would sign a bill ending the state's death penalty if it came to his desk.

Attorney General Dustin McDaniel, also a Democrat, has been even more forceful. Though he supports capital punishment in principle, McDaniel has begun publicly scrutinizing the practice. Due in part to the difficulty in obtaining the necessary drugsâ€"and a bevy of related legal challengesâ€"his state has not carried out an execution since 2005 despite having nearly 40 prisoners on death row.

"I can no more flap my arms and fly across the state than I can carry out an execution."

"Our system is completely broken, and I don't know how to say it more bluntly than that," McDaniel told National Journal. "It's a complete impossibility. I can no more flap my arms and fly across the state than I can carry out an execution."

Doctors and researchers aren't exactly clamoring to develop new methods of killing people, and no one is advocating a regression to older forms of execution, like the electric chair or gas chamber. But even if a new, cutting-edge technique was developed somewhere, that too would almost certainly provoke a torrent of litigation.

"Let's say that there was magically a vapor, a mist, a pill, a fatal hypnotic stare. You still have to find American manufacturers who are willing to produce it and courts who are willing to accept it," McDaniel said. "I don't see any of that happening. It's science fiction and legal fiction."

McDaniel said he has considered turning to compounding pharmaciesâ€"where products are chemically crafted to fit an individual person's needsâ€"within the state to produce lethal-injection cocktails as "the only remaining option." But despite successes found in Georgia, South Dakota, and Texas, McDaniel predicts that "there is no way a compounding pharmacy will pass the litigation muster."

Already, compounding pharmacies have proven to be a difficult path to forge. Texas restocked its supply of pentobarbital by turning to a pharmacy in suburban Houston, which was publicly identified through a Freedom of Information request made by the Associated Press earlier this month. The "outed" pharmacy then demanded Texas return its drugs, which the state refused. Meanwhile, three inmates on death row are suing the state on grounds the drugs could cause cruel and unusual punishment, as their production is secretive and beyond the regulatory purview of the Food and Drug Administration.

Missouri, hard up after deciding to forgo using the anesthetic Michael Jackson overdosed on, announced last week that it, too, had settled on compounding pharmacies to produce pentobarbital.

Three billsâ€"one in the Senate, two in the House of Representativesâ€"dealing with regulatory oversight of compounding pharmacies have earned committee consideration this year. Such legislation is likely to restrict a state's ability to rely on compounding pharmacies for its lethal drugs because they would force more transparency, tighten prescription requirements and expose physicians to liability.

Lethal injection states are stuck, and quickly running out of places to turn to secure the ingredients needed to execute a growing backlog of prisoners on death row. Medical practitioners and pharmaceutical companies are in the business of saving lives, not helping to end them, and are increasingly unwilling to have their name associated to the practice.

Advocates like Denno see this rising tension as an unexpected boon for their cause, something that is succeeding where more-conventional methodsâ€"Eighth Amendment lawsuits, innocence projects, and demonstrations of racial and socioeconomic biasâ€"have failed.

"The drug shortage and what caused it and what perpetuates it and what results from it has nothing to do with the execution process in this country. Nonetheless, it may be the factor that ends up finally abolishing the death penalty," she said. "And it's an irony because it's nothing any death-penalty litigator could have hoped for."

Capital punishment in America is not going to disappear overnight. But an executioner stripped of his tools is as good as a toothless shark.

"When the death penalty goes, it's not just going to be, well, we couldn't figure out a way to kill people," DPIC's Dieter said. But "it's one more straw on the camel's back."

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The Next Agent Orange

To an unsuspecting eye, the Torres family home is indistinguishable from the other bungalows that line a flat, treeless stretch of road somewhere off US Route 77. Under an unforgiving Texas sun, the family’s golden retriever runs in circles around the parched lawn, pausing for breath in the shadow of an SUV parked out front. And inside, life appears perfectly normal. Framed photos of Rosie and Le Roy’s wedding and of their three teenaged children line the mantle. Tubs of peanut butter and jam sit open on a cluttered kitchen counter. The giggles of 16-year-old girls on summer vacation echo from down the hall.

But upon closer inspection, it quickly becomes apparent that this is a family under siege. Le Roy’s imposing physique still harkens back to his decades of law enforcement and military service, but his stature belies a profound physical frailty. One that becomes obvious the moment he speaks: Le Roy’s voice is meek, and his eyes water and hands shake slightly as his ailing lungs strain to expel a single sentence. When he talks about what happened to him, the shaking speeds up. And when he’s asked how his health problems have affected Rosie and the kids, who’ve spent the past five years wondering if today was the day he’d die, tears from those waterlogged eyes spill onto his cheeks.

Le Roy, now 41, joined the Army at the age of 17 â€" before even finishing high school. After six years of active duty he enlisted in the reserves. But it wasn’t until 2007 that he was finally deployed overseas and served a one-year tour as a battalion personnel officer stationed out of Iraq’s Joint Base Balad. Since then, Le Roy has become increasingly ill. First it was incessant coughing, shortness of breath, crushing chest pain. Then came the headaches; agony so intense that Rosie would often drive Le Roy to the ER, convinced this was the end. And finally the gastrointestinal trauma: Le Roy recalls once passing a blood clot the size of a golf ball in a rest area bathroom. “I wondered all the time whether I would live to the next day,” he says. “Because it just kept getting worse and worse.”

As Le Roy and Rosie struggled to understand his symptoms they also made a startling discovery: as the two are now acutely aware, Le Roy isn’t the only veteran of the wars in Iraq and Afghanistan to suffer from mysterious illnesses. Thousands of others are complaining of breathing problems, gastrointestinal disorders, and even rare cancers. Some have already died of these ailments. A handful of health experts are now concerned that today’s veterans face an emerging epidemic, one threatening the lives of thousands of men and women â€" but neither the Department of Defense (DOD) nor the Department of Veterans Affairs (VA) concur. It’s a conflict that’s pitting Le Roy and Rosie, along with a growing number of veterans, politicians, doctors, and scientists against some of the two biggest institutions in the US government.

And it’s all because of garbage.

One

At the height of the war in Iraq, US forces operated out of 505 bases scattered across the country. Joint Base Balad, a 15-square-mile outpost north of Baghdad, was the second largest. Home to 36,000 military personnel and contractors at its peak, the base was considered a vital hub for operations throughout Iraq â€" largely thanks to two 11,000-foot runways and one of the best and biggest trauma centers in the region. Balad also boasted a notorious array of amenities: troops living in the makeshift mini-city could dine on Burger King or Subway, play miniature golf or relax in an air-conditioned movie theater, and browse for TVs or iPods at two different shopping centers.

