With tensions between Israel and Iran running sky high over the latter's nuclear program, U.S. officials and military analysts are growing increasingly concerned that Israel will launch a multi-phase air and missile attack that could trigger waves of retaliatory missile strikes from Tehran.

Such a shootout could quickly spiral into a regional conflict that would potentially force the U.S. to intervene to protect its interests.

The emerging consensus among current and former U.S. officials and other experts interviewed by NBC News is that that an Israeli attack would be a multi-faceted assault on key Iranian nuclear installations, involving strikes by both warplanes and missiles. It could also include targeted attacks by Israeli special operations forces and possibly even the use of massive explosives-laden drones, they say.

The Iranian response to such an attack is uncertain, but many experts and officials believe it is likely to include retaliatory missile strikes. Iran has more missiles in its arsenal than Israel, according to some estimates, and has the capability of striking targets in most Israeli population centers.

"I think that it would strike Iran as a reasonable response, an eye for an eye," said Christopher J Ferrero, a professor of diplomacy at Seton Hall University in New Jersey and an expert on Middle East missile forces.

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He also said Iran would likely attack major cities with its Shahab 3 missiles, which he said are not as accurate as the Israeli missiles, but would be an effective "instrument of terror … that could certainly cause significant damage to heavily populated suburban and urban areas.

 

 

Israel possesses advanced anti-missile defenses, but those systems could be overwhelmed if Tehran launched large numbers of missiles, as Ferrero expects.

Given the immense difficulties in carrying out successful air strikes on the four key Iranian installations using its warplanes alone -- as laid out last week by the New York Times, U.S. officials say Israel would be likely to coordinate such airstrikes with waves of missiles. This would greatly increase the chances of penetrating fortifications that Iran has built to protect some of its key installations and overwhelm Iran's air defenses, said the former and current U.S. officials, who spoke on condition of anonymity.

"Two words:  Jericho missiles," said one former White House and Pentagon official, speaking on condition of anonymity, when asked how Israel would attack Iranian targets at great distances. "They are conventionally armed, have a very small CEP (circular error of probability, meaning they are highly accurate) and can be used in conjunction with a strike fighter operation."

Israel has as many as 100 Jericho ballistic missiles – both short- and medium-range – as well as submarine-launched cruise missiles, though the officials say they believe the latter are unlikely to be used. The short-range Jericho I missiles would be of no use in an attack on Iran, because the targets are far beyond its 300-mile range. However, the  medium-range Jericho II's are capable of  hitting targets as far as 900 miles away – or as far east as Tehran. Israel also tested a Jericho III intercontinental ballistic missile in 2008 and Israeli media have reported that it may have deployed one or more of the weapons, which would put all of Iran within reach.

The missiles would most likely be launched from the Hirbat Zekharyah missile range, midway between Israel and the Mediterranean Coast, according to "Critical Mass: the Dangerous Race for Superweapons in a Fragmenting World," by William E. Burrows and Robert Windrem, and various Israeli press reports.

Although designed to be part of Israel's nuclear deterrent force, the Jerichos can be equipped with high explosives as well as nuclear warheads. U.S. officials have said that an Israeli attack, if it happens, would be intended to surgically take out the nuclear facilities, not inflict the mass casualties that would result from a nuclear attack.

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Iran has no capability to defend against a missile strike, said Ferrero, the expert on Middle East missile arsenals.

"If the Jerichos are accurate enough to get to their targets, they will get to their targets," he said.

What Iran does have is hundreds of Shahab 3 medium range ballistic missiles, according to U.S. estimates. The Shahab 3 also has a range of roughly 900 miles.

Israel, possibly supplemented by U.S. shipborne anti-missile systems – the Aegis Standard Missile-2 -- could intercept and destroy some of the incoming Iranian missiles, said Ferrero. But the numbers favor Iran, he said.

"I believe that (the Iranians) have a sufficient inventory that they could overwhelm those missile defenses and still get enough missiles through to cause damage," he said.

The critical factor may be the number of  missile launchers in Iran's inventory, Ferrero said, because penetrating Israel's defenses would require numerous  missiles, but also enough launchers to be able to fire them off simultaneously. That number is a closely guarded secret, he said.

Additionally, U.S. intelligence estimates say Iran has supplied Hezbollah with more than 40,000 short-range rockets and missiles since 2006. However, U.S. officials are uncertain whether Hezbollah would follow Iranian orders, and risk Israeli retaliation or, if they did, how many they would fire.  The majority of the rockets and missiles are unguided.  Israel and the U.S. have worked on a short-range missile defense system called Iron Dome, but there are concerns that waves of attacks could overwhelm the system.

Also open to question in U.S. and Israeli military circles is whether an Israeli attack would meet its objective: setting back the Iranian nuclear program anywhere from two to five years.

U.S. officials say Israel would be likely to concentrate its attacks on four key Iranian nuclear complexes. Key facilities within those complexes – the Natanz and Fordo centrifuge facilities, both south of Tehran; the Arak research reactor, southwest of Tehran; and a uranium hexafloride production and research facility near the city of Isfahan – are protected by heavy fortifications, they said.

The Jerichos are stored in tunnels in limestone formations around Hirbat Zekharyah and rolled out for firing. They would likely be used as part of a one-two punch, the officials say. The first attack would be carried out by Israeli strike fighters and would be intended to breach the heavily fortified outer ceilings of the facilities. The second (and possibly even third) wave would be missile attacks aimed at destroying the facilities within, the officials said. 

Asked if Jerichos would have the accuracy and the explosive power to take out hardened bunkers or fortifications believed to be protecting Iran's most-sensitive underground nuclear facilities, a current U.S. official replied, "You would be surprised at their accuracy." The official added that the missiles' warheads would contain a special mix of explosives that could penetrate the Iranian defenses.

U.S. officials also say Israel may have learned the location of facilities that fabricate centrifuge components. These, too, could be targeted.

A 2010 book on the possibility of an Israeli attack laid out the difficulties Israel would face if it attempted to use only its strike fighters on those targets.

 "Attacks against the sites at Natanz, Isfahan and Arak alone would stretch Israel's capability and planners might be reluctant to enlarge the raid further," wrote authors Steven Simon and Dana H. Allin, in "The Sixth Crisis – Iran, Israel and the Rumors of War." Simon, then a fellow at the Council on Foreign Relations, now heads the Middle East Desk at the National Security Council.

The biggest problem is the fortification of the two centrifuge facilities. Simon and Allin describe the challenge using aircraft only.

"Natanz is the only one of the … likely targets that is largely underground, sheltered by up to 23 meters (75 feet) of soil and concrete," they wrote. "… Bombs used in a ‘burrowing' mode, however, could penetrate deeply enough to fragment the inner surface of the ceiling structures above the highly fragile centrifuge arrays and even precipitate the collapse of the entire structure."

But for the attack to have high odds of success, they argue, aircraft would have to drop additional bombs into the cavities created by the first bombs. That would require "time on target" -- a luxury that the Israeli jets at the outermost limits of their 1,100-mile range would likely not have. While they estimate the success rate of such a plan at "better than 70 percent," they call it "complicated and highly risky."

Another difficulty for attacking Israeli aircraft would be finding a route to the targets that could be flown covertly or with the tacit approval of Sunni Arab states, who are at least as frightened of an Iranian nuclear capability as the Israelis.

Simon and Allin (and others) have written that there are three "plausible routes" that Israeli warplanes would take to attack Iran: a northern approach, likely along the Syrian-Turkish border; a central path that would take them over Jordan and Iraq; and a southern route that would transit the lower end of Jordan, Saudi Arabia and Kuwait. The southern route is the most likely, U.S. officials suggest, because the Saudis and other Sunni-dominated Gulf states are eager for someone to take out the Iranian threat. They prefer the U.S. do it, but have reportedly shared intelligence on the Iranian program with the Israelis, if only on a limited basis, according to the U.S. officials.

No matter what route the fighter bombers take, they would use what one U.S. official described as "high-low, low-high" flight paths – flying high first to increase fuel efficiency, then low for most of the trip to evade radar, then climbing high again as the bombs are released in what is known as a "flip toss" from as far as 10 miles from the target.

The Israelis would be prepared to lose aircraft if necessary, the officials said.

Although Simon and Allin do not discuss adding a missile component, other experts, including many current and former U.S. officials, believe the Israelis already have made a decision to have them in the attack menu.

Missile attacks would be coordinated with fighter-bomber attacks (presumably, the Israelis' F-16, F-18 and extended-range F-15I Strike Eagle). The missiles would have to be launched so that warheads strike targets following the strike fighter attacks.  Because of the short flight time, minutes rather than hours in the case of the aircraft, the missile launch would almost certainly take place at the last possible moment to ensure the secrecy of the overall attack.

