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Why Rights Groups Worry About The Philippines' New Anti-Terrorism Law

Julie McCarthy

A protester wearing a face mask demonstrates against the Philippines' new anti-terrorism law on July 4, in Quezon city, Metro Manila. Earlier this month, President Rodrigo Duterte approved a law that critics say could lead to more human rights abuses. Ezra Acayan/Getty Images hide caption

A protester wearing a face mask demonstrates against the Philippines' new anti-terrorism law on July 4, in Quezon city, Metro Manila. Earlier this month, President Rodrigo Duterte approved a law that critics say could lead to more human rights abuses.

Updated at 5:12 p.m. ET

Petitions have piled up at the Philippines' Supreme Court to overturn a new anti-terrorism law championed by President Rodrigo Duterte, which could jail suspects without charge for weeks.

The government says it needs the legislation to combat insurgencies and that it safeguards freedoms. The Philippine Foreign Affairs Department even sent a letter to U.S. Congress members to allay concerns over the law, saying , "The Philippines remains committed to the protection of civil and political liberties as well as human rights."

But human rights groups warn that the hard-line Duterte administration could use the legislation to prosecute political opponents. The Philippine Catholic Church went so far as to compare the legislation to China's new national security law imposed on Hong Kong .

The law took effect Saturday at a time when the authorities are battling the coronavirus and arresting those caught breaching the lockdown. It follows widespread condemnation of the Duterte administration for harsh tactics against drug suspects and against government critics, as well as for undercutting civil liberties such as a free press, according to human rights advocates.

Here are some key takeaways from the debate around the Philippines' Anti-Terrorism Act of 2020.

The law greatly expands the definition of terrorism

It includes such broad offenses as "engaging in acts intended to endanger a person's life," intended to "damage public property" or "interfere with critical infrastructure," where the purpose is to intimidate the government.

The National Union of People's Lawyers has petitioned the Supreme Court to overturn the law on the grounds it is overly broad and essentially criminalizes intent.

One new offense, inciting to commit terrorism, is particularly problematic, the rights advocates say. The text says inciting others through "speeches, writings, proclamations, emblems, banners, and other representations tending to the same end" could carry a punishment of 12 years in prison.

"It chills freedom of expression. It chills free speech. It chills freedom of the press. It chills freedom of association," says Neri Colmenares, a leading human rights lawyer who is petitioning the Supreme Court.

The law does state, however, that it is not intended to punish advocacy, protest, dissent, industrial action and strikes, so long as they don't create "a serious risk to public safety."

"But who defines what is and what isn't a serious risk?" asks Aaron Sobel with the Carnegie Endowment for International Peace.

Defending the provision, National Security Adviser Hermogenes Esperon tells NPR that under the law, "activism is not terrorism."

But lawyer Colmenares argues that, for the Duterte administration, "terrorism is any form of dissent."

Most countries have anti-terrorism laws. The Philippines is no outlier

More than 140 governments have passed anti-terrorism laws since Sept. 11, 2001, with many expanding that legal arsenal over time.

The Philippines' legislation undeniably diminishes due process protections, but it does not widely diverge from what other countries in the region do.

Under the law, a terrorism suspect could be detained for 14 days without charge, a period that can be extended to 24 days. Human rights attorneys say that violates a constitutional provision that a person must be charged within three days of detention.

Esperon, the national security adviser, says it's not possible to build a terrorism case in 72 hours. "We need time to address criminals the likes of terrorists, especially when they're really good at covering their tracks," he says.

He says the government needs strong laws to prosecute militants aligned with the Islamic State and a decades-old communist insurgency.

He notes that the United States has held terrorism suspects far longer than 14 days. "And you keep some of them in Guantánamo, right? For how long?" he says.

The U.S. has held many detainees at the military prison in Guantánamo Bay, Cuba, for over a decade. Forty detainees remained at the facility as of 2019.

Around the world, advocates argue, terrorism suspects held for extended time without a charge could be subject to abuse or even torture.

Esperon says the Philippines' detention period is "one of the most limited" in the region, putting it on par with Australia and well below Singapore's two-year-long period of warrantless arrest for terrorism suspects.

The new law, however, includes a possible punishment of life imprisonment without parole, which rights advocates say leaves no chance for rehabilitation. The law also allows wiretaps and lengthy surveillance, which raises privacy concerns, according to rights activists.

Duterte's rights record hardens opposition to the law

Philippine President Rodrigo Duterte discusses issues related to the new coronavirus during a meeting with an infectious disease task force at the presidential guest house in Panacan, Davao City, southern Philippines, on July 7. Arman Baylon/Malacanang Presidential Photographers Division via AP hide caption

Philippine President Rodrigo Duterte discusses issues related to the new coronavirus during a meeting with an infectious disease task force at the presidential guest house in Panacan, Davao City, southern Philippines, on July 7.

The Duterte government's poor human rights record has amplified apprehensions over the new anti-terrorism law.

Duterte's drug war has killed at least 8,600 Filipinos since 2016, with "near-impunity," according to a United Nations report in June.

Recently, the government shut down broadcaster ABS-CBN and prosecuted veteran journalist Maria Ressa, CEO of the news website Rappler, for cyber libel, which ended with her conviction. Both outlets have aggressively reported on Duterte's leadership.

'It's Unbelievable': Shutdown Of Philippines' Major Broadcaster Worries Many

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The government has also jailed thousands of suspected violators and protesters of a lockdown to contain the rapid spread of the coronavirus.

Attorney Colmenares says, anti-lockdown protesters and violators "are afraid" that putting more power in the hands of police and President Duterte would "triple or quadruple" the arrests.

The new law replaces the 2007 Human Security Act, which security specialist Sidney Jones says was "one of the worst anti-terror laws that was ever passed because it had so many safeguards that it was never used or almost never used."

In the old law, authorities were fined $10,000 for every day a suspect was illegally detained. The new law eliminates that.

But analysts and rights advocates say they're concerned about how Duterte will use the new one.

Countries such as Egypt and Turkey have illustrated how governments led by populists, like Duterte, are using anti-terrorism laws to infringe on civil liberties and consolidate power, according to the Carnegie Endowment's Sobel.

"To me the Philippines is extremely emblematic of that. [Duterte's] firebrand type of speech helped him get elected and for a very long time he's been very popular," Sobel says, "and he's used that to erode civilian checks and balances."