But when Le Roy arrived at Balad in the summer of 2007, the first thing he noticed was the smell. A noxious, overwhelming stench reminiscent of burning rubber. “I was like, ‘Wow, that is something really bad, really really bad,’” he recalls. Soon, he also noticed the smoke: plumes of it curling into the air at all hours of the day, sometimes lingering over the base as dark, foreboding clouds. That smoke, Le Roy soon learned, was coming from the same place as the stench that had first grabbed him: Balad’s open-air burn pit.

PLASTIC, STYROFOAM, ELECTRONICS, METAL CANS, RUBBER TIRES, EXPLOSIVES, HUMAN FECES, ANIMAL CARCASSES, ASBESTOS INSULATION, AND HUMAN BODY PARTS

The pit, a shallow excavation measuring a gargantuan 10 acres, was used to incinerate every single piece of refuse generated by Balad’s thousands of residents. That meant seemingly innocuous items, like food scraps or paper. But it also meant plastic, styrofoam, electronics, metal cans, rubber tires, ammunition, explosives, human feces, animal carcasses, lithium batteries, asbestos insulation, and human body parts â€" all of it doused in jet fuel and lit on fire. The pit wasn’t unique to Balad: open-air burn pits, operated either by servicemembers or contractors, were used to dispose of trash at bases all across Iraq and Afghanistan.

“I remember waking up with soot on me; you’d come out and barely see the sun because it was so dark from the smoke,” says Dan Meyer, a 28-year-old Air Force veteran who lived adjacent to the burn pit at Afghanistan’s Kandahar Air Base. Meyer is now confined to a wheelchair because of inoperable tumors in his knees, and breathes using an oxygen tank due to an obstructive lung disease. “It would just rain down on us. We always called it ‘black snow.’”

It’s no secret that open-air burning poses health hazards. The Environmental Protection Agency (EPA) has long warned that burning waste â€" even organic refuse like brush or tree branches â€" is dangerous. Burning items like plastic water bottles or computer parts is even worse. “It’s appalling,” says Anthony Wexler, PhD, director of the Air Quality Research Center at UC Davis and the co-author of a 2010 review of the military’s air-quality surveillance programs in Iraq and Afghanistan. “From a health perspective, this kind of open-pit burning, especially when you’re burning everything under the sun, creates a real mess.” That’s because of both the size of the particulate matter emitted from the pits and its composition. Smoke from any combustion process fills the air with what are known as “fine particles” or PM2.5. Because they’re so small â€" measuring 2.5 microns in diameter or less â€" these particles burrow more deeply into the lungs than larger airborne pollutants, and from there can leach into the bloodstream and circulate through the body. The military’s burn pits emitted particulate matter laced with heavy metals and toxins â€" like sulfur dioxide, arsenic, dioxins, and hydrochloric acid â€" that are linked to serious health ailments. Among them are chronic respiratory and cardiovascular problems, allergies, neurological conditions, several kinds of cancer, and weakened immune systems.

Le Roy is convinced that burn-pit exposure is behind his health problems, which he says first emerged a few weeks into that 2007 deployment. “It started with a cough. I was coughing up this gunk stuff, like black phlegm that kept coming and coming,” he says. “The medical officer told me it was ‘Iraqi crud’ and it’d go away in a few days. I thought, ‘I’ve been here a month, how much longer?’” The cough never improved, and upon his return to the US in 2008, Le Roy found himself struggling to get answers from military physicians: they brushed it off as bronchitis, asthma, even an anxiety disorder triggering physical symptoms.

As a reservist, Le Roy also had a civilian job as a Texas state trooper. But despite 14 years in the role, his employers couldn’t acquiesce to Le Roy’s declining health: he was put on leave from his job in September 2010, two years after returning from Iraq, for being unable to perform physically challenging tasks.


Map of Joint Base Balad, Iraq

Later that same year, Le Roy was referred to Dr. Robert Miller, a pulmonologist at Vanderbilt University. Dr. Miller had met soldiers like Le Roy before â€" dozens of men and women with chronic respiratory problems following deployments to Iraq or Afghanistan â€" and he knew exactly what to do: Le Roy soon underwent a lung biopsy, a procedure wherein surgeons make three incisions in the chest to remove tissue for examination. For Le Roy, much like Dr. Miller’s other patients, the diagnosis was grim: he suffered from constrictive bronchiolitis, an exceedingly rare, sometimes terminal lung disease.

The military has long known, at least internally, that burn pits can harm human health. In a series of waste-management guidelines published in 1978, the DOD cautioned that open-air burning was not a safe option for waste disposal, and should only be used “[when] there is no other alternative.” There’s no doubt that burn pits are an expedient, inexpensive way to dispose of trash â€" especially in the early phases of a conflict â€" but replacements like closed incinerators or landfills offer a longer-term solution once a base is established. A few years into the wars in Iraq and Afghanistan, however, some military personnel warned that those replacements weren’t being implemented.

“[Burn pits] should only be used in the interim until other ways of disposal can be found,” notes a 2006 memo from the now-retired Lt. Colonel Darrin Curtis, then a bioenvironmental engineer with the Air Force. “It is amazing that the burn pit [at Balad] has been able to operate without restrictions over the past few years.” Another memo, this one from 2011, warns of “an increased risk of long-term adverse health conditions” caused by the burn pit at Bagram Air Base in Afghanistan.

Meanwhile, some civilian experts like Dr. Miller were seeing patients with worrisome medical problems. “It began to look to me like a perfect storm,” he recalls. “We had one soldier after another, talented capable athletes, who couldn’t pass their fitness tests anymore.” But in 2010, after he warned the military that dozens of his patients had constrictive bronchiolitis â€" which is almost always caused by toxic exposure in otherwise healthy people â€" a troubling thing happened: physicians at Fort Campbell were directed to stop referring soldiers to Dr. Miller’s nearby medical practice. “They basically cut us off,” he says. “Needless to say, it’s clear that the DOD hasn’t embraced this as a significant problem.”

The DOD doesn’t see it that way. While representatives declined repeated requests for an in-person interview, they did issue a written statement that reads, in part: “Smoke exposure may cause acute symptoms in some people. Most short-term effects from exposure to particulate matter and burn pit smoke resolve after the individual leaves the deployed area.” Those conclusions are mostly based on air sampling tests, conducted by the military a handful of times in Iraq and Afghanistan. The most extensive survey, done by the Army, collected hundreds of samples around Balad in 2007. Study leaders concluded that airborne toxin levels were “within acceptable standards” and that “no significant short- or long-term health risks and no elevated cancer risks are likely” among personnel living near burn pits. The military has since repeatedly cited those conclusions in an effort to dismiss concerns about ailing soldiers.

But the study’s findings are essentially worthless, according to researchers with intimate knowledge of how they were reached. None of the sampling evaluated PM2.5, nor did it examine dust or ashes from in or around burn pits themselves.