The Israelis are not planning to use their submarine-launched cruise missile force -- "not enough of them," one official said of the subs. (The Israelis have long had nuclear tipped sub-launched cruise missiles as part of their deterrent force.) 

Beyond the strike fighters and the missile force, U.S. officials suggest the Israelis could use two other "weapons" against Iran.

The first is special operations forces that would be secretly inserted into the country. At the least, they could be employed to illuminate aim points for laser-guided bunker-busting bombs. At the most, they could launch their own attacks on facilities, particularly those believed to contain enriched uranium.

The other is a new generation of large drones with wingspans approaching those of a Boeing 777  (almost 200 feet). Costing $30 million each, the Heron drones are capable of remaining airborne for 40 hours at a time and have a range of 4,600 miles. While they can be equipped with surveillance and electronic warfare equipment, some officials call them "strike drones," meaning they could be loaded with explosives and used to attack Iranian targets.

While the initial days of an Israeli-Iranian conflict would probably be bloody, most experts say that the open warfare would be expected to wind down within days or weeks, since neither side has the ability to occupy the other's territory or enough missiles to sustain attacks.

But that would bring with it its own set of problems, as the conflict would be likely to continue on a lower level, involving covert operations and terrorism.

"You could have a very nasty covert war emerge," said Ferrero.

Robert Windrem is a senior investigative producer for NBC News.

The Obama administration, responding to restrictions imposed by Congress, issued guidelines late Tuesday on when the FBI can take custody of newly arrested terrorism detainees.

It's clear the federal government intends to squeeze as much flexibility as it can from the restrictions included in the National Defense Authorization Act for Fiscal Year 2012 aimed at giving the military control of those detainees.

What to do with captured terrorists has divided Congress. The issue came to a flash point after the arrest of Umar Abdulmutallab, the so-called “Underwear Bomber,” who attempted to detonate explosives on a Detroit-bound flight from Amsterdam.

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Some Republicans called to have Abdulmutallab tried before a military commission and declared an enemy combatant. Some Democrats pushed for him to be tried in civilian court, where he eventually pleaded guilty and was sentenced to life in prison.

The new law requires that the United States military take custody of non-U.S. citizens closely linked to al-Qaida who have helped plan or carry out an attack against the U.S. or one of its coalition partners. But under the regulations issued late Tuesday, that won't happen instantly.

"A rigid, inflexible requirement to place suspected terrorists into military custody would undermine the national security interests of the United States," says the policy directive issued by the White House.

Under the new procedures, a federal agent who suspects that a terrorist might fall under the rules must notify the U.S. attorney general. The suspect could be transferred to military custody only with the approval of the attorney general, chairman of the joint chiefs, director of national intelligence, and the secretaries of the State, Defense, and Homeland Security departments.

Even then, the suspect might be transferred back to civilian custody to be put on trial, the rules say.

The law also gives the president authority to waive the military custody requirement for individuals or entire categories of cases. President Obama has issued waivers in advance for certain situations, including times when "placing a foreign country's nationals or residents in military custody will impede counterterrorism cooperation," or when a foreign government refuses to extradite a suspect to the U.S. if that would mean placing the suspect in military custody.

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Federal prosecutors have subpoenaed documents and computer hard drives from Penn State University as part of a new criminal probe into what school officials and board members may have known about alleged child sex abuse by former football defensive coordinator Jerry Sandusky. 

Investigators are also trying to determine if Penn State board members may have made previously undisclosed payments to "third parties" relating to Sandusky, according to the subpoena, a copy of which was obtained by NBC News.

As part of their investigation, federal prosecutors also recently sought files about Sandusky from the family of the late Penn State football coach Joe Paterno. Wick Sollers, a lawyer for the Paterno family, told NBC News that federal prosecutors have asked him for all the late coach’s records on  Sandusky, who served as an assistant coach and defensive coordinator at Penn State for nearly 30 years until his retirement in 1999. Sollers said he is voluntarily turning over the Paterno’s files on Sandusky without a subpoena and fully cooperating with the probe.

The broad scope of the subpoena indicates that federal agents may be investigating a potential cover-up of Sandusky's alleged abuse by top school officials, according to three sources familiar with the case, all of whom spoke on condition of anonymity. It seeks records -- including internal emails -- dating to 1998 from the computers and files of Sandusky and three former top Penn State officials: former President Graham Spanier, former Athletic Director Tim Curley and former Vice President Gary Schultz, who was in charge of the campus police.

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All three were named in a Pennsylvania state grand jury report in November as having been told about an allegation relating to Sandusky and a young boy in the school's athletic locker room in 2002. Spanier subsequently resigned and Curley and Schultz were were fired by the university. All have denied any wrongdoing. 

The subpoena also seeks records about Penn State board members and The Second Mile, the charity for troubled children that Sandusky founded. The subpoena was signed by two federal prosecutors in the office of U.S. Attorney Peter Smith in Harrisburg, Pa. on Feb. 2 and demands that all records be turned over by Feb. 29, they said.

NBC News has learned that Sandusky had access to a Penn State Internet access account from shortly after his arrest until it was disabled sometime in the past two weeks. That means records of his account and emails stored on the Penn State University system would have been saved and be subject to a subpoena.

Click here to read the subpoena

Penn State spokeswoman Lisa Powers confirmed the university had received the subpoena, saying, "The university is fully cooperating with this request for information." She declined further comment.

The U.S. Attorney’s Office in Harrisburg declined to comment.

Pennsylvania state prosecutors have charged Sandusky with more than 50 counts of child sex abuse involving 10 young boys over a 15-year period. He has denied the charges and a trial has been set for May. NBC News reported in December that federal prosecutors were considering whether to open a separate probe because of allegations that Sandusky may have transported a boy who he allegedly abused across state lines -- to out of state bowl games in Tampa and San Antonio. Federal officials were also trying to determine if Sandusky used computers to communicate with or solicit his alleged victims -- another potential violation of federal law, a federal law enforcement official told NBC News. 

The confirmation of the subpoena by Penn State is the first concrete sign that the federal criminal investigation has already begun. A spokesman for the Pennsylvania State Attorney General's Office declined to comment, saying only that the office is "in close communications" with federal law enforcement officials, including the U.S. Attorney's Office in Harrisburg.

NBC News producer Tom Winter contributed to this report.

 

Rick Santorum is coming under much closer — and more skeptical — scrutiny since he jumped to the top of Republican presidential polls this month, according to a computer-assisted analysis of social media data.

For the first time, politically engaged users of Twitter and Facebook are buzzing about Santorum more than about any other Republican candidate.

Santorum, a former senator from Pennsylvania, swept Republican voting in Minnesota, Missouri and Colorado on Feb. 7. Although all three contests were essentially beauty contests, with little official impact on the delegate count, Santorum's victories revived his campaign.

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Before Feb. 7, Santorum was generally running third behind former Massachusetts Gov. Mitt Romney and former House Speaker Newt Gingrich of Georgia in most major national polls. Following those contests, he soared to the top of the major national polls, and he has remained there since.

Santorum's rise has been mirrored on social media, according to msnbc.com's analysis of nearly 2.2 million posts on Twitter and Facebook this month. And as the spotlight has focused on him, it has drawn opponents of his sharp-edged positions out of the shadows.  

The analysis examined posts through Thursday about the four remaining major Republican candidates, filtering out straight news reports and neutral posts, such as tweets noting that a candidate would be making a campaign appearance. The resulting sample was 1.2 million tweets and Facebook posts that expressed clear support for or opposition to one of them.

In the week leading up to the Feb. 7 contests, those Facebook and Twitter users preferred to talk about Romney by a ratio of more than 6 to 1 over Santorum. 

Beginning Feb. 8, however, Santorum has been the No. 1 topic of conversation. This week, more than two-fifths of every post expressing an opinion — 41 percent — were about Santorum, compared to 32 percent for Romney, 15 percent for Gingrich and 12 percent for Rep. Ron Paul of Texas.

Follow the campaign on NBCPolitics.com

(The analysis uses a tool called ForSight, a data platform developed by Crimson Hexagon Inc., which is used by many media and research organizations to gauge public opinion in new media, among them the Pew Research Center and ESPN. The results aren't a scientific reflection of national opinion. Instead, they're a broad look at what is being said by Americans who follow politics and are active on Facebook, Twitter or both.) 

Nonpartisan research indicates that Republicans and Democrats use social networking sites in roughly equal proportions. The demographics have gradually been trending older and more conservative as the sites are adopted by a larger proportion of the American public, studies indicate.

