Secure Liberties Newsletter

seanvitka@gmail.com on November 18, 2021

TOP LINE

NDAA Ahead! After a cloture vote was delayed due a last-minute attempt to merge the U.S. Innovation and Competition Act of 2021 (USICA) and the NDAA, the Senate finally cleared the procedural hurdle last night after Schumer and Pelosi agreed to negotiate the USICA language separately. A motion to proceed is on the docket for a vote this morning. As the Thanksgiving recess approaches, the time crunch adds even more uncertainty over the fate of over 900 amendments to be considered either en bloc or for a floor vote (though it’s unlikely many will receive the latter). We have more NDAA talk below.

Congress is gearing up for a fight on continued US military assistance to Saudi Arabia. Remember that $500 mn military contract with Saudi Arabia we included in our topline last edition? Well, right after we hit send, the State Department announced more military support to the Kingdom. This time, it’s a $650 mil sale in advanced missiles. In response, Rep. Omar introduced a joint resolution of disapproval (JRD) per the Arms Export Control Act (AECA) to block the sale. But a Senator must do the same in order to force a vote under AECA procedure. Yesterday, Sara Sirota at The Intercept reported that Senator Rand Paul is likely to lead the JRD charge in the Senate, with Sen. Sanders co-sponsoring. Earlier in May, Sen. Warren led 15 other Senators in a letter calling for Biden to use “pending arms sales” as leverage in demanding the Kingdom end its deadly blockade of Yemen.

TS/SCI clearances in the Senate! (Not the House, though.) Majority Leader Schumer told Democrats that each personal office will be eligible to receive the highest clearance for one staffer. Demand Progress and dozens of other good governance groups have been calling for this and other oversight reforms for years. Per Politico, “For roughly 35 years, the only staffers that are able to get such a high clearance work on select committees or in leadership’s offices.” This also means that the House is now two steps behind, factoring in that SSCI members have committee staff designees but HPSCI members do not.

NDAA

While we wait on more NDAA news, here are a few of the many amendments we are keeping an eye on:

SA 4535 (Sen. Sanders) Prohibition on support or military participation in Saudi-led operations in Yemen: If you’ve followed the SLN you know we’ve been closely tracking efforts to end US support for the war on Yemen. This amendment is a companion to Rep. Khanna’s which passed in the House NDAA this year and specifically ends key forms of US support for the Saudi-led coalition’s offensive operations in Yemen, including the blockade. There is already Yemen language in the base Senate NDAA text, but as Marcus Stanley explains in Responsible Statecraft, it contains significant loopholes that would allow the administration to override a ban on US support for the Saudi-led coalition’s offensive operations. The admin has come out against including any of the Yemen language in the NDAA.
SA 4705 (Sen. Lee) Declassification of historical FISA decisions, orders, and opinions: The executive branch has declined to apply declassification and publication rules to FISA Court opinions that predate June 2015, despite Congress’s intent. This would require the Director of National Intelligence to review significant historical opinions for release. (Link)
SA 3898 (Sen. Warren) Report on all comprehensive sanctions imposed on foreign governments: This companion to Rep. Chuy García’s House version amendment would require a GAO report of the impact of major US sanctions regimes. Criteria would include a slew of humanitarian impact categories. It would also increase transparency around licensing and exemptions procedures, and includes assessments of sanctions’ effectiveness at achieving stated goals. A Congressionally-directed report sounds like a good idea, given the Biden Admin’s failure to produce a substantive sanctions review this year.
SA 4533 (Sen. Sanders) Report on humanitarian impact of Gaza restrictions: This first-of-its-kind language would require a report on the economic, humanitarian, political, and psychological impact that severe restrictions on movement and access has on Palestinians in Gaza, and exploring various options to relieve these negative impacts, such as replacing Israel’s current inspection mechanism with a United Nations mechanism, as with Yemen, and the formation of a new international agreement. On Monday, 70 organizations sent a letter to Senators encouraging support for the amendment.
SA 4632 (Sen. Lee) NEA/IEEPA reform: This amendment is actually the ARTICLE ONE Act led by Senator Lee (also part of the National Security Powers Act), which would overhaul congressional oversight and approval of presidentially declared national emergencies. We’re interested in it because of its implications for the International Emergency Economic Powers Act, which gives the president the authority to unilaterally levy crippling sanctions around the world. Under the proposed reforms, national emergencies would have automatic sunset provisions, requiring affirmative Congressional approval for extension.
SA 4133 (Sen. Kaine) 1991/2002 Authorizations for Use of Military Force repeal: This one is pretty straightforward. These authorizations are completely outdated. While they aren’t necessarily relied upon anymore as main legal justifications for active US hostilities, repealing them would be a stepping stone for other congressional action on war powers. This one is likely to get a floor vote, per Senator Schumer’s announcement. Check out this op-ed for the veteran perspective on the repeal.

ABROAD

More scrutiny over US airstrike policy as new evidence shows a 2019 airstrike killed dozens of civilians. A new report has uncovered evidence that a 2019 airstrike by US forces in the campaign against the Islamic State killed over 64 women and children, amounting to a possible war crime. The death toll was immediately apparent to military officials, however the report details how higher up officials went out of their way to downplay the amount of deaths and bury a required independent inquiry on the bombing. After these details were uncovered, Defense Secretary Lloyd Austin has called for briefings on the airstrike, but it is not yet clear if he will push for an independent investigation.