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The Philippines’ anti-terror bill is poised to cause more terror

The government needs to accept that there are no shortcuts to peace and retract the bill.

As the world is plagued by COVID-19, an impending anti-terrorism bill is creating more fear in the Philippines.

Recently passed by Congress , the bill is set to be signed into law by President Rodrigo Duterte. If this happens, the bill will not only suppress the fundamental rights and freedoms of Filipinos, it will also terrorise the same conflict-affected communities it seeks to protect, as it undoes decades of peacebuilding work.

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Despite protests against the bill and mounting calls to provide more time for deliberations, Congress has quietly fast-tracked its passage while the rest of the country braced for the impact of COVID-19. The bill will allow for a lengthened period of warrantless detention and expanded surveillance of those law enforcement deems suspicious. It will also remove stiff penalties for wrongful detention.  

Most importantly, the bill carries a vague definition of “terrorism” that offers little distinction between organisations that commit acts of terror and revolutionary armed movements, which is important for those doing mediation among warring parties. The bill will provide law enforcers with broad powers to determine what constitutes a “terrorist”, shifting the burden of proof to suspected individuals and organisations. This is not only a threat to dissent and democracy, but also to peace.

Threat to peace in Mindanao

For more than half a century, the Philippine government has been trying to quell secessionist and communist armed movements in the country.

Bangsamoro, an autonomous region in the south of the Philippines, is currently in transition after decades of fighting between the government and the Moro Islamic Liberation Front. While much remains to be done, significant strides have been taken , with a transitional regional government installed last year and the decommissioning of combatants and arms under way. These gains have been made possible primarily by the peace talks and reconciliation processes.

The ill-advised and shortsighted fear of the ISIL (ISIS) armed group taking root in Mindanao, and the increased framing of the communist armed movements as “terrorist”, distract the government from seeing the gains of dialogue and peacebuilding.

The threat of terrorism is real, but it is not the main threat to peace.

In fact, militaristic approaches to counterterrorism have caused the most suffering and displacements, prompted  breakdowns in ongoing peace processes , and given birth to more aggressive splinter groups like the Abu Sayyaf, Bangsamoro Islamic Freedom Fighters, and Maute Group.

Insensitivity to the local context and the peace process in prioritising fighting terrorists in Mamasapano in 2015 and Marawi in 2017 delayed the passage of the Bangsamoro Basic Law and undermined reconciliation across communities in the country. These should not be forgotten, and should not be repeated.

Opening old wounds

Due to a long history of discrimination, the Moro and Muslim minorities in the Philippines are often most affected not only by terrorist attacks but by harassment and warrantless arrests packaged as “counterterrorism”.

This profiling of Muslims as violent “terrorists” continues to this day. In January, it was discovered that the Manila Police District was collating information about Muslim youth and students in the National Capital Region for its “ preventing violent extremism” initiatives .

Two months before, in November 2019, the police barged into the office of a long-established Mindanao-based peacebuilding organisation , without a warrant, checked the living quarters, and inspected the bags of young Moros from Marawi who were attending a psychosocial support training.

Being a woman while being both Moro and Muslim adds another layer of vulnerability, especially with the heightened visibility that comes with wearing a headscarf. Women widowed by war and children orphaned by conflict are also disproportionately affected by counterterrorism that narrowly sees them as vulnerable to being recruited into terrorism, instead of partners who can inform policies for change.

This bill will undermine efforts at reconciliation, as it will make it easier to target Muslims and open old wounds anew.

Ending or escalating the communist insurgency?

The military generals clearly see the impending anti-terrorism bill as a way to “end” the world’s oldest existing communist insurgency. But the bill is more likely to reignite war and bring further insecurity.

Following the termination of the peace negotiations between the government, the Communist Party of the Philippines (CPP), the New People’s Army (NPA) and the National Democratic Front of the Philippines in 2017, the government has since branded the CPP-NPA as “terrorist” and filed a petition seeking to declare them terrorist organisations under the Human Security Act, the current counterterrorism law. Following delayed progress through the courts, the government has taken a new tack: change the law directly. Thus, the Anti Terror Bill.

The argument about whether the CPP-NPA is a terrorist organisation or a revolutionary movement is fraught with a lot of biases, and a long, violent history between the communist armed movement and the military. What is clear is that the impending declaration of the CPP-NPA as terrorist organisations will impede any future peace talks, and escalate violence and displacement in communities.

As lessons have not been learned, the military should be reminded that the CPP-NPA was at its strongest under the martial law regime of the dictator Ferdinand Marcos. It is not activism that pushes communities towards violence. Rather, it is crackdowns on nonviolent civic action that will push communities to lose trust in government and take alternative routes for affecting change.

‘Activism is not terrorism’

The government assures the public that crackdowns on activists will not happen under the guise of counterterrorism, but in the same breath the Speaker of the House tells activists to “not allow terrorists to hide within [their] ranks.” This statement itself is telling of the government’s narrow and misinformed mindset about activism and terror – that those who are radicalised through activism will participate in armed rebellions and, therefore, to prevent “violent extremism” the state should stop “radicalisation” made possible through activism.  

Given this bias, and the weak intelligence capacity of law enforcers, the bill will crush progressive organisations and student activists who the state perceives are communist fronts; mediators who are perceived as communist sympathisers; and Indigenous people who are perceived as the main targets of recruitment by the NPA.  

These groups are already being “red-tagged” or wrongly targeted for alleged links with the CPP-NPA .  Even without the new law and under the martial law in place until last year, young Indigenous people who work on peacebuilding in Western Mindanao were reportedly wrongly included in the military’s “terrorist lists,” and asked to show themselves to law enforcers and prove they are not linked with the NPA. As the Senate president admitted, there is no need for martial law once this bill becomes law.

The looming anti-terror law will assume rather than fairly test the guilt of civilians, as law enforcers will have free reign to arrest and detain individuals based on mere suspicion. This is both unconstitutional and dangerous.

No shortcuts to peace

If implemented, the new anti-terrorism bill will not only impede our ability as peacebuilders and human rights defenders to bridge divides or raise the alarm when atrocities occur. It will also put our lives and limbs at risk. It will undo years of peacebuilding and further devastate the communities worst affected by terror. 