Pew Research Center Internet and American Life Project: Social Media and the 2010 Election (.pdf)

The msnbc.com analysis suggests that while people are much more enthusiastic about talking about Santorum, they're not any more enthusiastic about the man himself. On Feb. 7, before results of the three contests were known, 42 percent of Santorum's comments were positive to 58 percent negative; Thursday, after a debate Wednesday night in Mesa, Ariz., where Santorum came under sustained attack from Romney and Paul, the breakdown was 38 percent to 62 percent.

Consistently, the largest driver of sentiment about Santorum is his strong stance against same-sex marriage, making up 18 percent of all opinions expressed about him and 28 percent of all negative sentiment this week — proportions that have remained remarkably consistent since June, when msnbc.com began collecting data.

In a Facebook post typical of the anti-Santorum commentary, Jay A. Small of Vancouver, Wash., wrote this week:

From Rick Santorum's website: "Marriage is, and has always been through human history, a union of a man and woman – and for a reason. These unions are special because they are the ones we all depend on to make new life and to connect those new lives to their mom and dad." 

So, Mr. Santorum, your religion's typical intolerance must then also stand for banning marriage between couples who do not choose, or are not able to procreate.

First Read: Santorum hits on religious tones in speech

But other issues are now emerging around which significant opposition is crystallizing. The sentiment that Santorum is "too conservative," particularly in the prominence of his religious views — previously just one of several scattered notions — has broken into double digits this month, rising to 13 percent of all commentary and 20 percent of all negative opinion, such as this tweet by an Alaskan woman who describes herself as a Christian "pro-life supporter":

The picture is different for Romney, who (at least according to msnbc.com's analysis) has yet to give voters a clear reason to vote for or against him. That suggests his supporters could be swayed by other candidates — or that he still could galvanize support with clearly articulated positions.

'Most electable'?
In fact, the No. 1 reason social media commentators give for supporting Romney — both this week and going all the way back to June — is their belief that he is the "most electable" Republican in the race, a sentiment that has driven 36 percent of all positive opinions this week:

A quarter cite Romney's competence or leadership; no other issue even makes it into double digits.

Likewise, opposition to Romney is widely scattered. A quarter of those expressing negative opinions this week cited his wealth, with many suggesting that he is out of touch with the majority of Americans, as in this tweet from Michaele Swiderski, a Tennessee woman who describes herself as a Jesus-loving conservative:

But 15 percent also expressed concern over his Mormon faith, another 15 percent thought he was too closely tied to corporate interests, and 14 percent pinned the RINO label on him — that is, "Republican In Name Only," or not truly conservative.

Even in Michigan — his native state, which holds an important primary Tuesday — the single most mentioned word in social media posts about Romney this week (after his own name) isn't any political issue or position.

It's "Santorum."

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In the field of climate science, when someone — especially skeptics — did something ethically questionable or misrepresented facts, scientist Peter Gleick was usually among the first and loudest to cry foul. He chaired a prominent scientific society's ethics committee. He created an award for what he considered lies about global warming.

Now Gleick admits that he posed as a board member to get and then distribute to the media sensitive documents from a conservative think tank that is a leader in questioning mainstream climate change science.

And ethicists are criticizing the man who took others to task for what they say was stepping way over the ethical line. The think tank, the Chicago-based Heartland Institute, said it is considering legal action against him.

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Gleick, who won a MacArthur genius award and is co-founder of the Pacific Institute for Studies in Development, Environment and Security, was chairman of the American Geophysical Union's ethics committee. He also had a column at Forbes.com where he criticized climate skeptics and trumpeted the resignation of a scientific journal editor who published a disputed study. He admitted Monday night that he solicited and leaked the Heartland documents, writing in a blog post on The Huffington Post.

Gleick resigned from the chairmanship of the ethics panel last week.

"What a mess," said Mark Frankel, head of scientific responsibility for the American Association for the Advancement of Science, the world's leading scientific society, which also had Gleick as a panel member on some committees. "It's compounded by the fact that he was chairman of the ethics committee of a professional society. ... It's an ethical morass that he finds himself in."

And Gleick's actions cast unwarranted doubt on the work of other scientists, Frankel said.

Last week, someone identifying himself as "Heartland insider" sent 15 media members and others six documents, purportedly from Heartland. They included a fundraising document, a budget and a two-page "climate strategy." They showed the think tank receiving millions of dollars — more than $14 million over six years from one anonymous man — in big contributions with plans to teach school children to question mainstream climate science. It also showed funding of scientists who are climate-change skeptics.

Heartland said the two-page strategy document was a fake and the others were stolen. The Associated Press, which received the documents along with other news organizations, was able to verify the accuracy of several of the most sensational parts with the individuals named. The documents caused a stir, mirroring the hacking of climate scientists' emails two years earlier from a British research center.

"My judgment was blinded by my frustration with the ongoing efforts — often anonymous well-funded and coordinated — to attack climate science and scientists," Gleick wrote. "Nevertheless, I deeply regret my own actions in this case."

Not good enough, Heartland president Joseph Bast said in a press release: "It has caused major and permanent damage to the reputations of The Heartland Institute and many of the scientists, policy experts and organizations we work with."

The issue is about deception and there are only a few things that could possibly warrant that — and embarrassing Heartland isn't one of them, said Dani Elliott, who teaches ethics at the University of South Florida.

The geophysical union, a scientific society, said in a statement that Gleick's actions are "inconsistent with our organization's values."

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

As Western nations ratchet up sanctions against Iran in an effort to slow or stop its nuclear program, Reuters takes a look at how hard it will be for some oil companies — notably BP — to disentangle themselves from Tehran's business interests.

The case study is the Naftiran Intertrade Co., or NICO, an oil-trading firm owned by the Iranian government, which is engaged in major oil development projects with BP, Shell and Norway's Statoil.

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NICO has been under U.S. financial sanctions since 2008, deemed an entity "owned or controlled by the Government of Iran." However, it remains an important source of foreign exchange for the National Iranian Oil Co., Reuters reports:

To get around the sanctions, NICO uses offshore financial havens and a web of asset and industrial holdings in the West. While it was based in Jersey, the firm operated through a "service company" based in Switzerland. But even there, in a country that has not yet signed up to the trade sanctions against Iran, the company's future could be in doubt.

Click here to read the Reuters piece in its entirety.

The New York Knicks sensational point guard Jeremy Lin has quietly sought trademark protection for "Linsanity" as well as for his name, according to records on file at the US Patent and Trademark Office.

According to application 85541426, Lin filed for trademark protection on both last Monday. Pamela Deese, an intellectual property lawyer at the Washington, D.C., law firm Arent Fox who is listed as the attorney of record, confirmed that Lin was behind the filing. 

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Among the items Lin has sought protection for use of the term are: Clothing, namely, shirts, T-shirts, sweatshirts, hooded sweatshirts, jackets, hooded jackets, coats, headbands, sports jerseys, nightshirts, pajamas, pants, rain coats, rain wear, robes, scarves, shorts, socks, sweaters, sweatpants, underwear, warm-up suits, wristbands, sweatbands, belts; footwear, namely, shoes, slippers, sandals, athletic footwear, sneakers; headwear, namely, caps, hats, visors and bandanas.

Two California men who are not associated with Lin have sought the Linsanity trademark as well.

See the database filing for trademark of 'Linsanity' (PDF)

The application process starts with the examining attorney’s review and approval. The mark then is published for 30 days and any parties that believe they may be harmed can file opposition. Lin can (and is likely to) contest the others' applications.

Lin, an unheralded 23-year-old Harvard University-educated player, has guided the Knicks to a seven-game winning streak in his first games with the team after being released by the Golden State Warriors and the Houston Rockets.

Robert Windrem is a senior investigative producer for NBC News.

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When you think of pollution, you might picture an industrial center like Camden, N.J., or Jersey City. But new research shows that when it comes to a potent class of cancer-causing toxic chemicals, many American parking lots are a lot worse.

New studies paint an increasingly alarming picture – particularly for young children – about how these chemicals are being spread across big swaths of American cities and suburbs by what may seem an unlikely source – a type of asphalt sealer. These sealants are derived from an industrial waste, coal tar.

Four new studies (links are at the end of this article) announced this week further implicate coal tar-based asphalt sealants as likely health risks.  The creosote-like material typically is sprayed onto parking lots and driveways in an effort to preserve the asphalt. It also gives the pavement a dark black coloring that many people find attractive.

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Coal tar is a byproduct of the steelmaking industry. In 1992, the U.S. Environmental Protection Agency declared that it would not be classified as a hazardous waste, even though it met the characteristics of one, because it could be recycled for uses that include coating asphalt. That meant steel mills didn’t have to pay for costly landfilling or incineration of the waste.

 

 

 

Only in recent years have scientists discovered the ill effects of this practice.