Orgs want the Biden Admin to remove barriers for preventing humanitarian disaster in Afghanistan. 17 organizations sent a letter on Tuesday applauding recent humanitarian aid pledges to Afghanistan, while also calling on Biden to take crucial measures to prevent further crisis, such as: ensuring organizations providing food and healthcare to Afghans aren’t hindered by US sanctions policies; focussing assistance on healthcare facilities; and unconditionally releasing portions of the $9.5 billion in Afghanistan’s Central Bank reserves frozen by the US, which can be used to prevent an economic collapse.

Is Saudi Arabia’s Mohammed bin Salman (MBS) purposefully driving inflation in the US? That’s what Ryan Grim and Ken Klippenstein say in their piece at The Intercept. In examining recent geopolitics and statements from Biden, they argue that MBS is refusing to increase OPEC production of oil as retaliation for Biden’s reluctance to meet with the crown prince, the admin’s shift from Trump-era support for the Kingdom (despite continued assistance with weapons, logistics, and spare parts for their military force), and as a way to shore up his support with the GOP.

As an arms control debate brews, a new bill would beef up House oversight of arms sales. As discussed above, the Arms Export Control Act allows for expedited procedures for votes to block arms sales in the Senate (like what happened in 2019), but not in the House. This month, Reps. Omar, Lieu, and Jacobs also re-introduced the Arms Sale Oversight Act, which would allow House lawmakers to force a vote on major arms sales under the AECA.

AT HOME

Data broker Veraset gave DC Health Dept. “billions of ‘highly sensitive’ phone location records” in 2020, according to records obtained by EFF and reported on by WaPo. EFF described it as an attempt to “covid-wash” the maligned industry and questioned whether such data could truly be anonymized (it wasn’t and can’t be). Meanwhile, we still haven’t seen any hearings about explosive revelations that the government is buying this information with no Congressional or judicial authorization.

The US is continuing its push for a replacement of Privacy Shield by the end of the year, most recently by trying to get EU negotiators to accept an offer that includes faux-judicial review by “independent judges” — under the Director of National Intelligence, according to Politico. It’s an interesting gambit. What we’re hearing on the EU-US talks: the EU thinks, like every expert we’ve spoken with, that a new data transfer agreement depends on new legislative reforms to US surveillance, lest the Court of Justice of the European Union strike it down again in Schrems III. The admin, conversely, argues that executive orders alone would be adequate — at least for now.

841 faculty members, scholars, and administrators from 202 universities across the country called for termination of the “China Initiative” in an open letter to AG Garland organized by the APA Justice Task Force. They argue the effort disproportionately targets researchers of Chinese origin, pursues crimes that have nothing to do with espionage or IP theft, and harms the future of the US’s STEM workforce. Meanwhile, the first person indicted under the China Initiative, Kansas University Professor Franklin Tao, heads to trial on December 6. That trial was rescheduled after the government issued to the defense a formal Classified Information Procedures Act (CIPA) notice.

An FBI email system was compromised and sent thousands of fake supply chain attack alerts, per Politico. The FBI says the issue came from a “software misconfiguration.” The good news is this doesn’t appear to have involved wrongful access of any sensitive information, though that also speaks to the severity of the “misconfiguration.”

Following up on GTMO — Boston Globe to Biden: Declassify CIA torture program. The Editorial Board’s op-ed argues that it’s “the only way to make sure that something like America’s torture program never happens again.” It comes after The New York Times reported on a letter from the military officers who served on the jury of the most recently sentenced Guantánamo detainee. Among other things, those officers argued that his torture “is a stain on the moral fiber of America; the treatment of Mr. Khan in the hands of U.S. personnel should be a source of shame for the U.S. government.”

Speaking of GTMO: Here’s CVT’s Scott Roehm’s moving piece about a torture survivor’s statement at the Guantánamo Military Commissions. Here’s the statement itself. Still speaking of GTMO: Prosecutors are finally going to review “hundreds, perhaps thousands, of pages of classified” CIA documents given to defense lawyers that may have been “too heavily redacted.“

Following up on the group that follows people: Commerce blacklists Pegasus creator NSO Group. As WaPo reports, the Israeli spyware company was added to the “Entity List” after commerce determined “its phone-hacking tools had been used by foreign governments to ‘maliciously target’ government officials, activists, journalists, academics, and embassy workers around the world.” Commerce said the move is part of an administration effort “to put human rights at the center of U.S. foreign policy.”

WHAT’S HAPPENING?

TODAY, Wed, Nov. 18 @ 9:00AM – 10:00AM ET: Engaging with Afghanistan to Prevent a Humanitarian Disaster hosted by the Quincy Institute for Responsible Statecraft

Mon, Dec. 6 @ 11:30AM – 1:00PM ET: Advancing the Debate about the Humanitarian Impact of Economic Sanctions

RELEVANT, TOO

Progressive RI lawmakers want Reed to cut aid to Saudi Arabia

Harry Dunn challenging Gus Papathanasiou for Capitol Police union leader

Never Mind Yemen, Biden OKs $1 Billion in Weapons Sales To Saudis

Feds likely to fall short of deadline for strengthening encryption, multifactor authentication

Explainer: Iran’s Frozen Assets

An Illinois police union on Wednesday ousted from its membership an officer facing criminal charges for exposing a squad car video that showed his fellow officers slapping and cursing a man dying of a drug overdose.

AAJC Submits Comment to the White House Office of Science and Technology Policy Raising Concerns of Profiling and Criminalization of Asian Americans and Asian Immigrants

ICYMI: The Scientist and the A.I.-Assisted, Remote-Control Killing Machine
The PATRIOT Act’s Poisoned Tree: Two decades after 9/11, the government’s appetite for spying has only grown.

U.S. Policymakers Are Misreading Iran

Sharp relief: Automatic benefits and the Iran nuclear deal