Secure Liberties Newsletter
TOP LINE
The public’s support for surveillance ten years ago has flipped to opposition, according to a new AP-NORC poll. There’s a lot to say about the twentieth anniversary of 9/11, and today’s newsletter is longer in the interest of including several important takes below, but this sea change reflects a great deal about the underlying currents:
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46% of Americans oppose warrantless surveillance of emails between people outside the US, vs. 27% in favor. 10 years ago, it was 47% support, 30% oppose.
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44% of Americans oppose warrantless surveillance of calls between people outside the US, vs. 28% in favor.
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“About half” of Americans are opposed to monitoring internet searches, and only “a quarter” are in favor. Over 80 groups endorsed this protection in 2020.
The first two findings are particularly remarkable given they relate to non-US persons outside the US — dozens of groups and members of Congress endorsed establishing that protection for people inside the US in July and are still fighting for a vote. On the third point, you may recall that House leadership and HPSCI Chairman Schiff inadvertently tanked the entire 2020 Patriot Act reauthorization after installing a hole in an amendment designed to protect against surveillance of internet searches. Whoops! (We’re still waiting on some answers.)
Slew of progressive foreign policy amendments to the NDAA get a vote. On Tuesday the House Committee on Rules decided which of the 800 amendments filed for the FY 2022 National Defense Authorization Act would receive a vote. While many were cut, several amendments promoting progressive foreign policy made it through. Yesterday, many of them were debated on the House floor. Below we dive into some of the key amendments, which should receive votes today.
‘I Helped Destroy People’ — The New York Times Magazine published a truly extraordinary expose on Terry Albury, the first FBI special agent since Robert Hanssen, who spied for the USSR and Russia, to be convicted under the Espionage Act. Albury’s crime, however, involved leaking documents that exposed “the hidden loopholes that allowed agents to violate the bureau’s own rules against racial and religious profiling and domestic spying as they pursued the domestic war on terror.” The story offers rare insight into the FBI’s need to “validate” the idea that there is “a terrorist in every mosque,” and how the search for informants depends on “tak[ing] people from foreign countries where they have secret police and recruit[ing] them as informants and capitaliz[ing] on their fear to ensure there is compliance.” We can’t recommend this one enough.
NDAA
While we’d love to go over the nearly 476 NDAA amendments made in order for a vote — it’s probably best to just stick with some of the key ones we’ve been following. For a more in depth overview, we recommend the Congressional Progressive Caucus Center’s explainer.
The House to vote on ending all US support for the Saudi-UAE coalition’s war — again. Rep. Khanna, along with 16 co-sponsors that includes Chairmen Smith and Schiff of the House Armed Services Committee and House Intelligence Committee, respectively, are supporting an amendment that would end all US support for the Saudi-UAE coalition’s war and blockade on Yemen. A similar amendment passed the House in 2019 with bi-partisan support and the support of nearly the entire Democratic Caucus. Crucially, the Khanna amendment would end US support to the Saudi-led coalition via intelligence sharing, logistical support, maintenance and transferring of spare parts to the Royal Saudi Airforce. Earlier this week, more than 50 organizations sent a letter to Congress urging this language to be included in the NDAA. Quincy Institute’s Annelle Sheline outlines the importance of this vote in Responsible Statecraft.
Rep. Bowman wants Congress to vote on US troop presence in Syria. Freshman Representative Jamaal Bowman, who defeated HFAC chair Eliott Engel last year, introduced an amendment with a straightforward premise: US troops shouldn’t be in Syria without congressional authorization, in accordance with the War Powers Resolution of 1973. Lacking this authorization, forces are to be withdrawn within a year of the NDAA becoming law. See Rep. Bowman’s speech defending the amendment here.
Progressives fight to cut the Pentagon budget. Rep. Barbara Lee and Rep. Pocan have both led progressives with two amendments aimed at curbing Pentagon spending. The Pocan amendment aims at reducing the defense spending top line by 10 percent (excluding any cuts to military personnel, DoD federal civilian workforce, and defense health program accounts). Lee’s amendment seeks to reverse the House Armed Services Committee’s $24 billion dollar increase to the NDAA, which exceeds the amount requested in Biden’s budget proposal. On Tuesday, 49 organizations penned a letter to Congress supporting these amendments. Last week a top general, Air Force Gen. John Hyten, also called for a restrained budget.