Coal tar sealants are used most heavily in the eastern United States, but were applied in all 50 states until Washington state banned the products last year. More than a dozen local governments, including Washington, D.C., and Austin, Texas, also have banned the coal tar sealants in favor of the other major type of sealant, which is asphalt-based.

Asphalt-based sealants contain about 1/1000^th the concentration of the cancer-causing chemicals that coal tar-based products do. Home Depot and Lowe’s stores have dropped the coal tar sealants from their product lines, but still some 85 million gallons of the coal tar-based sealants are applied annually in the United States.

The new research, published in peer-reviewed science journals, focuses on a class of chemicals found in coal tar and known as “polycyclic aromatic hydrocarbons,” or PAHs. Previously, researchers believed that people’s exposure to PAHs came primarily through food, which contains trace amounts produced primarily from smoking food or cooking it at high temperatures in practices such as grilling, roasting, and frying. PAHS are produced when any organic matter burns.

The new research shows:

• It appears that children – especially those from 3 to 5 years old – living by coal tar-sealed parking lots and driveways are getting a bigger dose of PAHs from house dust than from their food. The kids who put their hands in their mouth most often are likely receiving 9 ½ times more exposure through house dust than through food, according to research led by E. Spencer Williams, a Baylor University human health risk assessment expert. That’s just from the house dust. When the kids are outside in the yard or playing on coal tar-sealed pavement, they likely are picking up much larger doses.
• While researchers previously theorized that airborne PAHs come mostly from power plants, factories and cars’ and trucks’ tailpipe emissions, U.S. Geological Survey researchers measured large amounts vaporizing into the air off coal tar-sealed parking lots.  The concentrations coming off parking lots in suburban Austin, where the researchers are based, were higher than in centers of heavy industry, including Jersey City and Camden, N.J.; Chicago; London and Manchester, England; and Guangzhou, China. The Austin parking lots tested were three to eight years old. Much more off-gassing occurs in the first few years after the sealants are applied, researchers said.
• Concentrations measured four feet above the coal tar-sealed lots in some cases exceeded health-protection guidelines recommended by a European Union science panel to protect against cancer. The United States has no similar guidelines.
• Extrapolating from the 85 million gallons of coal tar sealants laid down annually and the out-gassing rates measured in Austin, Geological Survey researchers calculated that nationwide, more PAHs are getting into the air from coal tar-sealed parking lots, driveways and playgrounds than from all the auto and truck exhaust.

“That’s a lot,” said Barbara Mahler, a USGS scientist involved in the research.

Researchers previously had shown that coal tar-sealed parking lots were shedding tiny bits of the material, which was washed by rain into nearby waterways – killing, sickening and maiming aquatic creatures such as salamanders, minnows and, importantly, bugs at the base of the food chain. The chemicals kill tadpoles, cause tumors on fish, stunt growth of aquatic creatures and reduce the number of species able to live in a waterway.

As a result of being washed into waterways by stormwater, these chemicals’ concentrations have been rising over the last two decades, even as levels of most contaminants are headed down, Geological Survey researchers showed.

The chemicals are getting into the house dust, researchers think, when small bits are eroded off pavement and tracked into nearby homes.

Scientists also had previously demonstrated that toxic constituents of coal tar were showing up in the dust of homes adjacent to parking lots and driveways, raising questions about health effects on children in those homes, especially toddlers who frequently put their hands in their mouths. Coal tar is known to cause cancer in humans, as well as genetic mutations in lab animals.

One of the new studies helps quantify that risk. Kids who are average in terms of how often they put their hands into their mouths are getting 2 ½ times as many PAHs from house dust as from food, while those in the 95^th percentile of hand-to-mouth behavior – they do it more than 94 percent of other kids – get 9 ½ times as much from the dust.

Researchers still would like to know how much of a toxic dose those same kids are getting when they play outside in yards next to coal tar-sealed asphalt, or on the asphalt itself. The level of cancer-causing chemicals in the dust on the asphalt itself has been measured at about 37 times the levels found in house dust.

“Those concentrations are a good bit higher and this study doesn’t include that at all,” said Williams, the Baylor researcher. “That may be important because just one little fingerful could be a relevant dose,” meaning one that worries health experts.

While researchers have known about contamination of water and dust, the findings about air pollution are new. Significant amounts of PAHs continue to vaporize off coal tar-sealed lots even years after the sealant is put down.

“When we look at a seal-coated parking lots, in any direction we look we see these really strongly elevated concentrations,” said Peter Van Metre, a U.S. Geological Survey scientist based in Austin. Of the dust on the coal tar-sealed pavement, he said: “It would just take a tiny amount of that to be a large enough dose for it to be significant.”

Companies that sell and use the coal tar sealants have previously disputed the growing body of evidence of the coal tar sealants’ danger being amassed by scientists from the Geological Survey, the University of New Hampshire, Baylor and other institutions.

Repeated attempts this week to reach an industry representative, Anne LeHuray, executive director of the Pavement Coatings Technology Council, for comment on the new studies were unsuccessful. In an email on Thursday, LeHuray said she was tied up at a meeting of the pavement council in Memphis.

Generally, the pavement council has attacked previous coal tar research on technical grounds.

Read previous articles on coal tar sealants:

Study sees parking lot dust as a cancer risk

State bans coal tar sealants in big win for foes

The pavement council has fought bans – sometimes successfully – when they have been proposed by local and state governments. In addition to the local governments that have forbidden use of the coal tar sealants, some governments have placed restrictions on their use, including the state of Minnesota and the California Department of Transportation. Restrictions also are in effect in more than 40 Illinois municipalities.

U.S. Rep. Lloyd Doggett, a Democratic congressman from the Austin area, has previously filed legislation calling for a nationwide ban on coal tar sealants. He plans to refile the legislation, a Doggett spokeswoman said, but is currently embroiled in a redistricting fight.

Tom Ennis, an Austin city official who helped get coal tar sealants banned there, has now launched a campaign to support a nationwide ban.

“You’re looking at a big urban air quality” problem, Ennis said. “It’s completely unacceptable and something needs to be done.”

The studies announced this week appeared in the science journals Environmental Science and Technology, Chemosphere, Atmospheric Environment,  and  Environmental Pollution.

InvestigateWest is a non-profit journalism center based in Seattle. If you value this kind of in-depth, independent news reporting, please consider making a tax-deductible donation to support further work of this kind.

Updated: 4:40 p.m. ET on Feb. 15: The Heartland Institute says the documents referred to below were obtained through "pretexting," in which a person posing as a board member sent an e-mail asking a staffer to "resend" documents from board meetings. The Institute says one of the documents, a "climate strategy" memo, "is a total fake," and the institute says it has not had a chance to reach its president, who is traveling, to determine whether any of the other documents were altered. See the full statement from Heartland below. The group later said that the president had returned, that one document is definitely faked, and that it would not comment on the rest.

Internal documents have been leaked from the Heartland Institute, a Chicago nonprofit think tank, showing its funding of leading skeptics of global warming and a plan to teach climate change skepticism in schools. An anonymous person leaked the documents to several publications and activists supporting the science of climate change. 

"The heart of the climate denial machine relies on huge corporate and foundation funding from U.S. businesses, including Microsoft, Koch Industries, Altria (parent company of Philip Morris) RJR Tobacco and more," reports the DeSmogBlog, which published the documents on Tuesday. The blog opposes what it calls the "climate denial machine." (Disclosure: msnbc.com is a joint venture of Microsoft and NBC Universal.)

The first batch of documents is here on the DeSmogBlog, and a second batch dealing with fundraising.

---

The documents show a plan to develop a curriculum for teaching about climate change in K-12 schools:

Many people lament the absence of educational material suitable for K-12 students on global warming that isn’t alarmist or overtly political. Heartland has tried to make material available to teachers, but has had only limited success. Principals and teachers are heavily biased toward the alarmist perspective. Moreover, material for classroom use must be carefully written to meet curriculum guidelines, and the amount of time teachers have for supplemental material is steadily shrinking due to the spread of standardized tests in K-12 education.

Dr. David Wojick has presented Heartland a proposal to produce a global warming curriculum or K-12 schools that appears to have great potential for success. Dr. Wojick is a consultant with the Office of Scientific and Technical Information at the U.S. Department of Energy in the area of information and communication science. He has a Ph.D. in the philosophy of science and mathematical logic from the University of Pittsburgh and a B.S. in civil engineering from Carnegie Tech. He has been on the faculty of Carnegie Mellon and the staffs of the U.S. Office of Naval Research and the Naval Research Lab.

Dr. Wojick has conducted extensive research on environmental and science education for the Department of Energy. In the course of this research, he has identified what subjects and concepts teachers must teach, and in what order (year by year), in order to harmonize with national test requirements. He has contacts at virtually all the national organizations involved in producing, certifying, and promoting science curricula.