If it is sincere in its “ whole-of-nation approach” to peacebuilding , the government must retract the bill, re-open deliberations and listen to a wide range of voices across society, especially the voices of those who have borne the brunt of both terrorist violence and abusive counterterror laws.  It  must heed the lessons from community leaders and peacebuilders. We need a policy that addresses the underlying roots of terrorism, and that prevents further distrust, injustice and escalations in violence.  

Yet as I write this, trust in the government is also under threat. What is left of our democracy is under threat. Peace is under threat.

It is our collective duty to end violence against civilian communities. For this same reason, we cannot take shortcuts to peace.

This rushed and unrestrained anti-terror bill will cause terror – and it will come from the state.

The views expressed in this article are the authors’ own and do not necessarily reflect Al Jazeera’s editorial stance.

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The Philippines' Anti-Terrorism Act of 2020: Five things to know

Legislation already on Duterte's desk would give the president dramatic powers

MANILA -- Days after being marked "urgent" by President Rodrigo Duterte, the Philippines' House of Representatives last week approved the Anti-Terrorism Act of 2020, adopting the Senate's version, which was passed in February.

The bill has triggered online and street protests even as community quarantine restrictions are in place due to the coronavirus outbreak. A multisectoral backlash has also ensued, but supporters of the bill are pressing on.

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The Anti-Terrorism Law: A law against terrorists, or a terrifying law?

Republic Act (RA) 11479 or the Anti-Terrorism Act (ATA) of 2020 is different things to different people--and there lies the difficulty.

The statute's title clearly states "anti-terrorism," but the law itself terrifies a lot of people.

There are important nuances that must be discussed, but we must first go back to the beginning.

The Anti-Terrorism Bill was first pursued during the previous 17th Congress as a replacement to the Human Security Act of 2007, but it didn't prosper.

Then, in early June during the current 18th Congress and amid the pandemic, Malacañang certified the measure as urgent, with Presidential Spokesperson Harry Roque saying later that month that "Terrorists have not stopped launching attacks even if we are grappling with COVID-19."

By July 3, President Duterte had signed the controversial measure into law.

The first of 27 petitions

But less than 24 hours later--the ink of Duterte's signature barely dry--a group headed by lawyer Howard Calleja and former Education Secretary Armin Luistro electronically filed a petition challenging various provisions of the much-criticized law.

As of this writing, the Supreme Court has received a total of 27 petitions filed by representatives of nearly all sectors of society.

Expanded definition of terrorism

The law's purpose is to prevent, prohibit, and penalize terrorism in the country in a way that the Human Security Act supposedly failed to do.

It will do this by providing authorities with an expanded definition of terrorism, on top of the creation of the Anti-Terrorism Council (ATC), among other provisions.

ATA allows the detention of suspects without a judicial warrant of arrest for 14 days, which can be extended by 10 more days. The same can be placed under surveillance for 60 days, which can also be extended by up to 30 days, by the police or military.

Bayan Muna Party-List Rep. Carlos Zarate and Albay 1st district Rep. Edcel Lagman--who are behind two separate petitions before the High Court--have both cast aspersions on these provisions, calling them unconstitutional and outright dangerous.

"On the pretext of amending the Human Security Act of 2007 to make it more effective in the fight against terrorism, this new anti-terror law has expanded and overly broadened the definition of terrorism to make it easier for authorities to declare legitimate acts of expression, collective action, and dissent protected by the Constitution as terrorism," claimed Zarate on June 4, a day after the measure gained final approval in the House of Representatives.

Not against suppression of terrorism

In his counter-speech to President Duterte's State of the Nation Address (SoNA) last July 28, opposition congressman Lagman said: "Those of us opposing the Anti-Terror Act are not against the suppression of terrorism. What we are protesting against is using the fear of terrorism as a pretext to curtail civil liberties."

Lagman said this fear was "validated" when newly-installed Armed Forces of the Philippines (AFP) Chief of Staff Lt. Gen. Gilbert Gapay said last week that the Implementing Rules and Regulations (IRR) of ATA would be used to regulate social media.

"The Gapay statement extends the infringement of free speech to social media in general despite the absence of a specific provision in the ATA on regulating the Internet platform. The inclusion of the regulation of social media as proposed by Gapay in the IRR of the ATA does not have any legal basis because the IRR cannot modify or amend the law," Lagman said.

Petitioners raise numerous legal arguments

The SC petitioners raised numerous legal arguments, sought the repeal of the entire law or deletion of certain provisions and called for a temporary or permanent injunction of its implementation.

However, a common plea bonded the petition – that is the prayer asking SC magistrates to strike down the law, in part or in whole, for its unconstitutionality.

The bevy of petitioners included former Vice President Jejomar Binay; retired Supreme Court Justices Antonio Carpio and Conchita Carpio Morales, Senators Leila De Lima and Francis Pangilinan, Reps. Edcel Lagman and Kit Belmonte; the Makabayan bloc composed of six partylist solons and former Sen. Rene A.V.Saguisag; former Comelec Chairman Christian Monsod and Ateneo Human Rights Center lawyer Felicitas Arroyo. Petitioners from the academe included Dean Mel Sta. Maria and law professors of the Far Eastern University; former Dean Pacifico Agabin of the University of the Philippines College of Law; Dean Anna Maria Abad of the Adamson University College of Law; JV Bautista from the John Wesley School of Law ; Rose Liza-Eisma-Osorio of the University of Cebu school of Law and Dean Maria Soledad Deriquito of the Lyceum School of Law. Indigenous peoples were also opposed to the perceived unconstitutionality of the law. They were represented by Beverly Longid, of the Kabribu, Windel Bolinget of the Cordillera People’s Alliance; Samira Gutoc, Ako Bakwit; Drieza Liningding of Moro Consensus Group, among others. Leaders of various faiths called on the High Court to throw out the law. Among them are Bishop Broderick Pabillo of the Archdiocese of Mania; Bishop Normal Marigza, United Church of Christ in the Philippines; Rev. Rex Reyes, Episcopal Church in the Philippines; Dr. Aldrin Penamora of the Philippine Council of Evangelical Churches and Bishop Gerardo Alminaza of the Roman Catholic Dioceses of San Carlos City.