“It’s garbage in, garbage out,” says Dr. Anthony Szema, a pulmonologist at Stony Brook University who has treated soldiers and veterans who suspect they have burn pit-related health woes. “If you don’t collect good data, it goes without saying that your results will be meaningless.” And in a scathing 2009 Senate hearing, Lt. Colonel Curtis â€" who led the initial team behind the Army study â€" admitted to serious flaws in both the sampling equipment and the study’s techniques. “I do not feel,” he said, “that the air samples reflected the true exposures that the service members had experienced.”

Eventually, ongoing pleas from soldiers and doctors garnered attention from politicians and military leadership. In 2009, the US government passed legislation to ban the open-air burning of some trash, namely “hazardous or biomedical waste,” and US Central Command ordered the closure of burn pits on bases with more than 100 soldiers, “when the transition is practical.” The military gradually replaced some burn pits with closed incinerators. But by many accounts, this didn’t remedy the problem comprehensively or quickly enough. A 2010 report from the Government Accountability Office found that some pits in Iraq were still burning items, like plastics and styrofoam, banned by those new federal rules. And as recently as July of this year, four pits in Afghanistan were still operating â€" even as closed incinerators built on two of those bases, at a cost of $16 million, collect dust.

“I don’t know how you can construct an argument that there’s no reasonable alternative for the disposal of the waste when you have two unused incinerators on-site,” says Representative Tim Bishop (D-NY), who has led Congressional efforts to regulate burn pits. “I simply don’t know how you make that justification.”

Le Roy has spent years asking himself that same question. He wants to think the best of the military he dreamt of serving since childhood, the military he enlisted in before even graduating from high school. But Le Roy can’t shake the feeling that they let him, and his fellow soldiers, down.

“I took it personally, that they made a calculation about what was a cheaper and easier way to get rid of trash, versus the cost of someone’s life,” he says. “Here someone is worrying about mortars or IED attacks, and in the end, it was our own guys who got us.”

  • Anatomy of a burn pit

    Throughout the wars in Iraq and Afghanistan, the US military often relied on burn pits to destroy the tons of trash generated at bases across both countries. These shallow excavations, sometimes several acres in size, emitted plumes of chemical-laden smoke that some soldiers and veterans now blame for an array of health problems.

  • On a day-to-day basis, each soldier in Iraq and Afghanistan generated around 10 pounds of waste â€" which was often disposed of in burn pits. That trash included plastic water bottles, food scraps and packaging, paper, and clothing.

  • Beyond conventional trash, burn pits also disposed of equipment and gear unique to military bases. Electronics, unspent munitions, rubber tires, batteries, paint and even entire Humvees were all burned â€" usually with the help of JP-8 jet fuel, which served as an accelerant.

  • The byproducts of medical care, including needles, gloves, bandages, and pharmaceuticals, were reportedly burned in some pits. So too were human waste, dead animals, and according to some soldiers, even human body parts.

  • Based on what the pits burned, scientists deduce that they emitted toxins including hydrochloric acid, arsenic, formaldehyde, heavy metals, and dioxins. Health effects associated with the inhalation of such substances include cancer, neurological defects, respiratory diseases, and organ degeneration.

  • Open-air burn pits are much more hazardous than alternatives like closed incinerators or landfills. The pits tend to smolder at low temperatures over long periods, consistently releasing toxic plumes into the air. Those plumes are comprised of fine particles that can travel over long distances and leech deeply into the lungs.

Two

Daniel Sullivan wasn’t surprised when his younger brother decided to enlist in the Marine Corps. Tom had always loved challenges, and “in the Marines he found a place where he could do that,” Daniel says. “It was his calling. He loved it.” But after Tom returned from a 2004 deployment to Iraq, the once hardy soldier soon faced a physical trial that proved insurmountable. Tom’s daily rectal bleeding, mysterious swelling, and spasms of agonizing pain grew progressively worse â€" and Daniel became increasingly concerned that his brother’s physicians weren’t addressing the problems. He was right: in 2009, Daniel found his 30-year-old brother lifeless in a chair, a bag of medical records at his side.

“Tom would carry those records to every doctor’s appointment,” Daniel recalls. “Because he just hoped that someone would finally look at them, and do something to make him better.”

But nobody did, despite the fact that Tom was indeed suffering from a litany of serious health conditions: an autopsy pinpointed bronchopneumonia as his official cause of death, though it was accompanied by widespread organ degeneration, along with colitis and cardiovascular disease. “They basically said that … if the pneumonia hadn’t killed him, something else would have soon,” Daniel says. Even more disturbing is that Tom’s death may have been preventable: when Daniel met with his brother’s doctors, they admitted to brushing off Tom’s symptoms as being psychological in nature. “This was a man at the pinnacle of health, whose body literally fell apart,” Daniel says. “This should not have happened.”

“The science is clear that toxins cause you to get sick. And there’s a lot of people sick.”

Tom’s death instantly transformed Daniel’s life, turning him into a brash and outspoken advocate for the thousands of veterans he’s convinced could face the same fate as his brother. In 2010, after Daniel’s research revealed that other veterans who’d deployed to the Middle East suffered from similar symptoms to Tom, he and his parents launched a nonprofit agency called the Sergeant Thomas Joseph Sullivan Center. The organization is intent on promoting research and education about what soldiers were exposed to in Iraq and Afghanistan â€" including burn pit fumes, prevalent dust storms, toxic sand, and severe pollution â€" and ensuing ailments they refer to as “post-deployment illnesses.” Unraveling the impact of smoke exposure, which Tom noted as a health concern on his post-deployment survey, is now one of Daniel’s priorities. “It’s really only been over the past two years that I fully understood the health risks a burn pit could have,” Daniel says. “[But] the science is clear that toxins cause you to get sick. And there’s a lot of people sick.”

The Sullivan Center is headquartered in a windowless, one-room office in Washington, DC. For Daniel, the Center has become a full-time job: he dedicates his days to doing research, corresponding with civilian and governmental scientific experts, and trying to bring toxic exposures to the attention of members of Congress and the general public. “We need to acknowledge [the] toxic exposures in the Middle East theater of operations, and that the diseases servicemembers get afterwards are almost irrefutably connected to what they were exposed to,” he says. “If you were exposed to these chemicals, it’s going to have an impact on your health, and it needs to be acknowledged, monitored, and treated.”

Pushing for progress hasn’t come easy. It can take dozens of phone calls for Daniel to earn a single meeting with a Congressional aide; someone who, he hopes, will communicate his carefully prepared talking points back to their superior. Correspondence with the military and the VA can be even more frustrating: email correspondences that first seem productive sometimes sour once Daniel appeals for firmer answers and commitments. “There are some roadblocks, but I like to think we have a dialogue,” Daniel says of his interactions with DOD and VA officials. “You know, I like to keep that positive mindset.”