Dr. Wojick proposes to begin work on “modules” for grades 10-12 on climate change (“whether humans are changing the climate is a major scientific controversy”), climate models (“models are used to explore various hypotheses about how climate works. Their reliability is controversial”), and air pollution (“whether CO2 is a pollutant is controversial. It is the global food supply and natural emissions are 20 times higher than human emissions”).

Wojick would produce modules for Grades 7-9 on environmental impact (“environmental impact is often difficult to determine. For example there is a major controversy over whether or not humans are changing the weather”), for Grade 6 on water resources and weather systems, and so on.

We tentatively plan to pay Dr. Wojick $5,000 per module, about $25,000 a quarter, starting in the second quarter of 2012, for this work. The Anonymous Donor has pledged the first $100,000 for this project, and we will circulate a proposal to match and then expand upon that investment.

Here's a copy of the group's fundraising plan, with a list of donors.

The documents also show funding of leading voices among the opponents of the idea of global warming: "At the moment, this funding goes primarily to Craig Idso ($11,600 per month), Fred Singer ($5,000 per month, plus expenses), Robert Carter ($1,667 per month), and a number of other individuals, but we will consider expanding it, if funding can be found."

About its funders, the group refers to a single anonymous donor: "Our climate work is attractive to funders, especially our key Anonymous Donor (whose contribution dropped from $1,664,150 in 2010 to $979,000 in 2011 - about 20% of our total 2011 revenue). He has promised an increase in 2012…"

Other donors are named: "We will also pursue additional support from the Charles G. Koch Foundation. They returned as a Heartland donor in 2011 with a contribution of $200,000. We expect to push up their level of support in 2012 and gain access to their network of philanthropists, if our focus continues to align with their interests. Other contributions will be pursued for this work, especially from corporations whose interests are threatened by climate policies."

Statement from the Heartland Institute

Heartland Institute Responds to Stolen and Fake Documents

FEBRUARY 15, 2012 – The following statement from The Heartland Institute – a free-market think tank – may be used for attribution. For more information, contact Communications Director Jim Lakely at jlakely@heartland.org and 312/377-4000.

Yesterday afternoon, two advocacy groups posted online several documents they claimed were The Heartland Institute’s 2012 budget, fundraising, and strategy plans. Some of these documents were stolen from Heartland, at least one is a fake, and some may have been altered.

The stolen documents appear to have been written by Heartland’s president for a board meeting that took place on January 17. He was traveling at the time this story broke yesterday afternoon and still has not had the opportunity to read them all to see if they were altered. Therefore, the authenticity of those documents has not been confirmed.

Since then, the documents have been widely reposted on the Internet, again with no effort to confirm their authenticity.

One document, titled “Confidential Memo: 2012 Heartland Climate Strategy,” is a total fake apparently intended to defame and discredit The Heartland Institute. It was not written by anyone associated with The Heartland Institute. It does not express Heartland’s goals, plans, or tactics. It contains several obvious and gross misstatements of fact.

We respectfully ask all activists, bloggers, and other journalists to immediately remove all of these documents and any quotations taken from them, especially the fake “climate strategy” memo and any quotations from the same, from their blogs, Web sites, and publications, and to publish retractions.

The individuals who have commented so far on these documents did not wait for Heartland to confirm or deny the authenticity of the documents. We believe their actions constitute civil and possibly criminal offenses for which we plan to pursue charges and collect payment for damages, including damages to our reputation. We ask them in particular to immediately remove these documents and all statements about them from the blogs, Web sites, and publications, and to publish retractions.

How did this happen? The stolen documents were obtained by an unknown person who fraudulently assumed the identity of a Heartland board member and persuaded a staff member here to “re-send” board materials to a new email address. Identity theft and computer fraud are criminal offenses subject to imprisonment. We intend to find this person and see him or her put in prison for these crimes.

Apologies: The Heartland Institute apologizes to the donors whose identities were revealed by this theft. We promise anonymity to many of our donors, and we realize that the major reason these documents were stolen and faked was to make it more difficult for donors to support our work. We also apologize to Heartland staff, directors, and our allies in the fight to bring sound science to the global warming debate, who have had their privacy violated and their integrity impugned.

Lessons: Disagreement over the causes, consequences, and best policy responses to climate change runs deep. We understand that.

But honest disagreement should never be used to justify the criminal acts and fraud that occurred in the past 24 hours. As a matter of common decency and journalistic ethics, we ask everyone in the climate change debate to sit back and think about what just happened.

Those persons who posted these documents and wrote about them before we had a chance to comment on their authenticity should be ashamed of their deeds, and their bad behavior should be taken into account when judging their credibility now and in the future.

---

The document that Heartland says is a fake is this one titled "2012 Heartland Climate Strategy." The spokesman, Lakely, said it was defamatory to suggest that Heartland did not want science to be taught in schools, or that it would try to keep opposing views out of the press, or would think that it could.

The DeSmogBlog says about the "faked document":

The DeSmogBlog has reviewed that Strategy document and compared its content to other material we have in hand. It addresses five elements:

The Increased Climate Project Fundraising material is reproduced in and confirmed by Heartland's own budget.

The "Global Warming Curriculum for K-12 Classrooms" is also a Heartland budget item and has been confirmed independently by the author, Dr. David Wojick.

The Funding for Parallel Organizations; Funding for Selected Individuals Outside Heartland are both reproduced and confirmed in the Heartland budget. And Anthony Watts has confirmed independently the payments in Expanded Climate Communications.

The DeSmogBlog has received no direct communications from the Heartland Institute identifying any misstatement of fact in the "Climate Strategy" document and is therefore leaving the material available to those who may judge their content and veracity based on these and other sources.

Billboard companies are moving aggressively to plant digital signs along U.S. highways and city streets. But debate persists on whether the eye-grabbing displays, which typically change messages every 6 to 8 seconds, pose a risk to traffic safety.

Combatants in the billboard wars -- including local and state officials under industry pressure to permit more of the lucrative signs -- are eager for a study by the Federal Highway Administration (FHWA). They have hoped that the much-anticipated study, launched in 2007, would help clarify some key safety questions.

Yet the politically sensitive research, which was supposed to have been wrapped up in 2009, remains cloaked in mystery. All the FHWA has said, time after time, is that the study is under review.

It turns out that officials may be afraid to make an embarrassing admission.

According to records obtained by FairWarning under the Freedom of Information Act, expert reviewers have told the FHWA that the study appears to have been botched. The key findings vary so wildly from previous research that, as one reviewer put it, they “are not plausible.”

---

The agency has refused to answer questions. “We have no one available to be interviewed,” said spokesman Doug Hecox, adding that “internal discussions about the draft of the study are ongoing.” He would not say if FHWA plans to toss the research or try to salvage it.

The hundreds of pages of agency emails and other records reviewed by FairWarning, however, speak loudly about the political and financial stakes, as well as industry efforts to influence public opinion.

The unreleased draft, which drew withering critiques from two experts, gave the billboard industry what it wanted, the documents show. Those results indicated that drivers’ glances at billboards were exceedingly brief, suggesting that the displays aren’t a threat to traffic safety. 

Yet the billboard industry, led by the Outdoor Advertising Association of America, was deeply worried. The trade group campaigned to remove a study consultant that the industry accused of having an anti-billboard bias and brought out its own studies to frame public debate while the FHWA was still studying the issue.

Digital signs proliferate
Today, of more than 400,000 billboards in the U.S., estimates of digital displays range from slightly more than 2,000 to as many as 3,200. The industry has been adding hundreds of the more-profitable signs each year.

The FHWA study followed a controversial memo by the agency in September 2007 that appeared to green light the digital expansion. The memo stated that electronic displays were not prohibited under longstanding federal-state agreements that ban “intermittent’’ or ‘’flashing’’ signs. 

Anti-billboard groups, including Scenic America, denounced the memo as farcical, saying billboards that alternate content every few seconds are the exact definition of “intermittent’’ signs. Responding to attacks, the FHWA said that it was only clarifying existing policy. 

Stung by backlash from the memo, the FHWA launched its study. It relied on sophisticated instruments to monitor how long drivers on fixed routes in Reading, Pa., and Richmond, Va., glanced at digital billboards.

“Lots of interest from all sides,” said an email from senior agency official, referring to the research. “There is huge money involved here, so the interests are getting pretty strident.” 

A consulting firm, Science Applications International Corp., was hired to run the study. It brought on Jerry Wachtel, a Berkeley-based traffic safety expert, as an adviser. Science Applications declined comment.  