Sections sought to be declared ‘unconstitutional’ 

Sought to be declared unconstitutional were Sections 4,5,6,7, 8, 9, 10, 11, 12 (b), 25, 26, 27 and 29 of RA 11479. These provisions contain the definition of terrorism (Section 4) and acts to be penalized (Sections 5-12), which petitioners assailed for being “vague and violative of due process of the law.”

Carpio and Morales noted that while Section 4 provides that terrorism does not include advocacy, protest, dissent, stoppage of work, industrial or mass action and other similar exercises of civil and political rights, the qualifier have been rendered vague by the succeeding phrase “which are not intended to cause death or serious physical harm to a person, to endanger a person’s life or to create serious risk to public safety.”

Read the law — Cayetano

As for the other side of the fence, those who have argued in favor of ATA have a common message: read the law, and relax.

“Basahin natin before we criticize, because ang daling sabihin eh (na may) repression, wala ng democracy, draconian (Let's read it before we criticize because it's easy to say that there is repression, there is no more democracy, that it is draconian)," House Speaker Alan Peter Cayetano said last June 5.

Referring to terrorists, the Speaker said: "The enemy also evolves, becoming more fierce, determined, and innovative in their efforts to destroy and kill people."

But in case there would be abuses to the law, Cayetano guaranteed that it would be amended. This will take time, of course.

Include section dedicated to accountability - Nograles

Another supporter of RA 11479, Puwersa ng Bayaning Atleta (PBA) Party-list Rep. Jericho Nograles, proposed on June 21 to include in the IRR a whole section dedicated to the accountability of public officers. In that section, Nograles batted for the automatic filing of criminal, administrative and civil cases against public officers who abuse their discretion in carrying out anti-terrorism operations.

“The safeguards in the law must be clear in the IRR to be very sure that the anti-terror law will only be used against terrorists,” the solon stresed.

Safeguards to prevent abuse - Torres-Gomez

Meanwhile, these viral remarks from pro ATA-solon, Leyte 4th District Rep. Lucy Torres-Gomez also lit up both social and traditional media: "It's not a valid reason to reject needed legislation like the anti-terrorism bill because theoretically speaking, all laws can be abused, even social welfare laws that are very benign and charitable they can be abused. That is why there are safeguards in place to prevent those abuses from happening."

"We have to read the bill with the right target in mind. This is a bill that aims to (bring) terrorists to justice, this isn't about making life difficult (for) activists," Torres-Gomez added.

Stronger law vs terrorism-financing- Biazon

Asked point-blank if he believes that the Philippines is now safer with the ATA, Muntinlupa lone district Rep. Ruffy Biazon said yes.

"Naging stronger yung batas natin pagdating sa terrorism-financing. That's the fuel of terrorism eh--paano ba sila nakakapagrecruit? Kasi may pera sila (We now have a stronger law to address terrorism-financing. That's the fuel of terrorism--how are they able to recruit? It's because they have the money)."

Unique position on the law

Biazon's position on the law is somewhat unique--he pushed for it during the 17th Congress, and again in the 18th Congress; during the House plenary vote, he voted "no" to the bill and withdrew his authorship after learning that the Senate version was to be adopted; despite this, he insists that the country needs ATA.

He noted one key detail that has been "lost in the public discourse"--the Philippines' gray-listing by the France-based Financial Action Task Force (FATF) should the country fail to upgrade its laws in response to terrorism. "That's one of the principal reasons for the law during our discussions in the 17th Congress. Kasi yung atin (Because our) financial system may (has) certain loopholes with regard to combating terrorism-financing. Ang consequence sa atin malalagay tayo sa gray list (We would be gray-listed) as a consequence," Biazon said.

Explaining this, he said, "We are seen as vulnerable to be used by terrorists in terrorism financing or money-laundering. So isa yun sa mabigat na (That was one of the important) reasons why we needed to update the Human Security Act."

"Unfortunately, ang focus ng mga discussions napunta doon sa issues raised ng mga oppositors--yung mga concern about freedom of expression, suppression ng speech, mga ganun eh. Na-limit yung discussion (the focus of the discussions went to the issues raised by the oppositors--the concern about freedom of expression, suppression ng speech, and the like. It limited the discussion)." (Benjamin Rosario, Ellson Quismorio)

ANTI TERRORISM AND HUMAN RIGHTS

‘If you’ve got nothing to hide, you have nothing to fear’, but a detailed analysis of the human rights cost of the fast-expanding security state all over the world suggests otherwise.

The New Normal

Governments have rejected the view that they should provide security so people can enjoy their rights, and adopted the view that they must restrict rights to provide security. Many countries have made it easier to invoke and extend states of emergency and other emergency measures; what should be exceptional and temporary powers have increasingly become permanently embedded in ordinary criminal law.

Overly broad definitions of terrorism are a big part of the problem. Because there is no universally agreed definition, states and international bodies have created their own. But in that process, definitions of terrorism have become increasingly vague, so that they can be arbitrarily applied, meaning law-abiding citizens can be subjected to unwarranted surveillance , administrative orders which restrict their liberties, intrusive searches, arbitrary arrests, red-tagging or even worse, extrajudicial executions. 

In the context of ‘countering terrorism’, states must ensure the respect of international human rights and humanitarian law. Currently, the implementing rules and regulations (IRR) of Republic Act 11479 or the Anti-Terrorism Act of 2020 in the Philippines is in violation of international standards on human rights and counter-terrorism.

The law risks granting further excessive powers to the Philippine executive, which has presided over serious human rights violations in the country under President Duterte. The Duterte administration continues to pursue its “ war on drugs ” despite the tens of thousands already killed by the police and by armed individuals. Attacks against human rights defenders and critics of the government – including activists, journalists, lawyers, church leaders, trade union leaders, and individuals and groups affiliated with the political left – have increased under a climate of impunity; they have repeatedly been ‘red-tagged’ and accused of being “terrorists” because of their perceived links to communist groups.

A disturbing picture is emerging in which unchecked powers are trampling freedoms we have all taken for granted.