Transparency over the impacts of US sanctions policy. Rep. Chuy García is leading 7 other co-sponsors in supporting a comprehensive impact assessment of US sanctions. The required report would examine several categories of humanitarian impacts of US sanctions on civilian populations, analyze Office of Foreign Assets Control (OFAC) licensing of essential goods and services, and look at the effectiveness of US sanctions in forwarding foreign policy/ national security objectives. This sort of assessment has been a longtime demand of dozens of civil society, faith based, and humanitarian organizations, who have been concerned at how long the Biden Admin’s promised sanctions assessment has taken, which covers a much more narrow scope. The measure is set to be included in the second en bloc package. This piece by Daniel Drezner in Foreign Affairs delves into some of the myriad problems related to US sanctions policy.
OTHER NEWS IN FOREIGN POLICY
ICYMI: Brown University’s Costs of War Project updates figures for Post-9/11 Wars and Center for International Policy examines corporate beneficiaries of war. In a webinar earlier this month, researchers at the Costs of War Project unveiled an updated report on the human and financial costs of the US’s post-9/11 wars. The sobering assessment estimates an overall cost of $8 trillion in current dollars (which includes projected spending on veteran’s care and future obligations), and almost a million lives lost. Another report this month in conjunction with the Center for International Policy, found that the Pentagon has spent nearly $14 trillion since the start of the war in Afghanistan, with one-third to one-half of that figure going to military contracts. Of those contracts, one-quarter to one-third have gone to only five major corporations.
The Pentagon admits that only civilians, and no ISIS-K members, were killed in a US airstrike in Afghanistan. Last month during the Afghanistan withdrawal, US forces launched an airstrike on a vehicle it claimed to be transporting ISIS-K militants. After weeks of defending the strike, officials finally admitted that 10 civilians were killed, 7 of them children. Relatives of the deceased are demanding justice, but as Pesha Magid notes in The Intercept, the US rarely offers compensation to the families of civilians it kills.
After backlash from progressives, funding for Israel’s “Iron Dome” defense system was stripped from the continuing resolution. $1 billion was included in the continuing resolution that would delay a government shutdown by 9 weeks. According to Politico, Democrats who earlier this year pushed to block a weapons sale to Israel convinced leadership to drop it from the bill after raising objections to its inclusion in a continuing resolution rather than the normal legislative channels for this type of funding. Appropriations chair DeLauro introduced a separate bill yesterday that provides the funding. On the Senate side, progressives are mulling whether to link aid to Palestine with Iron Dome support.
US Envoy to Haiti resigns with strong words on US refugee and foreign policy. US envoy to Haiti resigned over the US’s “inhumane” policies towards Haitian refugees and rebuked our “deeply flawed” policy towards the country in general, including the numerous failed political interventions in the country and sidelining Haitian civil society. This comes as the Biden Administration continues mass deportations of Haitian asylum seekers, and as Border patrol violently confronts Haitians refugees on the southern border (discussed further below).
CIVIL LIBERTIES AT HOME
Fourth Circuit on Section 702 (PRISM and Upstream): state secrets privilege > FISA disclosure statute. Wikipedia is still suing the NSA (and appealing this ruling), 7 years into litigation as it tries to challenge the controversial spying authority known as Section 702 (Opinion here). Reps. Lofgren and Spartz, with fifteen colleagues, are also pushing on the FBI’s use of Section 702, pointing to what the FISC describes as “apparent widespread violations.” They reiterated the demand of HJC members for a Member-level briefing here. Oh, and since our last issue we also learned that the FBI’s rate of Section 702-compliance problems spiked to 34% thanks to two massive and unlawful “batch” searches of the information, one of which included over 100,000 queries.