The industry at the time was smarting from a report by Wachtel for Maryland transportation officials. They had asked him to review two industry-sponsored studies that the industry said confirmed the safety of digital billboards. Wachtel’s report said both studies were biased and misleading. 

In a seemingly orchestrated campaign, several industry groups and members of Congress fired off letters attacking Wachtel and seeking his removal from the FHWA study. In its letter to Transportation Secretary Ray LaHood, the outdoor advertising association blasted what it called Wachtel’s “high-profile activism.” 

Five House members from Pennsylvania — Democrats Jason Altmire, Christopher Carney and Tim Holden, and Republicans Charles W. Dent and Todd Russell Platts — signed a letter to FHWA Administrator Victor Mendez complaining of biased remarks by Wachtel at a hearing on billboards in their state. His involvement, they wrote, “may undermine the credibility of ongoing federal research.”

Billboard industry's political donations
All five lawmakers have received campaign support from billboard executives or political action committees since 2006, according to research by the Washington-based Center for Responsive Politics. The donations totaled at least $26,484. 

Altmire spokesman Richard Carbo said in an email that the congressmen “were concerned that the reports from the Federal Highway Administration were not unbiased.  That was the only purpose of the letter.”

In fact, Wachtel’s role was limited and his involvement basically had ended by the time of the protests.  However, FHWA officials wanted to avoid any appearance of caving in. “I think we have to be very careful in dealing with this issue,” one official said in an email.  “We do not want industry dictating whom we may or may not employ on our projects.” 

Responding to the outdoor advertising association, FHWA Associate Administrator Gloria Shepherd wrote: “We are well aware of the sensitive nature of this research. … I can assure you that we will be monitoring’’ the work “to be sure it is accomplished in an objective manner.” 

Wachtel, who has worked for billboard companies in the past, told FairWarning that “in their eyes, I have been both the world’s smartest guy and the world’s worst individual. I’m the smartest guy when I tell them what they want to hear.” 

In response to questions from FairWarning, the association said in an email that “OAAA and the outdoor industry support fair research. In fact, we’ve researched traffic safety for years. …The results have not indicated a correlation between digital billboards and traffic accidents.” 

Records show that FHWA officials rebuffed a Freedom of Information request from an industry lawyer to disclose the research locations, saying they would be kept secret “until the tests are completed to protect the integrity of the results.” 

But the industry found out, anyway. It launched its own studies in Reading and Richmond and blared the results. “Digital Billboards Not Linked to Accidents,” a press release said. 

Records show the FHWA study was submitted in September 2010, and circulated for internal review in the fall. “The final report is scheduled to be released to the public in December 2010,” an agency memo said. 

However, the review continued into 2011, when the two outside experts criticized it. Identified only as “REVIEWER 1” and “REVIEWER 2,” they concluded that the data appeared to be wrong. 

Distracted driving research has sought to find the amount of time when drivers looking away from the road raises the risk of a crash. In the scientific literature, glance times associated with a higher crash risk have been variously estimated at 2 seconds, 1.6 seconds or three-quarters of a second. 

Almost impossible
In the FHWA study, recorded glances were so brief that none came close to 2 seconds or even 1.6 seconds. Only about 1 percent were above three-quarters of a second.

In fact, the average was slightly below one-tenth of a second -- a number both expert reviewers considered almost impossible.

“The reported glances to billboards here are on the order of 10-times shorter than values reported elsewhere,” one reviewer wrote. “The pattern of results certainly raises questions over the quality and legitimacy of the underlying data.’’

The other said, “The data reported as average glance durations are not plausible.”

Two other experts contacted by FairWarning confirmed that the data was highly suspect.

Alison Smiley, president of Human Factors North, Inc., in Toronto, said the glance times were “extremely short’’ and substantially at odds with her own studies.

Paul A. Green, a research professor at the University of Michigan Transportation Institute, said glances so brief would mean the drivers “never really looked’’ at the billboards.

“It’s a flaw in the data,” Green said. “You wonder, if they made this mistake did they make other mistakes?” 

FairWarning is a nonprofit, online investigative news organization focused on public health and safety issues.

Follow M. Alex Johnson on Twitter and Facebook

The federal government's nuclear watchdog has faulted the Nuclear Regulatory Commission for failing to follow through on safety agreements with nuclear facilities, saying its system for tracking corrective action raises questions about its oversight of nuclear safety and security.

After an eight-month audit, the NRC's Office of Inspector General concluded last week that the commission has no centralized way to oversee or follow up on documents confirming that a nuclear facility has committed itself to address "significant concerns regarding health and safety, the environment, safeguards or security."

The documents — known as Confirmatory Action Letters, or CALs — are one of the last measures before the NRC cracks down with a stringent binding order like suspension or revocation of a nuclear plant's license.

Because CALs are reserved for a small number of potentially serious cases — 15 to 20 of the hundreds of incident reports the NRC issues each year, according to its records — effective oversight of the confirmation process is of "utmost importance," the inspector general said. But in some cases, the action letters are so poorly drafted that they don't even make it clear who the intended recipients are, the report asserts.

Read the full inspector general's report (.pdf)

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Bureaucracy to blame
The problem is one of red tape, not willful inaction or neglect, the report says. But the weaknesses — which include lack of consistent guidelines for regional NRC offices, regional offices' failure to comply with those guidelines and some offices' lack of any tracking system whatsoever — "degrade" the agency's accountability, it says. 

A spokesman for the NRC said the agency believes "the CAL process has been effective" and that it would have a formal reply "in the near future." In an informal meeting last month, the NRC generally agreed with the inspector general's recommendations to update its main enforcement manual, centralize tracking and submit to occasional audits of the action letter system, the report said.

If the NRC is to do that, it won't be with added staff or much new money. In its fiscal 2013 budget request, the agency notes that it's asking for about $128 million less $15 million more than it got last year, a 1.4 percent increase, including what it called a "cost-conscious" reduction of 25 jobs.

And those cuts are coming as concerns are rising over the safety of America's aging nuclear infrastructure.

Until last week, the NRC hadn't licensed any new reactors for more than 30 years. Consequently, many of the nation's 104 nuclear plants are operating under licenses that the NRC has extended for up to 20 years beyond their original 40-year lifespans.

Nuclear renaissance? US OKs new reactor design

NRC panel: Bullying nuke chief damages agency

The need to keep those creaky plants running means many safety problems arise "because reactor owners, and often the NRC, tolerate known safety problems," the Union of Concerned Scientists — a nonprofit science watchdog at the Massachusetts Institute of Technology — warned last year (.pdf).  

About two dozen of those plants use the same containment system as the one that failed when a powerful earthquake and tsunami breached the Fukushima Dai-ichi Nuclear Power Station in Japan, msnbc.com reported last year.

(The containment system is manufactured by General Electric Co., which is a parent company of msnbc.com through its 49 percent stake in NBCUniversal.)

To date, the NRC has never rejected an application for a license extension.

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Updated 12:41 p.m. ET – Dorothy Canady said she would never forget the man who shot a retired New York City police officer, but at trial she identified Juror No. 6 as the assailant. Another witness to the crime said the attacker was a black man with braids, yet he picked an Hispanic man with short hair out of a photo lineup.

Though the jury laughed when Canady fingered one of their own, and despite other discrepancies among the accounts of other witnesses to the fatal shooting in a Harlem numbers (illegal gambling) parlor in 1998, Jon-Adrian Velazquez was convicted of second-degree murder and sentenced to 25 years to life in prison. Today, he is fighting to clear his name from a cell in New York’s infamous “Sing Sing.”

“The eyewitness misidentification is the central and critical reason for his wrongful conviction,” said Velazquez’s attorney Robert Gottlieb, formerly an assistant district attorney in Manhattan. “There is no other evidence in this case that could possibly be the basis for a guilty verdict other than the eyewitness identifications that were false. Unfortunately this story is not … so unique.”

Watch Part 1 of ‘Conviction,’  the story of Jon-Adrian Velazquez’s murder case

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While hundreds of convicts have been freed from prison after being exonerated by DNA evidence in recent decades, many others who proclaim their innocence from behind bars don’t have that recourse because no such evidence exists. In many instances, their efforts to gain freedom boil down to their words against those of witnesses to the crimes they allegedly committed.

But in part due to the DNA exonerations, there is increasing concern about the reliability of witness identification in criminal cases. That, in turn, is forcing courts, state legislatures, police and district attorneys across the country to review convictions and make changes in the ways they collect what can be make-or-break testimony from witnesses to a crime.

“We have come a long way since the days when people accepted without question an individual who would take the witness stand, point to the defendant and say, ‘I’ll never forget his face, that’s the person I saw,’” said Gottlieb. “It really was not until the advent of DNA analysis that we have been able to show that eyewitness identifications are one of the weakest forms of evidence.”