The Act defines terrorism as:

• Engaging in acts intended to cause death or serious bodily injury to any person or endangers a person’s life;
• Engaging in acts intended to cause extensive damage or destruction to a government or public facility, public place, or private property;
• Engaging in acts intended to cause extensive interference with, damage, or destruction to critical infrastructure;
• Developing, manufacturing, possessing, acquiring, transporting, supplying, or using weapons; and
• Releasing dangerous substances or causing fire, floods or explosions when the purpose is to intimidate the general public, create an atmosphere to spread a message of fear, provoke or influence by intimidation the government or any international organization, seriously destabilize or destroy the fundamental political, economic, or social structures in the country, or create a public emergency or seriously undermine public safety

Under the law, persons who propose, incite, conspire, and participate in the planning, training, and facilitation an offence under the act, as well as those who provide support to ‘terrorists’ as defined under the act, or recruit members of a ‘terrorist organisation’, could face life imprisonment without parole.

The law also punishes the following offences with 12 years’ imprisonment:

• Threatening to commit ‘terrorism’
• Inciting others or proposing to commit ‘terrorism’
• Voluntarily and knowingly joining any ‘terrorist group’
• Acting as an accessory in the commission of ‘terrorism’

The law allows suspects to be detained without a judicial warrant of arrest for 14 days and can be extended by 10 more days, and placed under surveillance for 60 days, that can also be extended by up to 30 days, by the police or military.

End attacks against indigenous peoples

Irr further weaponize anti-terror law.

This Act was passed by the Senate of the Philippines as Senate Bill No. 1083 on February 26,  2020, and adopted by the House of Representatives as an amendment to House Bill No. 6875 on June 5, 2020, respectively.

Approved: JUL 03 2020

(SGD.)  RODRIGO ROA DUTERTE President of the Philippines

Protecting Individual Privacy in the Struggle Against Terrorists: A Framework for Program Assessment (2008)

Chapter: 3 conclusions and recommendations, 3 conclusions and recommendations, 3.1 basic premises.

The committee’s work was informed by a number of basic premises. These premises framed the committee’s perspective in developing this report, and they can be regarded as the assumptions underlying the committee’s analysis and conclusions. The committee recognizes that others may have their own analyses with different premises, and so for analytical rigor, it is helpful to lay out explicitly the assumptions of the committee.

Premise 1. The United States faces two real and serious threats from terrorists. The first is from terrorist acts themselves, which could cause mass casualties, severe economic loss, and social dislocation to U.S. society. The second is from the possibility of inappropriate or disproportionate responses to the terrorist threat that can do more damage to the fabric of society than terrorists would be likely to do.

The events of September 11, 2001, provided vivid proof of the damage that a determined terrorist group can inflict on U.S. society. All evidence to date suggests that the United States continues to be a prime target for such terrorist groups as Al Qaeda, and future terrorist attacks could cause

major casualties, severe economic loss, and social disruption. 1 The danger of future terrorist attacks on the United States is both real and serious.

At the same time, inappropriate or disproportionate responses to the terrorist threat also pose serious dangers to society. History demonstrates that measures taken in the name of improving national security, especially in response to new threats or crises, have often proven to be both ineffective and offensive to the nation’s values and traditions of liberty and justice. 2 So the danger of unsuitable responses to the terrorist threat is also real and serious.

Given the existence of a real and serious terrorist threat, it is a reasonable public policy goal to focus on preventing attacks before they occur—a goal that requires detecting the planning for such attacks prior to their execution. Given the possibility of inappropriate or disproportionate responses, it is also necessary that programs intended to prevent terrorist attacks be developed and operated without undue compromises of privacy.

Premise 2. The terrorist threat to the United States, serious and real though it is, does not justify government authorities conducting activities or operations that contravene existing law.

The longevity of the United States as a stable political entity is rooted in large measure in the respect that government authorities have had for the rule of law. Regardless of the merits or inadequacies of any legal regime, government authorities are bound by its requirements until the legal regime is changed, and, in the long term, public confidence and trust in government depend heavily on a belief that the government is indeed adhering to the laws of the land. The premises above would not change even if the United States were facing exigent circumstances. If existing legal authorities (including any emergency action provisions, of which there are many) are inadequate or unclear to deal with a given situation

or contingency, government authorities should seek to change the law rather than to circumvent or disobey it.

A willingness of U.S. government authorities to circumvent or disobey the law in times of emergency is not unprecedented. For example, recently declassified Central Intelligence Agency (CIA) documents indicate widespread violations of the agency’s charter and applicable law in the 1960s and 1970s, during which time the CIA conducted surveillance operations on U.S. citizens under both Democratic and Republican presidents that were undertaken outside the agency’s charter. 3

The U.S. Congress has also changed laws that guaranteed confidentiality in order to gain access to individual information collected under guarantees. For example, Section 508 of the USA Patriot Act, passed in 2001, allows the U.S. Department of Justice (DOJ) to gain access to individual information originally collected by the National Center for Education Statistics under a pledge of confidentiality. In earlier times, the War Powers Act of 1942 retrospectively overrode the confidentiality provisions of the Census Bureau, and it is now known that bureau officials shared individually identifiable census information with other government agencies for the purposes of detaining foreign nationals. 4

Today, many laws provide statutory protection for privacy. Conforming to such protections is not only obligatory, but it also builds necessary discipline into counterterrorism efforts that serves other laudable purposes. By making the government stop and justify its effort to a senior official, a congressional committee, or a federal judge, warrant requirements and other privacy protections often help bring focus and precision to law enforcement and national security efforts. In point of fact, courts rarely refuse requests for judicial authorization to conduct surveillance. As government officials often note, one reason for these high success rates is the quality of internal decision making that the requirement to obtain judicial authorization requires.

Premise 3. Challenges to public safety and national security do not warrant fundamental changes in the level of privacy protection to which nonterrorists are entitled.

The United States is a strong nation for many reasons, not the least of which is its commitment to the rule of law, civil liberties, and respect

for diversity. Especially in times of challenge, it is important that this commitment remain strong and unwavering. New technological circumstances may necessitate an update of existing privacy laws and policy, but privacy and surveillance law already includes means of dealing with national security matters as well as criminal law investigations. As new technologies become more commonly used, these means will inevitably require extension and updating, but greater government access to private information does not trump the commitment to the bedrock civil liberties of the nation.

Note that the term “privacy” has multiple meanings depending on context and interpretation. Appendix L (“ The Science and Technology of Privacy Protection ”) explicates a technical definition of the term, and the term is often used in this report, as in everyday discourse, with a variety of informal meanings that are more or less consistent with the technical definition.