And already, the Center counts one significant victory: the “Helping Veterans Exposed to Toxic Chemicals Act.” Having found political allies in Representatives Tim Bishop and Diana DeGette of Colorado’s first district, Daniel and his father stood alongside both at a press conference earlier this year to propose funding three research centers, run by civilian scientists, that would study exposure-related illnesses and offer comprehensive treatment for ailing veterans â€" exactly what Daniel and his family had hoped for. Though the act has yet to garner ample support on Capitol Hill, Daniel is intent on seeing it through to the finish line.

“If funding can go to these centers,” he says, “maybe we can finally start to understand these diseases coming out of theater, and get some real answers for what’s happening to these soldiers.”

While Daniel fights for veterans from the nation’s capital, he’s found fellow advocates more than 1,600 miles away. From their home in Robstown, Texas, Le Roy and Rosie Torres have for three years been working doggedly to help military families enduring medical crises similar to their own. The two have lobbied in DC, but the primary focus of their organization â€" called Burn Pits 360 â€" is to document the afflictions plaguing individual veterans.

“After what Le Roy went through, I thought to myself, ‘These guys need somewhere to go, and we need a way to capture all of these symptoms,’” Rosie says. “They can’t just think they’re the only ones with something wrong.” Burn Pits 360 operates as an online registry wherein veterans can document their deployments, what they were exposed to, and their current symptoms. The registry now counts over 2,000 entries, some of them submitted by family members of deceased service members.

Burn Pits 360 is more than just a hub for ailing veterans â€" the Torres’ think it could offer reams of useful information for scientists investigating exposure-related health problems. One civilian researcher agrees. Dr. Szema at Stony Brook is now studying the patient information that Burn Pits 360 has compiled. He doesn’t have final results, but Szema notes that several common themes have emerged: “nearly 100 percent” of respondents complain of respiratory problems, with some also suffering from cancer, GI distress, and migraine headaches, among other ailments. To Szema, the findings and their root cause appear obvious.

“I can’t say that any of his is really surprising to me,” he says matter-of-factly. “Humans aren’t supposed to breathe in smoke like this. There’s no safe level of exposure.”

A handful of other studies about exposures in Iraq and Afghanistan are ongoing. Unfortunately, scientists remain hampered by inadequate funding and a paucity of data. In large part, that’s because the military didn’t collect information on what each burn pit incinerated, when the pits were used, or which soldiers lived or worked close to them (in fact, they didn’t even keep a running list of operational burn pits until 2010). Of course, that kind of data collection is no easy task during a war, but some military officials have also made concerted efforts to “sweep this thing under the rug” by keeping available data to a minimum, says Dr. Cecile Rose, a researcher at National Jewish Hospital in Denver. Rose is conducting two studies â€" one of them actually military-funded â€" looking at exposures in Iraq and Afghanistan and subsequent health problems. “Scientists are really trapped in a data-poor environment here,” Rose says. “Frankly, the likelihood that we will be able to really pin it down, what’s causing these soldiers to get sick, is extremely unlikely.”

Rosie and Le Roy, however, don’t buy the claim that scientists can’t offer them and other veterans any answers. Not when they’ve got information from thousands of sick servicemembers â€" with more entries being submitted to Burn Pits 360 every single day. “The answers are already there,” Rosie says. “It doesn’t take a scientist to look at these chemicals in the air, look at the symptoms, and say people were exposed, people are sick, people are going to die.” They plan to keep the registry open, but Rosie and Le Roy say they can’t cope much longer with the emotional side effects of documenting diagnoses and deaths.

“Some days I don’t even want to open my computer, because there will be another entry to read, and then another,” Rosie says. “It’s like I’m drowning, and I can’t come up for air. I can’t keep hearing that another soldier is sick, that another soldier has passed on.”

Three

For Daniel Sullivan and the Torres family, acknowledgment from Capitol Hill and answers from scientists are important â€" but they’re also just a means to an end: medical care and disability benefits for veterans who were exposed to airborne toxins in Iraq and Afghanistan. After all, political influence and conclusive research will be meaningless unless the VA admits to a “presumptive” link between exposures during combat and subsequent health problems. The department has done it before, most notably for thousands of Vietnam veterans who blamed exposure to the herbicide Agent Orange for devastating illnesses. But the fight for that acknowledgment took decades, and today’s advocates are adamant that such a wait won’t happen again.

“I’m sure they would love to dwell in ignorance and bureaucracy for many more years,” Daniel says. “But what we owe to veterans is the best care they can get. Not a protracted battle just to get care in the first place.”

“If I were filling this out, I would think it was a trap. I would think it was a trap and I wouldn’t want to do it.”

Now, in part because of the dogged efforts of Daniel and the Torres, it looks like that protracted battle might be averted: the Obama administration in January mandated the creation of a VA registry for veterans of Iraq and Afghanistan. Called the “Airborne Hazards and Open Burn Pit Registry,” the online questionnaire is meant to allow veterans to log exposures and note their health concerns for monitoring and scientific research. The information from that registry could ostensibly be used to develop a list of illnesses presumptively linked to toxic exposures â€" meaning a veteran with constrictive bronchiolitis, like Le Roy, would readily qualify for disability benefits. “It shouldn’t have had to take an act of Congress, or the VA getting pushed against a brick wall,” Rosie says of the registry, which she lobbied for on Capitol Hill in 2012. “But we’ll take it. We want to work with them to make sure this is done right.”

But when the VA in July released a draft version of the questionnaire, scientists and advocates alike voiced significant concerns. Overall, they worried that the agency â€" already bogged down by costs associated with post-traumatic stress and traumatic brain injuries â€" was trying to disprove that toxic exposures might be a third serious health repercussion of the wars in Iraq and Afghanistan.

“I think it’s important that such a questionnaire meets at least a basic standard for occupational medicine,” Dr. Miller said at the time. “This one does not.” For Dr. Miller, that standard means offering space for veterans to self-report important information such as exposures, symptoms, doctor’s appointments, and relevant medical prescriptions. But the survey, primarily in multiple-choice form, instead offered a rigid framework that threatened to miss or exclude some ailing participants whose history or conditions didn’t fit tidily inside a checkbox.

Daniel Sullivan, after consulting with several scientists for their input, had a problem with more than just checkboxes. “The questionnaire is an insult,” he said. “It’s calculated in a way to get information to make a case that these illnesses are not exposure related.”

The draft included dozens of questions about non-combat exposures, including whether or not veterans ever smoked, worked in dusty offices, or had hobbies â€" like woodworking or pottery glazing â€" that might have exposed them to airborne hazards. In fact, such questions were more extensive than those about a veteran’s tours of duty. On a checklist asking about “current” illnesses, constrictive bronchiolitis was omitted. And then there was this single question on the survey’s eighth page: “During your pre-deployment, deployment, or post-deployment integration period, did you experience an emotional event that you would consider very stressful?” After seeing his own brother die when doctors dismissed his symptoms as psychological, Daniel Sullivan found that unforgivable. “When viewed in the context of what happened to my brother, and other people … this looks like an intentional effort to perpetuate the myth of these diseases being psychosomatic,” he says. “If I were filling this out, I would think it was a trap. I would think it was a trap and I wouldn’t want to do it.”