Conviction: Reporter's 10-year quest for answers in little-known murder case

The Innocence Project, a nonprofit group dedicated to freeing the wrongfully convicted through DNA testing and to criminal justice system reform, has helped win freedom for nearly 300 prisoners in 35 states -- including 17 who spent time on death rows -- in its 20 years of existence.

In 75 percent of those cases, the leading factor in their convictions was witness identification; in 36 percent of those cases, convictions were in part based on an identification made by more than one person, said Karen Newirth, eyewitness identification litigation fellow at the Innocence Project.

“Our DNA exonerations represent really just the tip of the iceberg … because they are the only cases where DNA exists in the first place,” she said.

Those cases include rapes, murders, robberies and other crimes. The Innocence Project said experts estimate that DNA testing was possible in only 5 percent to 10 percent of all criminal cases.

“Many of the kinds of crimes where eyewitness misidentification come up are excluded because they are not the kinds of cases where DNA would ever have existed,” Newirth said. “We can only say for certain how prevalent it is in our cases and then assume that that’s really just the tip of the iceberg.”

Memory is ‘nothing like a videotape’

Researchers have long studied how people create memories, how that works in witness identification and then how that information is used by prosecutors at trial.

“People often think that memory works like a videotape and in fact it’s nothing like a videotape,” said Newirth. “That sort of highlights both the problem of how memories are made, but also how people become convinced of the correctness of their memories.”

A witness’ perception of a crime can be affected by lighting, distance, stress and the race of the alleged perpetrator – especially if it is different than their own, Newirth said. They also can be influenced by the suggestions of law enforcement and other witnesses as they try to fill in the gaps in their memory of that event, she said.

Suggestions from law enforcement – whether consciously or not -- could include something as simple as a nod by an officer or a positive reaction even when a witness says someone in the lineup “looks a lot like the guy,” said Jennifer Dysart, an associate professor of psychology at John Jay College of Criminal Justice.

Other times, witnesses may make a relative judgment: “So relative to all the others, who is the most likely … to be the police suspect here?” Dysart added.

To protect against guessing or suggestion, some jurisdictions have opted for “blind administration” of a lineup – where the officer conducting it has nothing to do with the case and does not know who the suspect is. The officer also is instructed to tell witnesses that the suspect may not even be in the lineup and  record statements on how confident the witness is about their selection.

A black man with braids or a Hispanic man with short hair?

In the Velazquez case, the witnesses said the man who killed retired police officer Albert Ward was a black man with a light complexion and braids, a description that led police sketch artists to create this "wanted" poster:

Tips poured in. Three people told police they either recognized the man in the sketch as a man named Mustafa or had heard that he was the shooter. Others provided information on who they understood had ordered the hit and a suspected accomplice -- neither of which were Velazquez. But police honed in on Velazquez, now 36, after one witness, Augustus Brown, identified him after sifting through 1,800 mugshots.

“Every eyewitness … said the shooter was a male black with braids, so how in heaven’s name is the shooter ultimately said to be a male Hispanic with short cropped hair?” Gottlieb, Velazquez’s attorney, asked rhetorically. “Something went wrong in the process.”

The police station lineup that resulted in Velazquez’s identification as the suspected killer was equally “absurd,” he said.

“Everyone looks either Hispanic or Caucasian; there isn’t one male black with braids in that lineup, so you start off with a rotten lineup,” Gottlieb said. “And then you have eyewitnesses who identify an Hispanic male and each of those eyewitnesses were vulnerable individuals -- drug dealers, drug users, down and out individuals -- who were very vulnerable to police manipulation, police suggestiveness.”

Velazquez, who said he was at home speaking on the phone with his mother during the shooting, voluntarily went to the police station and was put in the lineup.

Three of the six witnesses who viewed that lineup chose Velazquez and three did not, including the woman who later picked out juror No. 6 at the trial. However, days later she returned to the police station and said she had decided it was the man in position two -- Velazquez.

The NYPD did not respond to an email seeking comment on their procedures in the Velazquez case.

With many witnesses, ‘rich possibility’ of contamination

Dysart, the psychology professor, said wrongful identification of a criminal suspect can snowball if police don’t prevent witnesses from feeding off one another’s memories, a phenomenon known as “co-witness contamination.”

“When you have a chance to speak with someone who also saw the same crime, it’s possible that you are going to incorporate something that they said into your own memory of the event,” Dysart said. “The more opportunities that witnesses have to discuss things together … the more likely the memory report will become very similar. … Memories are so fragile really and we can be influenced by so many things.”

A more recent case that highlighted the growing controversy over witness identification was that of Troy Davis, who was executed in September 2011 for killing a Savannah, Ga., police officer. He maintained his innocence until his death, and seven of the nine witnesses who said he was the shooter later recanted all or parts of their testimony.

“In Troy Davis’ case, you had a lot of marginalized people who were at the crime scene who allege that they were coerced into offering testimony that they later said was not true, that they did not see happen,” said Laura Moye, death penalty abolition campaign director of the human rights group Amnesty International.

‘The guy on trial I had never seen before’

There were recantations in the Velazquez case, too: Phillip Jones, who was at the numbers parlor with his brother, Robert, when the shooting occurred, said in an affidavit:

“I told the police this was the guy and I was sure, but this was not the truth. I felt pressured because the police were threatening to arrest me and my brother Robert for stealing money that Albert dropped on the floor after being shot. I was arrested some time after Albert Ward was killed and two detectives came to visit me upstate in Groveland Prison. The detectives told me they got the right guy and would help me get parole. I decided to testify at the trial because I felt pressured by the police. When I saw the deft. (defendant) in court, I looked in his eyes and knew I had picked out the wrong  guy, and the guy on trial  I had never seen before.”

Despite this and other admissions, making the case to free Velazquez – a case in which there is no physical evidence that could prove his innocence -- will not be so easy, Newirth said.

“In cases like this where there’s no DNA, it’s incredibly difficult. I mean, I think that that’s a principle that the Troy Davis case really stands for is … courts necessarily treat recantations with ... great suspicion,” she said.

Moye of Amnesty said the bar for a reversal would be high.

At this stage, “You no longer have innocent until proven guilty, you’re pretty much guilty until proven innocent,” she said. “… How do you prove beyond … a shadow of doubt, you know, what people said they saw or didn’t see? It’s all so subjective.”

‘They didn’t commit the crime’

Due to the problems with wrongful convictions, states, courts, district attorneys and police have worked to implement changes. At least 13 states have enacted some form of legislation implementing many of the Innocent Project lineup reforms.

A key New Jersey Supreme Court decision in August 2011, State v. Henderson, which followed a report the high court commissioned to evaluate scientific and other evidence about witness identifications, concluded “that the current standard for assessing eyewitness identification evidence does not fully meet its goals.”

“Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real,” the court said. “Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country.”

The court called for two remedies: Allowing defendants who can show evidence of suggestiveness a pre-trial hearing to explore those concerns; and developing enhanced jury instructions about witness identification – relevant factors and their effect on reliability --- for trial judges to use.

“I think the major kind of theme to take out of the Henderson decision in New Jersey is that courts are really beginning to re-assess … how they assess the reliability and accuracy of eyewitness evidence,” said Rebecca Brown, senior policy advocate for state affairs at the Innocence Project. “And I think that the Henderson decision really signals a shift in direction by the courts and … we’ve begun to see other courts kind of pick up on that.”

Not all courts agree: The U.S. Supreme Court ruled in mid-January that the due process clause did not require an inquiry into the reliability of a witness identification when it was not obtained under “unnecessarily suggestive circumstances by law enforcement.”

The lone dissenter in Barion Perry v. New Hampshire, Justice Sonia Sotomayor, wrote: “The Court's holding enshrines a murky distinction between suggestive confrontations intentionally orchestrated by the police and, as here, those inadvertently caused by police actions that will sow confusion. … And it recasts the driving force of our decisions as an interest in police deterrence, rather than reliability.”

“The majority … adopts an artificially narrow conception of the dangers of suggestive identifications at a time when our concerns should have deepened,” she added.

District attorneys in Chicago, Santa Clara county, Calif., Dallas and Houston have also created units to review questionable cases.

Dallas County was the first to do so in 2007, when the newly elected district attorney formed a four-person unit to review 500 cases where defendants claimed their innocence. Until then, authorities had routinely rejected all such claims, said District Attorney Craig Watkins.

“Basically, 90 percent of the first cases that we looked at turned out to be cases where the defendant was telling the truth, they didn’t commit the crime,” he said. “… We started looking at all cases. We started taking requests from defense attorneys. We started actually reading the letters from defendants.”

Witness identification was the No. 1 problem investigators came across in the initial cases, which had DNA evidence that could be tested, Watkins said.