Premise 4. Exploitation of new science and technologies is an important dimension of national counterterrorism efforts.

Although the committee recognizes that other sciences and technologies are relevant as well, the terms of reference call for this report to focus on information technologies and behavioral surveillance techniques. The committee believes that when large amounts of information, personal and otherwise, are determined to be needed for the counterterrorist mission, the use of information technologies will be necessary and counterterrorist authorities will need to collect, manage, and analyze such information. Furthermore, it believes that behavioral surveillance techniques may have some potential for inferring intent from observed behavior if the underlying science proves sound—a capability that could be very useful in counterterrorist efforts “on the ground” if realized in the future.

Premise 5. To the extent reasonable and feasible, counterterrorist programs should be formulated to provide secondary benefits to the nation in other domains.

Counterterrorism programs are often expensive and controversial. In some cases, however, a small additional expenditure or programmatic adjustment may enable them to provide benefits that go beyond their role in preventing terrorism. Thus, they would be useful to the nation even if terror attacks do not occur. For example, hospital emergency reporting systems can improve medical care by prompt reporting of influenza, food poisoning, or other health problems, as well as alerting officials of bioterrorist and chemical attacks.

At the same time, policy makers must be aware of the phenomenon of “statutory mission creep”—in which the goals and missions of a program are expanded explicitly as the result of a specific policy action, such as congressional amendment of an existing law—and avoid its snares. In some instances, such as hospital emergency reporting systems, privacy interests may not be seriously compromised by their application to multiple missions. But in others, such as the use of systems designed for screening terrorists to identify ordinary criminals, privacy interests may be deeply implicated because of the vast and voluminous new data sets that must be brought to bear on the expanded mission. Mission creep may also go beyond the original understandings of policy makers regarding the scope and nature of a program that they initially approve, and thus effectively circumvent careful scrutiny. In some cases, a sufficient amount of mission creep may even result in a program whose operation is not strictly legal.

3.2 CONCLUSIONS REGARDING PRIVACY

The rich digital record that is made of people’s lives today provides many benefits to most people in the course of everyday life. Such data may also have utility for counterterrorist and law enforcement efforts. However, the use of such data for these purposes also raises concerns about the protection of privacy and civil liberties. Improperly used, programs that do not explicitly protect the rights of innocent individuals are likely to create second-class citizens whose freedoms to travel, engage in commercial transactions, communicate, and practice certain trades will be curtailed—and under some circumstances, they could even be improperly jailed.

3.2.1 Protecting Privacy

Conclusion 1. In the counterterrorism effort, some degree of privacy protection can be obtained through the use of a mix of technical and procedural mechanisms.

The primary goal of the nation’s counterterrorism effort is to prevent terrorist acts. In such an effort, identification of terrorists before they act becomes an important task, one that requires the accurate collection and analysis of their personal information. However, an imperfect understanding of which characteristics to search for, not to mention imperfect and inaccurate data, will necessarily draw unwarranted attention to many innocent individuals.

Thus, records containing personal information of terrorists cannot be

examined without violating the privacy of others, and so absolute privacy protection—in the sense that the privacy of nonterrorists cannot be compromised—is not possible if terrorists are to be identified.

This technical reality does not preclude putting into place strong mechanisms that provide substantial privacy protection. In particular, restrictions on the use of personal information ensure that innocent individuals are strongly protected during the examination of their personal information, and strong and vigorous oversight and audit mechanisms can help to ensure that these restrictions are obeyed.

How much privacy protection is afforded by technical and procedural mechanisms depends on critical design features of both the technology and the organization that uses it. Two examples of relevant technical mechanisms are encryption of all data transports to protect against accidental loss or compromise and individually logged 5 audit records that retain details of all queries, including those made by fully authorized individuals to protect against unauthorized use. 6 But the mere presence of such mechanisms does not ensure that they will be used, and such mechanisms should be regarded as one enabler—one set of necessary but not sufficient tools—for the robust independent program oversight described in Recommendation 1c below.

Relevant procedural mechanisms include restrictions on data collection and restrictions on use. In general, such mechanisms govern important dimensions of information collection and use, including an explication of what data are collected, whether collection is done openly or covertly, how widely the data are disseminated, how long they are retained, the decisions for which they are used, whether the processing is

performed by computer or human, and who has the right to grant permissions for subsequent uses.

Historically, privacy from government intrusion has been protected by limiting what information the government can collect: voice conversations collected through wiretapping, e-mail collected through access to stored data (authorized by the Electronic Communications Privacy Act, passed in 1986 and codified as 18 U.S.C. 2510), among others. However, in many cases today, the data in question have already been collected and access to them, under the third-party business records doctrine, will be readily granted with few strings attached. As a result, there is great potential for privacy intrusion arising from analysis of data that are accessible to government investigators with little or no restriction or oversight. In other words, powerful investigative techniques with significant privacy impact proceed in full compliance with existing law—but with significant unanswered privacy questions and associated concerns about data quality.

Analytical techniques that may be justified for the purpose of national security or counterterrorism investigations, even given their potential power for privacy intrusion, must come with assurances that the inferences drawn against an individual will not then be used for normal domestic criminal law enforcement purposes. Hence, what is called for, in addition to procedural safeguards for data quality, are usage limitations that provide for full exploitation on new investigative tools when needed (and justified) for national security purposes, but that prevent those same inferences from being used in criminal law enforcement activity.

An example—for illustration only—of the latter is the use of personal data for airline passenger screening. Privacy advocates have often expressed concerns that the government use of large-scale databases to identify passengers who pose a potential risk to the safety of an airplane could turn into far-reaching enforcement mechanisms for all manner of offenses, such as overdue tax bills or child support payments. One way of dealing with this privacy concern would be to apply a usage-limiting privacy rule that allows the use of databases for the purpose of counterterrorism but prohibits the use of these same databases and analysis for domestic law enforcement. Those suspicious of government intentions are likely to find a rule limiting usage rather less comforting than a rule limiting collection, out of concern that government authorities will find it easier to violate a rule limiting usage than a rule limiting collection. Nevertheless, well-designed and diligently enforced auditing and oversight processes may help over time to provide reassurance that the rule is being followed as well as to provide some actual protection for individuals.