US Border agents on horseback are using reins to whip Haitian migrants at the border, per the El Paso Times and Vice. Al Jazeera has some video here. The stunning photos have produced significant pressure on the Biden administration, with Press Sec Jen Psaki describing the footage as “obviously horrific.” Yet DHS Secretary Mayorkas has equivocated, mostly based on the word ‘whip.’ It’s hard to take such a distinction seriously when people like Rep. Tony Gonzalez are claiming the agents are “doing God’s work.” If this story caught your eye, be sure to also note that immigrant activists say they are being deliberately targeted by ICE, with the legal director of Just Futures Law calling it “a broad and national problem.”
NYPD had a surveillance slush fund, according to Wired. Through it, the NYPD purchased “facial recognition software, predictive policing software, vans equipped with x-ray machines to detect weapons, and ‘stingray’ cell site simulators—with no public oversight.”
ACLU, CDT, and 90 more groups take aim at Apple’s plan to pop its own encryption. The ACLU’s take is illuminating, written by well respected technologist Daniel Kahn Gillmor, arguing that “[t]hese changes are a step toward significantly worse privacy for all iPhone users, and are especially troubling for activists, dissidents, whistleblowers, members of oppressed groups like LGBTQ people, people of color, those facing religious persecution, and other vulnerable people.” Meanwhile, the Center for Democracy & Technology led a barn burner coalition letter criticizing the tech giant’s plans: “Thus, Apple will have laid the foundation for censorship, surveillance and persecution on a global basis.” Even Apple’s employees are concerned. If you want the quickest take, check out cryptography expert Matthew Green’s thread here.
There is a way to close Guantanamo, according to Ian Moss, the attorney at DoD’s Military Commissions Defense Organization who represents Majid Khan. This thoughtful piece is worth the read for anyone tracking GTMO — Moss argues the path to closure relies on transferring detainees who don’t face criminal charges, negotiated resolutions for those who do, and recognition of the government’s “original sin”: torture. The inestimable Carol Rosenberg has more on that point here. Meanwhile, the judge who presided over the only 9/11 trial against a member of al-Qaeda says that terror cases should be in US courts: “It’s just amazing to me that the rest of the culprits in this case have not been brought to justice.” Relatedly, the case against three GTMO prisoners for their role in the 2002 Bali nightclub bombings just began — after 18 years. In August, 75 Representatives sent President Biden a letter calling for closure.
Politicians discover subpoenas are powerful surveillance tools, with Pennsylvania Republicans voting for a subpoena for information about all voters in the 2020 primary and November elections. They’ll get names, dates of birth, driver’s license numbers, and the last four digits of social security numbers, which is driving big concerns around cybersecurity and privacy, per WaPo. Relatedly, the January 6th House committee has asked tech companies to preserve a broad swath of information related to the Capitol insurrection — concerns around this are likely to grow. The Brennan Center’s Liza Goitein did a great job dissecting the issue in Just Security.
Former natsec officials (and current recipients of tech funding) say trust the trusts: Panetta, Coats, and ten others sent a letter arguing antitrust efforts in the House would empower China and undermine national security. The American Economic Liberties Project argue exactly the opposite, saying “they’ll put profits over security every time.” Relatedly, ACRE, MPower, and other groups have published new research revealing that tech giants have made billions off the war on terror.
Garbage in, Gospel out: a new NACDL report identifies how racial bias impacts “data-driven” policing and communities in turn. In addition to offering various policy recommendations, the report also serves as a resource for defense lawyers in places where data-driven policing technology is employed — so be sure to forward this along to any defense attorneys you know!
Americans for Prosperity and Brennan Center for Justice team up to back the ACLU in front of SCOTUS on FISC transparency. Everyone is eager to see how this one pans out — especially given that the executive branch continues to withhold significant FISC opinions from before May 2015.
Leaks: Since our last issue, we learned that the CIA drove a spike in media leak investigations under Trump, and drone whistleblower Daniel Hale was sentenced to nearly 4 years in prison. The first will take time to unpack. On the latter, we would refer you to Jeremy Scahill’s call for a pardon, as well as Chip Gibbons’s detailed take here. Former (R) HJC Chair Bob Goodlatte joined up with former (D) Rep Rick Boucher to tackle the broader question of shielding the press here.