So Daniel Sullivan and the Torres fought back. Both submitted comprehensive critiques of the survey draft to the VA Office of Public Health, which led the survey’s development. Daniel even included letters from scientists â€" including Dr. Miller â€" to bolster the merit of his own statements. And in a heartening development, they won: the VA in September released an amended version of the survey that includes significant changes. Most importantly, constrictive bronchiolitis has been added, and mentions of psychological stress removed. These changes, Daniel hopes, signify a shift away from what he describes as “the polarizing divide that has for decades characterized the relationship between advocates who ask for change … and those officials who have the power to make those changes.”

The survey might now collect more valuable data, but whether that information is ever analyzed and acted on remains another question â€" one highlighted by the recent resignation of a top VA epidemiologist. In December of 2012, Dr. Steven Coughlin abruptly quit his job with the VA Office of Public Health over what he describes as “serious ethical concerns” with regards to ongoing VA studies. More specifically, Coughlin alleges that his VA colleagues often suppressed or changed valuable data about the health of veterans from OIF, OEF and the Gulf War. In one specific instance, he says he was ordered to conceal data from the VA’s New Generation Study â€" a long-term questionnaire of 60,000 OIF and OEF veterans â€" that asked about burn pit proximity, potential airborne exposures, and related health woes.

“I was being told ‘don’t look at the data, we’re not going to look at the data closely,’” Coughlin says, adding that he was threatened with disciplinary action if he didn’t abide the command. “It was just an untenable position for me, because what my supervisors were doing was greatly unethical.”

Where this latest survey is concerned, Coughlin isn’t optimistic. He describes the changes as “positive,” but also notes that the VA doesn’t exactly boast a legacy of excellence.

“The VA often has difficulty doing the right thing when it comes to examining environmental health hazards,” he writes in an email to The Verge. Which makes politicians like Tim Bishop, and advocates like Rosie, Le Roy, and Daniel, all the more important. “Continued congressional oversight and external peer review are essential,” Coughlin warns, in order to keep the VA accountable.

Four

“We’re not going to shut up. We’re not going to go away.” Rosie is resolute in that mantra, and vows that she and Le Roy don’t need a whistleblower, or VA data, to tell them what they already know: thousands of veterans are sick, an untold number are at risk, and the military and VA are paying lip-service to a burgeoning crisis. The next Agent Orange, they worry, is already here. “We have to keep going, because time is of the essence for these veterans,” Rosie adds. “How many more need to get sick? How many more need to pass away? I just want to tell the government… to do something.”

After being diagnosed with constrictive bronchiolitis in 2010, Le Roy was permanently dismissed from his state trooper job â€" leaving him unemployed. Medical bills constantly threaten to overwhelm the family’s mortgage payments, and they’ve already once been forced to vacate their home. Still, there’s no indication that life for the Torres will get any better: after a protracted dispute with the VA, the pair thought they’d achieved a minor victory when the agency agreed to reimburse Le Roy’s cross-country visits to Dr. Miller. Months later, Rosie learned that the VA had “lost” their paperwork. They’ll need to start over. Meanwhile, Le Roy is back in the hospital: his headaches are coming more frequently now, and doctors worry that a mysterious lesion on his brain’s left frontal lobe might somehow be responsible.

But if you ask Rosie and Le Roy, they’ll still tell you they’re among the lucky ones. He is alive, after all, when servicemembers like Tom Sullivan aren’t. Even after experiencing firsthand the lifelong toll that war can impose, and grappling with how he and other veterans are being treated upon their return, Le Roy vows that he’ll never regret having served. In fact, he would go to Iraq all over again â€" even knowing what he does now.

“They may have taken my health, but they can’t take what I stand for,” Le Roy says. “I will be a patriot until the day that I die. Until they hang that flag on my coffin, I will continue to honor this country.”

  • Editor: Joseph L. Flatley
  • Front End Designer: Scott Kellum
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Monday, October 28, 2013

Missing Millions

The American Legacy Foundation’s headquarters in Northwest Washington The American Legacy Foundation’s headquarters in Northwest Washington (Linda Davidson/The Washington Post)

Written by Joe Stephens Mary Pat Flaherty

For 14 years, the American Legacy Foundation has managed hundreds of millions of dollars drawn from a government settlement with big tobacco companies, priding itself on funding vital health research and telling the unadorned truth about the deadly effects of smoking.

Yet the foundation, located just blocks from the White House, was restrained when asked on a federal disclosure form whether it had experienced an embezzlement or other “diversion” of its assets.

SEE ALSO: Read about how a trusted bookkeeper was embezzling money from a nonprofit rowing club in Virginia, plus how this story was reported.

Legacy officials typed “yes” on Page 6 of their 2011 form and provided a six-line explanation 32 pages later, disclosing that they “became aware” of a diversion “in excess of $250,000 committed by a former employee.” They wrote that the diversion was due to fraud and now say they believe they fulfilled their disclosure requirement.

Cheryl Healton is Legacy’s founding president and chief executive. Cheryl Healton is Legacy’s founding president and chief executive. (Courtesy of American Legacy Foundation)

Records and interviews reveal the full story: an estimated $3.4 million loss, linked to purchases from a business described sometimes as a computer supply firm and at others as a barbershop, and to an assistant vice president who now runs a video game emporium in Ni­ger­ia.

Also not included in the disclosure report: details about how Legacy officials waited nearly three years after an initial warning before they called in investigators.

“We’re not innocent in this,” said Legacy chief executive Cheryl Healton. “We are horrified it happened on our watch. . . . The truth hurts â€" we screwed up.”

A Washington Post analysis of filings from 2008 to 2012 found that Legacy is one of more than 1,000 nonprofit organizations that checked the box indicating that they had discovered a “significant diversion” of assets, disclosing losses attributed to theft, investment fraud, embezzlement and other unauthorized uses of funds.

The diversions drained hundreds of millions of dollars from institutions that are underwritten by public donations and government funds. Just 10 of the largest disclosures identified by The Post cited combined losses to nonprofit groups and their affiliates that potentially totaled more than a half-billion dollars.

While some of the diversions have come to public attention, many others â€" such as the one at the American Legacy Foundation â€" have not been reported in the news media. And The Post found that nonprofits routinely omitted important details from their public filings, leaving the public to guess what had happened â€" even though federal disclosure instructions direct nonprofit groups to explain the circumstances. About half the organizations did not disclose the total amount lost.

