Secure Liberties Newsletter

Hajar on February 17, 2022

TOP LINE

Huge: Sens. Heinrich and Wyden reveal the CIA is conducting bulk surveillance of financial records and… something else. According to their letter, the CIA has been operating these programs for years, acquiring not only financial transactions but also some other kind of record — in bulk. The released documents also make clear that this surveillance is impacting people in the United States. Most notable to us is the CIA’s explicit reliance on “the President’s inherent constitutional authority to collect foreign intelligence.” This may sound familiar to the dozens of members who asked several still-unanswered questions about Executive Order 12333 way back in 2020. The NY Times, among others, has the story here. Cato’s Pat Eddington, who has been hunting these documents for years, discusses the revelations here.

Lawmakers declare intent to push another War Powers Resolution due to ongoing US support for war on Yemen. Last week, a few days after the one year anniversary since President Biden promised to end all US support for the Saudi-UAE-led coalition’s offensive operations in Yemen, Reps. Jayapal and DeFazio published an op-ed declaring they will work with colleagues to pass a War Powers Resolution in Congress to end the US’s unauthorized support for the war. In 2019 Congress successfully passed a similar War Powers Resolution, but did not withstand Trump’s veto. The announcement comes as eight million Yemenis are at risk of losing access to humanitarian aid due to historically low funding and escalation in violence. If Biden decides to re-list the Houthis as a terrorist organization (as both Israel and the UAE are pressuring him to), access to humanitarian goods could be further threatened.

ABROAD

Biden makes a decision on Afghanistan’s frozen reserves, and the result could be catastrophic. Last Friday, Biden announced the fate of more than $7 billion in Afghanistan’s central bank assets – which was frozen by the Fed after the Taliban takeover of Afghanistan. Through an executive order, Biden authorized the official seizure of the funds, which will then be split between families of the victims of 9/11 litigating for damages and a humanitarian aid trust fund (TBD what that actually entails) for Afghanistan. This comes as a disappointment to advocates, including Shah Mehrabi, who runs the independent central bank of Afghanistan. He and others have pleaded for the reserves be used, with transparency mechanisms, to urgently address the country’s liquidity crisis, which poses one of the greatest threats to the economic stability of the country.

But Biden’s former Afghanistan counsel stands to rake in millions from the move. Lee Wolosky, who works for Jenner & Block LLP, a firm representing family members of 9/11 victims poised to receive part of the $3.5 billion mentioned above, was appointed as a “special government employee” counseling Afghanistan withdrawal policy for the Biden admin in September 2021 after accepting 9/11 victims’ case on January 13, 2021, reports Lee Fang and Ryan Grim at The Intercept. Although formally recused from deliberations on what to do with the reserves, this conflict of interest raises many questions we hope to have answers to in future SLN editions.

40+ orgs pushback on Biden’s NDAA signing statement. A letter signed by 42 foreign policy, natsec, and government transparency groups, criticized Biden’s late December statement, which claimed the constitutional authority to withhold certain national security information deemed “highly sensitive” to Congress, despite legislative requirements to do so. One of these requirements mandated a summary of military execute orders and civilian casualty policies – which Congress has demanded since the FY 2020 NDAA. The signatories explained that the withholding of such information violates separation of powers as well as impedes Congress from their constitutional responsibility over matters of national security, the military, and war. Katherine Yon Ebright at the Brennan Center for Justice wrote an op-ed in The Hill explaining how the signing statement illuminates broader and longstanding issues in DOD compliance with transparency.

Speaking of a lack in DOD transparency, a new ‘label’ is being used to hide info on major weapons programs. The Pentagon’s testing office submits annual reports on all the weapons programs the US throws billions upon billions of dollars at. This year, they submitted two reports: one for the public and one for military officials and staff for congressional defense committees. For the public version, the DOD has created a new label of “Controlled Unclassified Information,” which according to Senator Warren, has heavily redacted information on at least 22 programs, some of which are programs known in the past to have serious flaws.

