Secure Liberties Newsletter

Cavan Kharrazian on July 14, 2021

TOP LINE

Just in: Defense Approps requires declassification and release of significant FISA Court opinions, proving surveillance reformers don’t need to reauthorize mass surveillance to get reform (this was part of the package of reforms in the PATRIOT Act reauth from 2020).

A new big red surveillance flag: Privacy and Civil Liberties Oversight Board member Travis LeBlanc made some big waves after joining a chorus of critics that panned as a “colossal disappointment” the Board’s five-year “report” on one of the government’s most controversial surveillance programs, XKeyscore (operated under EO 123333). His statement says, among other things, that the NSA’s legal analysis “lack any consideration of recent relevant” privacy case law, which sounds at least like a reference to the major location privacy case Carpenter. Sen. Wyden noted that he is “pressing for multiple PCLOB reports about EO 12333 to be declassified,” indicating there’s a lot more for Congress and the public to learn here.

Sorry: it’s time to (briefly) talk about Tucker Carlson. We only have one thing to add beyond the inestimable Marcy Wheeler’s take, as supplemented by SLN friend Jake Laperruque: Carlson’s claims, now that we know he was reaching out to Putin, is plausibly consistent with incidental collection. Meanwhile, a new Rasmussen poll finds most voters think the government is spying on the press.

Encouraging provisions for Yemen, Gitmo, and congressional war powers in Defense approps. Despite the $706 billion price tag, the FY 2022 House defense appropriations bill, which passed through committee yesterday, had some positive funding cut offs for: Gitmo after September 30, 2022; offensive military operations conducted by the Saudi-led coalition in the war on Yemen; any contravention to the War Powers Resolution; building military installations for permanent US troop presence in Iraq & Afghanistan; exercising control over oil resource in Iraq or Syria; providing support to the Azov Battalion. Rep. Barbara Lee’s amendments to repeal both the 2001 and 2002 AUMFs also made it in.

SURVEILLANCE

Write it in the skies: Fourth Circuit (en banc) finally gets around to saying constant aerial drone surveillance in Baltimore was illegal. Not much to add here, except congratulations to the ACLU and Maryland!

Undermining surveillance hacks: a new platform built by the likes of Amnesty Intl. and Citizen Lab is tracking the proliferation of Pegasus, a surveillance tool from NSO Group, which has earned extensive criticism after selling its software to governments that use it to oppress human rights activists, journalists, and pretty much anyone they want squeeze. (Some details about how Pegasus works, and how to avoid it, are available here.)

Meanwhile, the government’s shift from indicting hackers to (cyber)attacking them continues, per outgoing National Security Division AAG John Demers, while the Cybersecurity and Infrastructure Security Agency is poised to expand dramatically. Recent hacks are seen by some as pressuring further action by the administration, while China is already painting the US as the top cybersecurity threat.

Concerned Women of America indeed: Cato’s Pat Eddington, who continues to wage FOIA battle after FOIA battle with the FBI, has obtained a 2016 assessment of Concerned Women for America. His point: FBI assessments are way too easy to engage in, and don’t require any actual allegation.

MS Surveillance Reform: Microsoft laid out 7 statutory reforms to deal with rampant overuse of secrecy orders, the likes of which took center stage after the recent revelations of secret spying on journalists and members of Congress. (Also be sure to check out this exceptional hearing on the matter at HJC.) The Project for Privacy & Surveillance Accountability, meanwhile, asked when other companies would similarly step up. Sen. Wyden, with Rep Raskin, is planning to introduce an updated version of the Free Flow of Information Act named the PRESS Act.

Speaking of somethings to be done, House Judiciary held a hearing yesterday on face recognition that reminds us there is some consensus, including on stopping the proliferation of law enforcement’s use of this tech. Shortly before, the GAO released a report concluding at least 20 federal agencies have deployed facial recognition and endorsing limits on the controversial practice. Disturbingly, two agencies used it to investigate the 1/6 insurrection, and six used it to investigate the George Floyd protests.

Reps. Chu, Raskin, Tlaib, and others came together to hear from racially profiled Chinese American scientists for a powerful roundtable. We continue to be moved by the story of Dr. Xiaoxing Xi, who was wrongfully prosecuted (and raided by the FBI) — we still don’t know how the FBI came to set its sights on him. The Senate Commerce Committee just released an investigation into closely related misconduct at the Department of Commerce, which identified investigations without “sufficient basis,” “poor management and weak oversight,” targeting of Asian Americans and employees who challenged the unit’s lawfulness, and even a failure by the Inspector General to identify issues. Woof. (Hat tip to @apa_justice.)

Republican Reps are taking aim at the inexplicable covert surveillance program run by USPS, the Internet Covert Operations Program (iCOP), that Yahoo News exposed in April and dissected in May. Rep. Gaetz and 9 other Rs introduced the USPIS Surveillance Protection Act, which defunds this program and other “politically motivated” surveillance (we’re not sure where the politics here comes from, but that’s probably why there aren’t Democrats on it). Rep. Mace, meanwhile, called the chief postal inspector “unprepared … to the point of incompetence” after an oversight hearing in a widely republished op-ed.

The Capitol fence was removed late last week. Other restrictions persist, and the Capitol Complex will remain closed to visitors (except those escorted by staff). On January 28, USCP Acting Chief Pittman called for the fence to be permanent; in February, Demand Progress led a bipartisan effort with Lincoln Network and a coalition of organizations to oppose permanent fencing around the Capitol Complex.