WHAT’S HAPPENING?
UNHRC Side Event: In Pursuit of Human Rights and Accountability: Challenges Around Regulating the Use of Force with Armed Drones (organized by Reprieve and PAX)
Sept. 24th – 9:00-10:30 EST
Towards a multipolar world: An International Peace Forum Sept. 25, 09:00 – 11:00 EST
Has Making Wars More Humane Helped Make Them Endless? (Organized by Quincy Institute for Responsible Statecraft) Oct 4, 10:00 AM
RESPONSES TO 20TH ANNIVERSARY OF 9/11
The Costs of 9/11’s Suspicionless Surveillance: Suppressing Communities of Color and Political Dissent (“[W]e can no longer hide from how turning to a domestic intelligence collection system untethered from criminal suspicion has facilitated the targeting of communities of color and political dissent.”)
The Patriot Act and Me (“As a kid, I tried out photography. Then the FBI searched my home.”)
Feeling Fear Where My Parents Sought Refuge: The precarious identity of Muslim-Americans after 9/11.
PBS: Post-9/11 surveillance has left a generation of Muslim Americans in a shadow of distrust and fear (“Though it’s hard to quantify how many Muslim Americans have been affected, since such government programs are often secret or classified, being surveiled has left a generation of Muslim Americans struggling with feelings of distrust and fear.”)
The Legacy of America’s Post-9/11 Turn to Torture
Forever Wars Won’t End if the Surveillance State’s Still Here
Secrets, Surveillance, and Scandals: The War on Terror’s Unending Impact on Americans’ Private Lives
RELEVANT, TOO
The Most High-Profile Al Qaeda Plot Foiled After 9/11 Was An FBI Scam
AAJC: Asian American Civil Rights Group Applauds Acquittal of University Tennessee Professor Unjustly Prosecuted Under the “China Initiative” (“What happened to Dr. Hu and his family is not an isolated event and is part of systemic racial bias, discrimination, and profiling by our federal government against scientists and researchers of Asian descent across the country.”) We covered 5 more dropped cases in our last issue before recess, and also recommend reading this juror’s take.
ReThinking Iran Initiative: Iran Under Sanctions
The out of control Commerce security unit that we talked about last time is shutting down
Biden to tap privacy hawk for FTC post (Alvaro Bedoya)
The Taliban Have Seized US Military Biometrics Devices
Secret terrorist watchlist with 2 million records exposed online
Privacy, technology groups urge Biden to revive surveillance oversight board
SecDef Employee in Just Security: The Executive Branch Needs Intelligence Oversight Reform (“Consider a hypothetical of a non-intelligence activity: an information operations analyst, working at Special Operations Command, uses a powerful open-source tool kit, such as Babel Street, without authorization, intentionally builds a dossier that aggregates intimate details of a U.S. citizen, perhaps even a member of Congress or a domestic, civil-society organization, like the ACLU.”)
WaPo: Three former U.S. intelligence operatives admit to working as ‘hackers-for-hire’ for UAE
FBI Spy Planes Monitored a Single Suspect for Nearly 429 Hours (warrantlessly, with cell-site simulators / stingrays and “more than 400 hours in the air with a fleet of Cessna aircraft registered to what appear to be front companies.”)
Not enough FBI problems yet? Let me tell you about the FBI-Palantir Screwup that Let Agents Access Information They Weren’t Supposed to See (access to that information is enabled by default, making it blindingly clear that the FBI doesn’t employ enough UI experts, which led to “poking around the same evidence without approval.”)
Daniel Hale Went to Prison for Telling the Truth About US Drone Warfare
Classified Legislation: Tracking Congress’s Library of Secret Law
New Declassification Reforms Are Classified
CRS: Intelligence Community Whistleblower Protections (updated 6/22/21)
By the way, what’s going on in Australia? On COVID: Australia Traded Away Too Much Liberty; on surveillance: Unprecedented surveillance bill rushed through parliament in 24 hours.
BOTTOM LINE
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