P5+1 “days away” from final decision on the future of the JCPOA, French FM Jean-Yves Le Drian said. The current text of a deal to revive the nuclear deal with Iran has the support of European powers, the US and, importantly now, China and Russia. Iran’s FM, Hossein Amir-Abdollahian, said Iran still wants assurances the deal won’t be ripped up again, and called for a “political statement” from US Congress in support of the deal. Critics in Congress have raised issues over the diminished “breakout time” for Iran to acquire a nuclear weapon as a reason to oppose the current agreement. Paul Pillar, writing in Responsible Statecraft, explains what breakout time is and isn’t, and makes a compelling case for why it’s best to ignore the squawking of the hawks in Congress.

If you are interested in the diplomatic path with Iran, however, JStreet just launched IranDiplomacyWorks.org, a new web resource for lawmakers, commentators and other politically engaged Americans showcasing both the policy benefits of diplomacy with Iran, as well as the political soundness of supporting it. Check it out!

New report examines what alternatives to war the US could have taken post-9/11. Usually “woulda, coulda, shoudas” are seen as unhelpful when reflecting on the past – but it seems pretty appropriate to make an exception when assessing ways the US might have avoided the deaths of hundreds of thousands of people and the waste of trillions of dollars. A new report by Costs of War explores “robust non-military models of counterterrorism and offers examples of their use.” It not only provides a reflection point on how the US could have responded to 9/11 without starting endless wars, but provides a roadmap for potential changes in our counterterrorism approaches. Nick Turse writes on this more here.

“Time to Overhaul U.S. Civilian Harm Policies,” 100 organizations tell Biden. Last week a wide range of organizations, led by Center for Civilians in Conflict, penned a letter to Biden asking the admin to: commit to a public plan to address shortcomings in DoD civilian casualty reports; prioritize the protection of civilians in your ongoing review of U.S. counterterrorism operations; ensure full, independent, and transparent investigations of all credible reports of civilian harm; and provide meaningful accountability to civilian victims and survivors of U.S. operations. As we mentioned last issue, a recent congressionally-mandated RAND report outlined the structural failings in DOD’s civilian casualty mitigation policies, and was released with a DOD memo on steps it will take to be better. Luke Hartig in Just Security breaks those down here.

AT HOME

DHS’s twisted take on “[m]an’s best friend”: Robot dogs are the DHS’s newest attempt to “leverage technology to force-multiply the CBP presence” at the southern border. The CBP is currently testing these four-legged ground surveillance drones and plans to use them to encounter “potentially hostile individuals.” The ACLU and Mijente, along with other groups, previously documented concerns regarding border technology, including the disproportionate impact on marginalized communities. “Technology companies that were for a long time making a huge profit off of investment in [wars] abroad are now bringing that technology to our militarized border as a way of experimenting how far they can normalize this before making it widespread throughout the United States,” Jacinta González of Mijente told the LA Times.

Following ID.me: bipartisan backlash pressured the IRS into backing away from controversial facial recognition vendor, reports The NY Times. Per the ACLU, there are three primary problems with government use of ID.me: “the lack of accessible offline options,” “outsourcing a core government function,” and the “biased biometrics that aren’t subject to independent audits.” Despite the rollback of IRS facial recognition usage, other federal and state agencies have been utilizing ID.me facial recognition services. “Facial recognition technology is based on your face and that’s something you can’t change easily. Once you lose control of it, it’s extremely hard, if not impossible, to regain control of your identity,” said Jeramie Scott of EPIC, who led a coalition letter of over 40 groups urging the end of ID.me and face verification for access to government benefits and services.

Speaking of facial recognition software, homeless people might be the next target. ODIN Intelligence’s product will allow police “to identify and pull up information on people experiencing homeless[ness] through facial recognition technology,” reports VICE Motherboard. ODIN’s brochure “markets the product as being a tool to use against ‘problems’ such as ‘degradation of a city’s culture,’ ‘poor hygiene (use street as a restroom),’ and ‘unchecked predatory behavior.’”

50+ organizations oppose the EARN IT Act in a recent letter to the Senate Judiciary Committee. The coalition, led by CDT, is concerned that “EARN IT will actually make it harder for law enforcement to protect children” because “[i]t will also result in online censorship that will disproportionately impact marginalized communities and will jeopardize access to encrypted service.” Americans For Prosperity and the ACLU argue this anti-privacy legislation “would lead to a so-called ‘backdoor’ in encrypted services, thereby jeopardizing the security of every American.” EFF has more here.