SCOTUS narrowed a class-action lawsuit against TransUnion brought by consumers incorrectly labeled as terrorists in credit reports, specifically cutting out people who were labeled as terrorists but whose reports weren’t circulated. The court held Congress wasn’t allowed to give those people standing.

Tech companies have been so quiet about surveillance reform one didn’t even realize its logo had fallen off the Reform Government Surveillance trade association website. Will they stay silent or start prioritizing the issue once again?

ARMS, INTEL, and NDAA

Want to help Cubans? Lift crippling US sanctions, says HFAC chairman. In an rare (but encouraging!) move, the chair of the House Foreign Relations Committee, Rep. Meeks, responded to recent protests in Cuba triggered by food and medicine shortages by insisting that the US immediately remove strict sanctions imposed by Trump. Although the US embargo on Cuba has been in place for nearly 6 decades, Trump increased US sanctioning power against the country by designating Cuba a state sponsor of terrorism and also making it extremely difficult for expat Cubans to send remitances back to their families. The Biden Administration has yet to reverse Trump-era policies towards Cuba.

Orgs across the ideological spectrum denounce yet another unauthorized airstrike by Biden. While Congress is close to repealing the 2002 Iraq AUMF, foreign policy orgs from the left and the right are worried that Biden’s unauthorized June 27th strike on targets on the Iraq-Syria border continues a dangerous expantion of Article II authority interpretation, which Biden cited to justify the strike, and called on congress to introduce a War Powers Resolution. 24 orgs signed a letter outlining similar concerns in response to Biden’s February strike.

ICYMI: SFOPs Committee Report calls for pressure to end the Saudi blockade of Yemen. The FY2022 State, Foreign Operations, and Related Programs Subcommittee Appropriations Report contains a short but crucial section calling on the Secretary of State to pressure Saudi Arabia to “to unconditionally ease all restrictions on Yemen’s ports and airports and to enable the free flow of fuel, food, and medicine into and throughout Yemen.” While Congress has yet to exercise its full congressional authority to ensure a complete end to US support for Saudi Arabia’s war and blockade on Yemen, this signals lawmakers’ continued concern on the matter. Yesterday, Rep. Khanna blasted Biden Admin officials, who met with the Saudi Deputy Defense Minister without demanding an end to the blockade. For the congressman, this signals that Biden is walking back his promise of making the Kingdom a “pariah.

After a closed-door briefing on AUMF repeal, Menendez says it’s time to move forward. After a handful of Republicans on the Senate Foreign Relations Committee delayed the progress of repealing the 2002 Iraq AUMF by calling for a hearing to discuss the matter further, chairman Menendez said he is ready to continue moving the repeal bill forward with mark-up, despite the lingering ideological differences on the committee. GOP senators, however, are determined to either outright oppose the bill or amend the bill to retain some military authorizations for the president.

Over 100 groups call on Biden to end lethal US airstrikes outside of recognized battlefields. Their letter criticizes the “unilateral power to authorize secretive extrajudicial killing” claimed by successive presidents and urges Biden to use his current review of US drone use policy as an opportunity to reverse course on our lethal strike program.

Warren and Khanna call on DoD to review civilian casualty counts. In a letter penned to Secretary Austin on June 30, Sen. Warren and Rep. Khanna expressed skepticism towards a June report tallying the amount of casualties resulting from US military operations over the past year. According to reports by the UN and other conflict monitors, the DoD may have significantly undercounted the casualty figures. The lawmakers also rebuked the DoD for not spending a single dollar on payments to the families of victims killed by the US military, despite existing congressional earmarks for it.

We don’t have much to say on Haiti right now, but we are concerned about the potential deployment of US troops to the country following the assassination of Jovenel Moïse, a move which the Biden admin has yet to rule out. Equally concerning are reports that some of the hit men detained were US law enforcement informants. Although published the day before Moïse’s assassination and its subsequent political fallout, we recommend this piece by Jake Johnston of the Center for Economic and Policy Research, which provides a brief but useful background on Biden’s continuation of Trump’s Haiti policy and those in congress pushing back.

Not an episode of Veep: Michèle Flournoy accidentally speaks at an MEK rally. It’s not worth spending too much time on, but we thought Flournoy’s recent flub of inadvertently speaking at an event hosted by the Mojahedin-e Khalq (MEK) — a cultish Iranian exile group who used to be on our terrorist list for a while — was very demonstrative of some issues with the DC Blob. Like, lining your pockets with speaker fees to promote hawkish agendas without doing a second of research, or the unusually strong influence the MEK continues to have in DC.

CALENDAR

Today (Wednesday): Matt Olsen hearing to lead DOJ NSD in Senate Judiciary Committee at 10 am

Thursday: House Appropriations CJS markup of the FY 2022 Appropriations bill at 3 pm + Ed Gonzalez hearing to lead ICE in Senate Homeland Security and Governmental Affairs Committee at 10:15 am

HFAC’s July schedule

Schumer warns August recess in danger as infrastructure work piles up

RELEVANT, TOO

I was a prosecutor at Guantánamo. Close the prison now.

The NSA wants to collaborate with industry in a major institutional shift

Civil Liberties Worries Loom in Plan to Identify Insider Threats

Senate NDAA markup begins July 19th, according to our friends at Point of Order (Due Process Institute’s excellent newsletter)

U.S. Capitol Police to open California [and Florida] office following Jan. 6 attack

‘So, So Angry’: Reporters Who Survived the Capitol Riot Are Still Struggling