Finally, in some situations, improving citizen privacy can have the

result of improving their security and vice versa. For example, improvements in the quality of data (i.e., more complete, more accurate data) used in identifying potential terrorists are likely to increase security by enhancing the effectiveness of information-based programs to identify terrorists and to decrease the adverse consequences that may occur due to confidentiality violations for the vast majority of innocent individuals. In addition, strong audit controls that record the details of all accesses to sensitive personal information serve both to protect the privacy of individuals and to reduce barriers to information sharing between agencies or analysts. (Agencies or analysts are often reluctant to share information, even among themselves, because they feel a need to protect sources and methods, and audit controls that limit information access provide a greater degree of reassurance that sensitive information will not be improperly distributed.)

Conclusion 2. Data quality is a major issue in the protection of the privacy of nonterrorists.

As noted in Chapter 1 , the issue of data quality arises internally as a result of measurement errors within databases and also as a consequence of efforts to link data or records across databases in the absence of clear, unique identifiers. Sharing personal information across agencies, even with “names” attached, offers no assurances that the linked data are sufficiently accurate for counterterrorism purposes; indeed, there are no metrics for accuracy that appear to be systematically used to assess such linking efforts.

Data of poor quality severely limit the value of data mining in a number of ways. First, the actual characteristics of individuals are often collected in error for a wide array of reasons, including definitional problems, identify theft, and misresponse on surveys.

These errors could obviously result in individuals being inaccurately represented by data mining algorithms as a threat when they are not (with the consequence that personal and private information about them might be inappropriately released for wider scrutiny). Second, poor data quality can be amplified during file matching, resulting in the erroneous merging of information for different individuals into a single file. Again, the results can be improper treatment of individuals as terrorist threats, but here the error is compounded, since entire clusters of information are now in error with respect to the individual who is linked to the information in the merged file.

Such problems are likely to be quite common and could greatly limit the utility of data mining methods used for counterterrorism. There are no obvious mechanisms for rectifying the current situation, other than col-

lecting similar information from multiple sources and using the duplicative nature of the information to correct inaccuracies. However, given that today the existence of alternate sources is relatively infrequent, correcting individual errors will be extraordinarily difficult.

3.2.2 Distinctions Between Capability and Intent

Conclusion 3. Inferences about intent and/or state of mind implicate privacy issues to a much greater degree than do assessments or determinations of capability.

Although it is true that capability and intent are both needed to pose a real threat, determining intent on the basis of external indicators is inherently a much more subjective enterprise than determining capability. Determining intent or state of mind is inherently an inferential process, usually based on indicators such as whom one talks to, what organizations one belongs to or supports, or what one reads or searches for online. Assessing capability is based on such indicators as purchase or other acquisition of suspect items, training, and so on. Recognizing that the distinction between capability and intent is sometimes unclear, it is nevertheless true that placing people under suspicion because of their associations and intellectual explorations is a step toward abhorrent government behavior, such as guilt by association and thought crime. This does not mean that government authorities should be categorically proscribed from examining indicators of intent under all circumstances—only that special precautions should be taken when such examination is deemed necessary.

3.3 CONCLUSIONS REGARDING THE ASSESSMENT OF COUNTERTERRORISM PROGRAMS

Conclusion 4. Program deployment and use must be based on criteria more demanding than “it’s better than doing nothing.”

In the aftermath of a disaster or terrorist incident, policy makers come under intense political pressure to respond with measures intended to prevent the event from occurring again. The policy impulse to do something (by which is usually meant something new) under these circumstances is understandable, but it is simply not true that doing something new is always better than doing nothing. Indeed, policy makers may deploy new information-based programs hastily, without a full consideration of (a) the actual usefulness of the program in distinguishing people or characteristic patterns of interest for follow-up from those not of inter-

est, (b) an assessment of the potential privacy impacts resulting from the use of the program, (c) the procedures and processes of the organization that will use the program, and (d) countermeasures that terrorists might use to foil the program.

The committee developed the framework presented in Chapter 2 to help decision makers determine the extent to which a program is effective in achieving its intended goals, compliant with the laws of the nation, and reflective of the values of society, especially with regard to the protection of data subjects’ privacy. This framework is intended to be applied by taking into account the organizational and human contexts into which any given program will be embedded as well as the countermeasures that terrorists might take to foil the program.

The framework is discussed in greater detail in Chapter 2 .

3.4 CONCLUSIONS REGARDING DATA MINING 7

3.4.1 policy and law regarding data mining.

Conclusion 5. The current policy regime does not adequately address violations of privacy that arise from information-based programs using advanced analytical techniques, such as state-of-the-art data mining and record linkage.

The current privacy policy regime was established prior to today’s world of broadband communications, networked computers, and enormous databases. In particular, it relies largely on limitations imposed on the collection and use of certain kinds of information, and it is essentially silent on the use of techniques that could be used to process and analyze already-collected information in ways that might compromise privacy.

For example, an activity for counterterrorist purposes, possibly a data mining activity, is likely to require the linking of data found in multiple databases. The literature on record linkage suggests that, even assuming the data found in any given database to be of high quality, the data derived from linkages (the “mosaic” consisting of the collection of linked data) are likely to be error-prone. Certainly, the better the quality of the individual lists, the fewer the errors that will be made in record linkage, but even with high-quality lists, the percentage of false matches and false nonmatches may still be uncomfortably high. In addition, it is also the case that certain data mining algorithms are less sensitive to record linkage errors as inputs, since they use redundant information in a way that can, at times, identify such errors and downweight or delete them. Again, even in the best circumstances, such problems are currently extremely

difficult to overcome. Error-prone data are, of course, both a threat to privacy (as innocent individuals are mistakenly associated with terrorist activity) and a threat to effectiveness (as terrorists are overlooked because they have been hidden by errors in the data that would have suggested a terrorist connection).

The committee also notes that the use of analytical techniques such as data mining is not limited to government purposes; private parties, including corporations, criminals, divorce lawyers, and private investigators, also have access to such techniques. The large-scale availability of data and advanced analytical techniques to private parties carries clear potential for abuses of various kinds that might lead to adverse consequences for some individuals, but a deep substantive examination of this issue is outside the primary focus of this report on government policy.