The findings are striking because organizations are required to report only diversions of more than $250,000 or those identified as having exceeded 5 percent of an organization’s annual gross receipts or total assets. Of those, filing instructions direct nonprofits to disclose “any unauthorized conversion or use of the organization’s assets other than for the organization’s authorized purposes, including but not limited to embezzlement or theft.”

send a tip: Has your nonprofit experienced a significant diversion of assets? Contact the reporter.

As part of its analysis, The Post assembled the first public, searchable database of nonprofits that have disclosed diversions, available at ­wapo.st/diversionsdatabase. Groups on the list were identified with the assistance of GuideStar, an organization that gathers and disseminates federal filings by nonprofits.

Examples of financial skullduggery abound in the District, throughout the Washington region and across the United States.

A few blocks from Legacy’s offices on Massachusetts Avenue, the nonprofit Youth Service America reported two years ago that it discovered a diversion in 2009 of about $2 million that had been “misappropriated” by a former employee. After The Post asked about the incident, he was charged in federal court and in June was sentenced to four years in prison for theft.

A few blocks in the other direction is the Alliance for Excellent Education, which disclosed four years ago that investment manager Bernard L. Madoff’s Ponzi scheme had wiped nearly $7 million from its balance sheets. In a statement to The Post, officials there called the figure a “paper” loss.

A few blocks farther is AARP, the national charity that advocates for older Americans. In 2011, it disclosed two incidents with losses totaling more than $230,000, attributed to embezzlement and billing irregularities. An organization spokesman said no one has been charged in those incidents.

And just outside the Beltway, the Maryland Legal Aid Bureau, with offices throughout the state, disclosed two years ago that a former finance director and an accomplice had been convicted of making off with $1.1 million; officials there said in interviews they now think the total loss was closer to $2.5 million.

Investment fraud was blamed for some of the largest losses identified. Funds linked to Madoff’s scheme, which bilked investors across the country for decades, reportedly drained $106 million from Yeshiva University and its affiliates, $38.8 million from the Upstate New York Engineers Health Fund and $26 million from New York University, according to the disclosures they filed.

But hefty sums disappeared in many other ways, too:

●The Global Fund to Fight AIDS, Tuberculosis and Malaria, based in Geneva but registered and largely financed in the United States, reported in 2012 that it had found evidence of misuse or unsubstantiated spending of $43 million in grant funds.

●The Conference on Jewish Material Claims Against Germany, a New York-based charity for Holocaust survivors, reported in 2010 that it had been bilked out of $42 million in an elaborate, decade-long conspiracy by swindlers who created thousands of fake identities. A spokesman said the estimate has since been raised to $60 million.

●The Vassar Brothers Medical Center in Poughkeepsie, N.Y., in 2011 reported a loss of $8.6 million through the “theft of certain medical devices.” A medical center spokeswoman said a confidentiality agreement prohibited her from explaining further.

●The Miami Beach Community Health Center in 2012 reported losing $7 million to alleged embezzlement by its former chief executive, later convicted of theft.

● Columbia University disclosed in 2011 that it had been defrauded of $5.2 million in “electronic payments.” A university spokesman confirmed that the disclosure referred to an incident involving a former university accounting clerk and three associates, later convicted of redirecting $5.7 million meant for a New York hospital.

●And the 140-year-old Woodcock Foundation of Kentucky, which awards scholarships to students in need, disclosed that alleged fraud by a former chairman drained more than $1 million from its accounts, leaving the charity with assets totaling just $8.

“You go out of your way to trust a nonprofit. People give their money and expect integrity. And when the integrity goes out the window, it just hurts everybody. It hurts the community, it hurts the organization, everything. It’s just tragic.” The Rev. Raymond Moreland, Maryland Bible Society

Each year, larger registered nonprofits file a form with the federal government that lays out their mission, leadership, revenue and expenses. The question about diversions was added to the forms with little fanfare in 2008, one of several changes meant to make it easier for the public to gauge how well nonprofit organizations manage money.

While the losses identified in The Post’s study total hundreds of millions of dollars, they represent only a fraction of the total. The new question was phased in over three years and appears only on forms submitted by larger nonprofit groups. Private foundations and many smaller groups fill out alternative forms or no forms at all.

The Internal Revenue Service has said little about what information it has gathered from the responses, beyond reporting last year that 285 diversions totaling $170 million had been disclosed in one year alone, 2009.

Chicago lawyer and governance consultant Jack B. Siegel, an early proponent of adding the diversions question to the disclosure forms, said he had hoped it would allow the public to discover for the first time just how much theft was taking place and would discourage organizations from covering up problems.

“People should follow up and ask, ‘Are you properly monitoring the money I’ve given you?’ ” Siegel said. “If I’m giving you my money and you’re wasting it by allowing people to steal it, why should you be allowed to hush that up? Why shouldn’t I know that?”

More than 1.6 million nonprofit groups are registered with the federal government, and they control more than $4.5 trillion in assets. An additional 700,000 organizations, such as churches and smaller groups, need not register.

From 2000 to 2010, the number of registered nonprofits increased by 24 percent, according to an Urban Institute study. Annual revenue at such organizations, adjusted for inflation, grew by 41 percent.

Those nonprofits perform vital work in the community and depend on public goodwill, volunteers and donations. But the public’s stake in the organizations is even greater. Tax benefits extended to nonprofit organizations and their donors cost the U.S. Treasury about $100 billion a year in foregone revenue, according to the Congressional Research Service â€" a form of subsidy meant to further the organizations’ good works.

As it has grown, the nonprofit sector has repeatedly run into accountability problems, prompting congressional inquiries over the past decade into groups as varied as the Nature Conservancy and the Smithsonian Institution.

“We need to seek out and stop those who are hiding behind tax-exempt status for their own gain,” Senate Finance Committee Chairman Max Baucus (D-Mont.) said in 2007 after a string of high-profile financial scandals.

Little comparative data are available about the prevalence of fraud across business sectors. But a 2012 study by Marquet International, a Boston-based security firm that conducts an annual study of white-collar fraud, concluded that nonprofits and religious organizations accounted for one-sixth of major embezzlements, placing second only to the financial-services industry.

John D. White, president of the Virginia Scholastic Rowing Association, says his group is  trusting of no one after its longtime treasurer embezzled money that has prevented the association from making needed improvements. John D. White, president of the Virginia Scholastic Rowing Association, says his group is trusting of no one after its longtime treasurer embezzled money that has prevented the association from making needed improvements. (Matt McClain/The Washington Post)

“I come across these cases all the time,” said Christopher T. Marquet, who heads the firm. He said oversight at nonprofits is often thinner and supervisors more trusting. “The control structures in these organizations are much weaker,” he said.

In Legacy’s case, its report not only failed to disclose the total of its estimated loss but also did not reveal that multiple diversions had occurred over seven years and that they were not discovered until more than a decade after they began.