Pegasus still a problem: VICE’s Motherboard obtained a 2015 email saying “NYPD intel” would receive “a demo of NSO Group’s controversial Pegasus spyware product.” NSO Group’s efforts to market their hacking technology to US police forces, including the LAPD and San Diego PD, was first reported by Motherboard in 2020. Relatedly, Israeli police recently claimed that they only used Pegasus to try to hack 3 people which contradicts reporting by Israeli news outlet Calcalist.

No-fly list pt. 2, but this time it’s for anti-maskers. Delta Airlines CEO Edward Bastian wrote to Attorney General Merrick Garland calling for support of a “no-fly” list for passengers convicted of “an on-board disruption.” In a recent editorial, WaPo came out in support of the request, saying “[g]reat idea. Why has that not already happened?” Well, the answer is simple. “The existing no-fly list is a civil liberties nightmare, and expanding it should be a non-starter” says the ACLU. Edward Hasbrouck has more here.

The Senate confirmed Sharon Bradford Franklin as chair of Privacy and Civil Liberties Oversight Board (PCLOB). After years of vacancy struggles, as WaPo put it, “[t]he reemergence of PCLOB as a fully functioning agency could bring fresh oversight to the federal government’s deployment of technologies like facial recognition and techniques like social media monitoring — the kind of scrutiny advocates have been clamoring for.” Franklin previously served as co-director of CDT’s Security and Surveillance Project.

CBP is limiting “critical incident teams” (CITs) responsibilities, per a memo in response to a request from Congress for information. The memo “issu[ed] new standards while consolidating internal investigative power in the Office of Professional Responsibility (OPR),” according to The Hill. It also “gives OPR greater power in reviewing a number of Border Patrol actions, including any use of force incident, any pursuit that results in injury or death, and any death of a CBP employee, and migrants in their custody or that they encounter.” For years, immigration advocates have been raising concerns about CITs’ role in “cover[ing] up incidents of abuse by agents.” The Southern Border Communities Coalition said that the CBP “failed to meaningfully respond to the specific requests for information from Congress and failed to identify any legal authority under which BPCITs operate.”

Facebook/Meta ditching Europe? Meta’s Securities and Exchange filing indicates that it may resort to shutting down Instagram and Facebook in Europe “[i]f a new transatlantic data transfer framework is not adopted and [they] are unable to continue to rely on SCCs or rely upon other alternative means of data transfers from Europe to the United States.” This follows a 2020 ruling by “the European Court of Justice [stating that] the data transfer standard between the EU and the U.S. doesn’t adequately protect European citizens’ privacy,” per CNBC. In response, Meta claimed that they “have absolutely no desire to withdraw from Europe… [b]ut the simple reality is that Meta, like many other businesses, organisations and services, relies on data transfers between the EU and the US in order to operate [their] global services.” The Biden administration has been pushing for a new data transfer agreement, and promising it was around the corner throughout, despite severe concerns about US surveillance.

“[T]he politics surrounding [Guantanamo]… are much more conducive to closure now than they once were,” writes Center for Victims of Torture director, Scott Roehm. He explains the post-Obama era shift has created an opportunity for Biden to act on Guantanamo closure.

WHAT’S HAPPENING

Starting February 23rd, a 5-part course: Tech Wars: Building the force against surveillance and policing in the digital world.

ICYMI last week: ‘Targeted Killing’ and the Rule of Law: The Legal and Human Costs of 20 Years of U.S. Drone Strikes – Senate Judiciary Committee Hearing

RELEVANT, TOO

Responsible Statecraft: Army of Ukraine lobbyists behind unprecedented Washington blitz

AP: Temple prof seeks reinstatement of damage claims against FBI

NYT: Panel Backs Transfer of Guantánamo Detainee Suspected of 9/11 Role

WaPo: Fatal police shootings in 2021 set record since The Post began tracking, despite public outcry

Eunomia Substack: Public Opinion on Foreign Policy Is Malleable

POLITICO: Canada defends emergency action as way to stop ‘overthrow’

Government Executive: The National Security Agency has been working with the Pentagon’s CIO to understand how agencies might be able to fund their journeys to zero trust.

Congressional Research Service: Congress and the War in Yemen: Oversight and Legislation 2015-2021 – Updated 2/10/22