“Everyone that had been exonerated had been wrongfully ID'd,” he said. “There was somewhat of a suggestive nature to pick a certain person and so we advocated first with the police departments to change their procedures and they did.”

Under Watkins’ tenure, 15 people have been exonerated as a result of the unit’s reviews. Another 12 were exonerated before then due to the passage of a 2001 state law that allowed convicted inmates to request post-conviction DNA-testing.

‘Our system’s broken’

Watkins said the reviews met with a public backlash from people who didn’t think that was his job and that he should focus on getting the bad guys.

Law enforcement had a similar reaction.

“But as we went along, I mean, they couldn’t deny it,” he said. “It was ... proven that our system’s broken and it’s broken in more than one way. This is not just from a prosecutorial standpoint, it’s from how we investigated cases, it’s from police officer misconduct, prosecutorial misconduct. It’s just from the culture of law enforcement.”

They’ve now started to work on cases where there is no DNA to test. Five of their 15 exonerations have been in non-DNA cases.

“Those are somewhat more difficult to do because it’s subjective, it’s not scientific,” but they’ve had the real perpetrators step forward or there was "overwhelming evidence of prosecutorial or police misconduct in the cases and so it’s been pretty cut and dry,” he said.

Changes ‘wholly unnecessary’

But Scott Burns, executive director of the National District Attorneys Association, said it would not be feasible for many of the country’s nearly 3,000 DA offices to have such units since about 85 percent of them have five or fewer lawyers.

He also argued that the witness identification issue has been “blown out of proportion when you look at the total volume of cases that are prosecuted nationwide -- hundreds of thousands.”

“It’s always easy to come up with … a case here or a case there and spotlight it, and then jump to the premise that eyewitness identification is inherently bad or unreliable, and I think I can speak for DAs in saying that just isn’t true,” he said, “… Eyewitness identification, while it’s always been an aspect of a case that has to be dealt with in a special fashion, it’s still an important tool in prosecuting cases.

“Do eyewitnesses get it wrong some times? Absolutely. And, I think DAs recognize that and in those cases it’s … not only our obligation, it’s our sworn duty to rectify that.”

Burns said his organization has not taken a position on procedural changes, such as those recommended by the Innocence Project.

“Some DAs think they’re great and others think they’re wholly unnecessary and costly and inefficient,” he said.

‘There are times that those people are in fact innocent’

New York County District Attorney’s Cyrus R. Vance Jr. took up his post in 2010 with a pledge to create a Conviction Integrity Program that “re-affirmed the traditions” of the office.

Since the program began, the unit has vacated one conviction in a case that’s now awaiting re-trial, rejected two others after investigations showed that the original convictions were sound, and is reviewing others.

Gottlieb asked the unit in October to review Velazquez’s case, but he said prior to publication that he has not yet received an official decision though the two sides have been meeting. The DA’s office said that the case is under review.

“This unit is a great innovation as long as it is implemented not for show but for real results. … it now really depends on the commitment of people who have the power to undertake this work objectively, no matter where it leads,” Gottlieb said.

“Every day of the week, people are arrested, people are locked up … and it turns out that there are times that those people are in fact innocent,” he added. “For the public that would be fearful that, ‘Jesus, we start opening the jails for people all these years later who say that they’re innocent … that’s a frightening thought,’ except if they realize that that person being locked up meant that the real killer was not … that should be much more frightening for people to accept than what would happen if we released Jon-Adrian Velazquez.”

For 14 years, Jon-Adrian "JJ" Velazquez has lived  behind bars, convicted  and sentenced to 25 years to life for murder.  As the years have passed, JJ has been a reluctant bystander to his own life, watching his world change from inside prison walls. In that time, his two sons have grown from children to teenagers. Jon-Adrian, Jr. was 5 when his dad was taken from him; his brother Jacob was just a month old. Their mother, JJ's girlfriend at the time, moved on with her life, and found a new relationship a few years after he went away. Yet through it all, one thing has remained constant: JJ has always insisted that he is innocent. 

I first heard about JJ in 2002, when I was working on a different "Dateline segment that detailed the plight of two men who were convicted of the 1990 murder at the Palladium nightclub in New York City.  The men insisted they were innocent, and in an unusual twist, they had a veteran NYPD detective and a respected former federal prosecutor fighting for them. It would take five long years to finally see those men vindicated. We documented many disturbing revelations along the way, and it was all told in our 2007 broadcast, "In the Shadow of Justice." 

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Inside the prison, JJ heard about our investigation of the Palladium case, and he began to write me letters. The first one arrived on Dec. 5, 2002.  Having worked at "Dateline" for 16 years, I've received many similar pleas from inmates who declare they are innocent. Most are either lying or don't have the proof to back up their claims. But there was something about JJ's letters that stirred something in me. So I decided to visit him, and to be open to the possibility that maybe he was telling the truth.  As we sat down in the visiting room at the maximum security Greenhaven Correctional facility, I was surprised to find  that he was not withdrawn or despondent or even resigned to his fate. To the contrary, he was vibrant, articulate and adamant not just of his innocence but of his eventual vindication.

Witness error: How mind tricks can land the innocent behind bars

At that meeting, I remember JJ challenging me to try and find him guilty. He wanted me to turn over every stone. He insisted that he was an innocent man. I promised him I would take him up on his challenge, but if he lied to me about anything -- even one time -- I wouldn't be coming back. He didn't appear concerned. 

The more I learned, the more I was drawn to the story. If the Palladium case represented a bureaucracy gone terribly wrong, JJ's story was something entirely different. It was the story of a 22 year old man convicted on painfully thin evidence and then forgotten, no longer represented by attorneys and without legal recourse. He filed his own final appeal to the courts, and was denied. He couldn't afford his own investigation, and with nowhere else to turn for help, he wrote to me and asked for it.

It's taken 10 years, but on Sunday, you will hear JJ's story. You will hear from the witnesses who convicted him. You will meet one of the jurors who said, "Guilty." You will meet the lawyers who now say a grave injustice was done, and learn of the evidence that they say should set him free. 

Despite his guilt or innocence, what's most interesting to me about JJ's story is how difficult it is to get a case reconsidered once a jury has rendered a verdict.  The experts will tell you that any inmate who has been convicted by a jury faces an uphill battle – and with good reason. The hard truth is once convicted and considered by an appellate court, the cell door locks and it won't reopen without evidence short of a confession from the real killer or DNA -- something that seems about as likely as lightning striking that lock. And sometimes even that isn't enough.

For good or bad, that's the system. But one thing is for sure: to stand up to it, and to withstand it, you'll need a healthy dose of conviction.

Dan Slepian is a producer at "Dateline NBC."  Click here to send him an email.

 

An al-Qaida propaganda outlet has released a new video featuring al-Qaida leader Ayman al-Zawahiri and the leader of Somalia’s Harakat al-Shabaab al-Mujahideen, apparently indicating that the latter group has been formally incorporated into the umbrella terror organization. 

The video distributed by al-Qaida’s “As-Sahab Media” shows al-Zawahiri, who ascended to al-Qaida's top post after the death of Osama bin Laden in May 2011, addressing the camera. Al-Shabaab leader, Mukhtar Abu az-Zubeir is shown in a photo and heard offering a “bayat,” or oath of allegiance, to al-Zawahiri.

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Evan Kohlmann, an NBC News terrorism analyst, said the two men are not seen together in the tape and that it appears al Zawahiri and az-Zubeir recorded their comments separately and that they were then were edited together. 

According to a translation provided by Kohlmann, al-Zawahiri said in the tape, "Today I bring glad tidings to our Muslim Ummah (community), happy tidings that please the believers and displeases the crusaders, which is the joining of Shabaab al-Mujahideen in Somalia to Qaida't al-Jihad in support of the Jihad unity in the face of the Zionist-crusader campaign and their helpers of cooperatives traitor rulers who brought in the crusader invasive forces to their countries." 

Car bomb attack in Somali capital kills 8

The implications of a formal link between al-Shabaab and al-Qaida would be worrisome, considering that as many as 50 American citizens are believed to be members of al-Shabaab in Somalia and at least three are known to have carried out suicide bombings inside that east African nation.  (In addition, another 150 Europeans and others who wouldn't require a visa to enter the U.S. belong to al-Shabaab.) 

It also may indicate that al-Qaida, decimated by predator drone attacks and the Osama Bin Laden raid, is seeking new recruits for its operations.  

This is the first video of al-Zawahiri in more than two months. In the last video, issued on Dec. 1, boasted that al-Qaida had seized aid worker Warren Weinstein, a 70-year-old American, in Lahore, Pakistan, last August. There's been no further word on whether Weinstein remains alive since then.