Roughly half the organizations examined in the Post study did not appear to have revealed the full amount lost, even though federal filing instructions direct charities to disclose the amounts or property involved.

Some organization officials said in documents and interviews that they chose not to alert police, instead settling for restitution, which often meant they also avoided public attention.

In interviews, some organizations said estimates of their losses had changed since their filings. The Post also found that a small percentage of groups chose to disclose financial restructurings, mergers and other types of financial losses, even though they involved no apparent wrongdoing.

The groups filing the reports were as varied as the nonprofit sector itself.

Locally, Georgetown University reported in 2012 that an unidentified administrator paid himself $390,000 in “unapproved compensation” over four years from a bank account the university did not know existed. No one was charged.

The Virginia Scholastic Rowing Association in Alexandria said it lost as much as $223,000 â€" an estimate the association president now has raised to $500,000 â€" to a longtime bookkeeper, later convicted of embezzlement.

“People are going to say, ‘You stupid people,’ ” said the group’s president, John D. White. “They’re exactly right. You have to pay attention.”

The Virginia Scholastic Rowing Association says it had no idea the “queen” of regattas was quietly spending tens of thousands of dollars on things such as NFL tickets, vacations and cable TV. The Post’s Lee Powell explains how a nonprofit group got taken. (The Fold/The Washington Post)

And the 200-year-old Maryland Bible Society of Baltimore disclosed that it had been defrauded of an undetermined amount by an unnamed former employee.

“It’s sadder when it happens to a nonprofit,” said the Rev. Raymond More­land, a Bible Society official who said in an interview that a former secretary took $86,000 by falsifying checks and misusing credit cards, then concocted fake audit reports to cover her trail. “You go out of your way to trust a nonprofit. People give their money and expect integrity,” he said. “And when the integrity goes out the window, it just hurts everybody. It hurts the community, it hurts the organization, everything. It’s just tragic.”

The former secretary was convicted of theft, Moreland said, but “the scar is still there.”

Legacy’s big loss

The American Legacy Foundation is a revealing case study. While some challenges it faced were uncommon, fraud examiners said many resemble those they see time and again.

Legacy was founded as a nonprofit organization in 1999 out of the Master Settlement Agreement that resolved health claims brought against cigarette companies on behalf of the public by authorities in 46 states and the District.

With $50 million in annual expenditures and $1 billion in assets, Legacy is perhaps best known for its edgy anti-tobacco advertising campaign known as “Truth.’’ In one high-profile stunt, Legacy filmed young people piling hundreds of body bags outside a cigarette company’s headquarters in Manhattan, graphically depicting the daily toll of tobacco-related illness.

“Being an honest and dependable source of information is our bread and butter, because the minute we start bending and manipulating the truth, we’re no better than the tobacco industry,” the organization says on its “Truth” Web site.

Its board includes Idaho Attorney General Lawrence Wasden (R), its chairman; Missouri Gov. Jay Nixon (D); Utah Gov. Gary R. Herbert (R); and Iowa Attorney General Tom Miller (D). Janet Napolitano, the recently departed U.S. secretary of homeland security, served on the board, and Sen. Thomas R. Carper (D-Del.) was Legacy’s founding vice chairman.

When first asked by The Post about gaps in their disclosure report, Legacy officials declined to provide full details. But they said they had a change of heart when they later learned that authorities did not plan to seek charges against the man they thought was responsible for the group’s loss.

After discussions with The Post, Legacy officials supplied copies of some documents and financial data related to what they allege was a fraud committed by one of their most beloved former employees.

Deen Sanwoola, they said, was a charismatic computer specialist who was Legacy’s sixth hire. He was tasked with building the organization’s information technology department.

No one realized, during Legacy’s frenetic early days, that the department had been formed without adequate financial controls, Legacy officials said. Or that Sanwoola had been placed in charge of both ordering electronic equipment and logging it as having been received â€" a mix of responsibilities that an outside auditor later described as a classic error that placed Legacy at risk.

“He had the keys to the kingdom of IT,” said Healton, who as Legacy’s president and chief executive received a compensation package worth $729,000 in fiscal 2012.

Reached by phone recently, Sanwoola, 43, told The Post he has had no contact with Legacy for six years and had no idea that anyone had raised questions about his department’s operations. “You’re kidding, right?” Sanwoola asked.

Sanwoola promised to call back with additional information. He did not and did not respond to numerous subsequent attempts to contact him by telephone and e-mail about Legacy’s allegations that he defrauded the organization.

After Sanwoola’s arrival in October 1999, Legacy’s IT department began spending freely on computers, monitors and software, much of it purchased from a single company in suburban Maryland, Healton said. Thanks to the court settlement, Legacy enjoyed a tremendous flow of cash, with revenue exceeding $320 million.

The first questionable purchase came in December 1999, according to a forensic audit conducted years later. “The fraudulent billing started almost immediately on his arrival,” said Wasden, the board chairman.

In that first transaction, the foundation paid more than $18,000 for a computer processor and related equipment that auditors concluded should have retailed for less than $7,000.

Data, documents and a summary of findings that Wasden provided to The Post show that questionable purchases of printers, software and servers steadily increased in size and frequency, peaking with 49 charges in 2006. In some instances, Legacy appeared to have paid many times an item’s worth, auditors said. In others, auditors said Legacy paid an inflated price for “phantom purchases” of equipment that apparently never arrived.

Anthony T. O'Toole, executive vice president and chief financial officer for Legacy. Anthony T. O'Toole, executive vice president and chief financial officer for Legacy. (Courtesy of American Legacy Foundation)

Over years, Sanwoola is thought to have generated as many as 255 invoices for computer equipment sold to the foundation, Legacy officials said; 75 percent of them later were deemed by the foundation to have been fraudulent. During that period, the officials said, Sanwoola developed close personal ties to Legacy’s chief financial officer, Anthony T. O’Toole.

“Everybody loved Deen,” O’Toole acknowledged.

In early 2007, Sanwoola, by then an assistant vice president with a $180,000 compensation package, announced he was leaving. It jolted Healton, who said she “begged” him to stay. O’Toole recalled Sanwoola saying that his wife wanted to raise their children in Nigeria and that the move would allow him to help his ailing mother.

And that appeared to be the end of it.

Until six months later, when an executive at Legacy approached O’Toole and told him he was unable to locate computer equipment listed in the inventory. O’Toole said he waved away the complaint without bothering to investigate.

“He just pooh-poohed it,” Healton said of O’Toole, who received current and deferred compensation totaling $568,000 in fiscal 2012.

Three years later, the same employee â€" Legacy officials describe him as a whistleblower â€" again raised an alarm. This time, he bypassed O’Toole and took his concerns to a staffer close to Healton.

The response this time was different. Within days, Legacy hired forensic examiners to investigate and Healton notified the board.

One of the outside auditors’ first reactions, Healton recalled, was, “There’s no way an organization like yours could spend this much on IT.”

Auditors interviewed employees, reviewed invoices and recovered deleted files from a backup computer server in Chicago. Auditors found a template for invoices from the outside supply company, Legacy officials said, as well as computer code that showed the template had been designed and generated by someone using Sanwoola’s log-in.

Officials concluded that of $4.5 million in checks and credit card charges associated with the Maryland IT supply company, $3.4 million had been fraudulent.

Legacy officials and their auditors did not provide The Post with any documentation showing how Sanwoola, who is not named as a director on the supply company’s incorporation records, personally benefited from the sales. In a written statement, Legacy officials said, “we have no information or opinion regarding whether anyone other than Sanwoola had any involvement in any fraud or other improper activity.”

“We stumbled,” Wasden said. “There are kids out there we could have touched that we didn’t, because this money was taken from our coffers.”

In late 2010 or early 2011, foundation executives asked Miller, the Iowa attorney general on Legacy’s board, to call the office of the U.S. attorney.

From Legacy to Fun City

Legacy officials said they had made no attempt to contact Sanwoola, based on a request from federal prosecutors. In a statement for this article, the U.S. Attorney’s Office responded that they had made no such request.

The Post located Sanwoola in Lagos, Nigeria, where he said he continued to work in IT and owned a business â€" he is “mayor” of Fun City, a brightly painted children’s amusement center featuring refreshments and a variety of video games. “I love games,” he said in a brief telephone conversation.

Sanwoola said that there were no problems during his tenure at Legacy and that he had heard no complaints since his departure. He initially questioned whether a reporter’s call was a trick orchestrated by tobacco companies.

“Are you serious?” he asked when told of the investigations. “Wow. . . . I’m kind of bothered and concerned. Why couldn’t they just call me up and say, ‘Hey, we’re doing an audit. This is what we found out. What’s going on?’ ”

American Legacy Foundation board member Tom Miller, center left, who is Iowa’s attorney general, and Legacy Chairman Lawrence Wasden, the attorney general of Idaho, sit on a panel discussing the 1998 tobacco settlement Wednesday at the National Press Club. American Legacy Foundation board member Tom Miller, center left, who is Iowa’s attorney general, and Legacy Chairman Lawrence Wasden, the attorney general of Idaho, sit on a panel discussing the 1998 tobacco settlement Wednesday at the National Press Club. (Mary F. Calvert/For The Washington Post)

“It’s way more than a shock to me, coming to me after more than six years,” Sanwoola said. “If they are putting it on me â€" I don’t get it. . . . Using the word ‘defrauded’ is just frustrating my head. I need to sit down and get my head together.”

The invoices that auditors identified as questionable purported to have come from Xclusiv, a Maryland company that appears to no longer be in business. Some invoices used the slightly different spelling of Xclusive.

Contacted by The Post, neither of the men listed as corporate directors said he knew Sanwoola. One of them, Mack Adedokun, said he had never heard of Legacy and that Xclusiv had been a barbershop, not an electronics supply company. The other, Abdul R. Yusuf, said that the company had sold computers to Legacy but that he was unsure how many or who had arranged it. He declined to say who controlled Xclusiv.

Yusuf said he did not know how personal papers bearing his name and Social Security number had ended up on documents that Legacy said were recovered from Sanwoola’s computer, but Yusuf speculated that he may have been the victim of identity theft.

Told that property records showed Sanwoola had once bought a home in Greenbelt from a man bearing Yusuf’s name, Yusuf said that probably was his brother, who had the same name, shared the same address and has since died. “I’m just hearing all of this for the first time,” Yusuf said of details about Legacy’s claims. “I don’t know what you’re talking about. It’s so scary.”

Disclosure

Word that millions of dollars were thought to be missing remained largely within Legacy until it came time in 2011 to file its annual disclosure, a public document signed under penalty of perjury.

The disclosure said that the “fraud” of more than $250,000 did not “meet other materiality tests for financial reporting” and that the organization had told its board and law enforcement. It also said Legacy had filed an insurance claim that had been “successfully settled.” The document did not reveal that the settlement fell far short of the loss.

When first approached by The Post, Legacy general counsel Ellen Vargyas said the organization had no obligation to identify the full estimate of the loss and stressed that more information was in the foundation’s 2012 filing. That filing included a reference to $1.3 million in miscellaneous revenue from an insurance settlement, without saying what it was for.

“I do think it was a full and appropriate disclosure,” Vargyas said.

Legal specialists consulted by The Post disagreed. “Those suffering a diversion are obligated to report the dollar amount,” said Gary R. Snyder, a charity consultant who tracks fraud.

Legacy’s board has included prominent public officials such as former U.S. homeland security secretary Janet Napolitano. Legacy’s board has included prominent public officials such as former U.S. homeland security secretary Janet Napolitano. (Lee Jin-man/AP)

Former Utah governor Jon Huntsman Jr. also has served on Legacy’s board. Former Utah governor Jon Huntsman Jr. also has served on Legacy’s board. (Charles Krupa/AP)

Federal filing instructions direct nonprofits to “explain the nature of the diversion, amounts or property involved . . . and pertinent circumstances.” Charity specialists said there is no established penalty for a nonprofit that fails to follow the instructions.

A day after declining to disclose the amount to The Post, Vargyas reconsidered. “Our best estimate of the full loss comes to this: $3,391,648,” she wrote in an e-mail. She said her initial reluctance to disclose an amount was because Legacy’s number was based on estimates that had “never been tested in a court of law.”

Wasden added that the absence of a total dollar figure in its public filing was the foundation’s way of being restrained in describing its loss, in deference to the then-continuing federal investigation. The U.S. Attorney’s Office stressed, however, that it did not suggest that Legacy play down the size of the loss in its disclosure.

Legacy officials said they were told in March, for the first time, that there would be no charges. The U.S. Attorney’s Office disputed that, saying the FBI informed Legacy in February 2012 that the investigation had been closed because, despite warnings, Legacy had taken more than three years to report the missing computers and lacked reliable records of what it owned.

Healton said she had expected the criminal case to clear the way to recover its money. But now there also will be no civil lawsuit seeking repayment, Legacy officials said; as with the criminal case, the statute of limitations has passed.

“No excuses. It’s a terrible loss, and it shouldn’t have happened,” Healton said. “If we lost $3.4 million, that’s $3.4 million that did not go to save lives.”

Vargyas said officials had taken the discovery “enormously seriously” and are dedicated to avoiding a recurrence.

“Obviously, we have to do better,” Vargyas said. “We do view ourselves as holding a public trust.”

Dan Keating and Jennifer Jenkins contributed to this report.

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