3.4.2 The Promise and Limitations of Data Mining

Chapter 1 (in Section 1.6.1 ) notes that data mining covers a wide variety of analytical approaches for using large databases for counterterrorist purposes, and in particular it should be regarded as being much broader than the common notion of a technology underlying automated terrorist identification.

Conclusion 6. Because data mining has proven to be valuable in private-sector applications, such as fraud detection, there is reason to explore its potential uses in countering terrorism. However, the problem of detecting and preempting a terrorist attack is vastly more difficult than problems addressed by such commercial applications.

As illustrated in Appendix H (“ Data Mining and Information Fusion ”), data mining has proven valuable in a number of private-sector applications. But the data used by analysts to track sales, banks to assess loan applications, credit card companies to detect fraud, and telephone companies to detect fraud are fundamentally different from counterterrorism data. For example, private-sector applications generally have access to a substantial amount of relatively complete and structured data. In some cases, their data are more accurate than government data, and, in others, large volumes of relevant data sometimes enable statistical techniques to compensate 8 to some extent for data of lower quality—thus, either way, reducing the data-cleaning effort required. In addition, a few false positives and false negatives are acceptable in private-sector

applications, because a few false positives can usually be cleared up by contact with clients without a significant draw on resources, and a few false negatives are tolerable. Ground truth—that is, knowledge of what is actually true that can be used to validate or verify a new measurement or technique—is available in many private-sector applications, a point that enables automated learning and refinement to take place. All of the relevant data are available—at once—in private-sector applications.

These attributes are very different in the counterterrorism domain. Ground truth is rarely available in tracking terrorists, in large part because terrorists and terrorist activity are rare. Data specifically associated with terrorists (targeted collection efforts) are sparse and mostly collected in unstructured form (free text, video, audio recordings). The availability of much of the relevant data depends on the specific nature of data collected earlier (e.g., information may be needed to obtain a search warrant that then leads to additional information). Data tracks of terrorists in commercial and government administrative databases (as contrasted with government intelligence databases) are co-mingled with enormously larger volumes of similar data associated with innocent individuals, and they are not in any way apparent or obvious from the fact of their collection—that is, it is generally unknown who is a terrorist in any such database. And links among records in databases of varying accuracy will tend to reflect accuracies characteristic of the most inaccurate of the databases involved.

Such differences are not described here to argue that data mining for counterterrorist applications is ipso facto unproductive or operationally useless. But the existence of these differences underscores the difficulty of productively applying data mining techniques in the counterterrorist domain.

Conclusion 7. The utility of pattern-based data mining is found primarily if not exclusively in its role in helping humans make better decisions about how to deploy scarce investigative resources, and action (such as arrest, search, denial of rights) should never be taken solely on the basis of a data mining result. Automated terrorist identification through data mining (or any other known methodology) is neither feasible as an objective nor desirable as a goal of technology development efforts.

As noted in Appendix H , subject-based data mining and pattern-based data mining have very different characteristics. The common example of pattern-based data mining is what might be called automated terrorist identification, by which is meant an automated process that examines large databases in search of any anomalous pattern that might indicate a terrorist plot in the making. Automated terrorist iden-

tification is not technically feasible because the notion of an anomalous pattern—in the absence of some well-defined ideas of what might constitute a threatening pattern—is likely to be associated with many more benign activities than terrorist activities. In this situation, the number of false leads is likely to exhaust any reasonable limit on investigative or analytical resources. For these reasons, the desirability of technology development efforts aimed at automated terrorist identification is highly questionable.

Other kinds of pattern-based data mining may be useful in helping analysts to search for known patterns of interest (i.e., when they have a basis for believing that such a pattern may signal terrorist intent). For example, analysts may determine that a pattern is suggestive of terrorist activity on the basis of historical experience. By searching for patterns known to be associated with (prior) terrorist incidents, it may well be possible to uncover tangible and useful evidence of similar terrorist plots in the making. The significance of uncovering such plots, even if they are similar to those that have occurred in the past, should not be underestimated. Terrorists learn from their past failures and successes, and to the extent that counterterrorist activities can force them to develop new—and unproven—approaches, they will be placed at a significant disadvantage.

Patterns of interest may also be identified by analysts thinking about sets of activities that are indicative of or associated with terrorist activity, even if there is no historical precedent for such associations. Under some circumstances, terrorists might well be limited in the options they might pursue in attacking a specific target. If so, it might be reasonable to search for patterns associated with the planning and execution of those options.

Still, patterns of interest identified using these techniques should be regarded as indicative rather than authoritative, and they should be used only to suggest when further investigation may be warranted rather than as definitive indications of terrorist activity. The committee believes that data mining routines should never be the sole arbiter prior to actions that have a substantial impact on people’s lives. Data mining should be used to help humans make decisions when the combination of human judgment and automated data mining results in better decisions than human judgment alone. But even when this is the case, it does not negate the fact that data mining routines, on their own, can make obvious mistakes in deciding the rankings and that the use of human judgment can dramatically reduce the rate of errors.

Conclusion 8. Although systems that support analysts in the identification of terrorists can be designed with features and functionality that enhance privacy

protection without significant loss to their primary mission, privacy-preserving examination of individually identifiable records is fundamentally a contradiction in terms.

Systems can often be designed in ways that enhance privacy without compromising their primary mission. For example, in searching for a weapon at a checkpoint, a scanner might generate anatomically correct images of a person’s body in graphic detail. Since what is of interest is not those images but rather the presence or absence of weapons, a system could be designed to detect the presence or absence of a weapon in a particular scan and that fact (presence or absence) reported rather than the image itself. Procedural protections could also be put into place: for example, an individual might be given the choice of going through an imaging scanner or undergoing a pat-down search. (Note also that a different and broader set of privacy implications arises if images are stored for further use, as they may well be for system assessments.)

Nevertheless, in the absence of a near-perfect profile of a terrorist, it is not possible, even in principle, to somehow examine the records of an individual (who might or might not be a terrorist) but to expose those records only if he or she actually is a terrorist. (A profile of a terrorist is intended to enable the sorting of individuals into those who match the profile and those who do not. If the profile is perfect, and the data contained in individual records are entirely accurate, all of those who match can be regarded with certainty as terrorists and all of those who do not match can be regarded with certainty as nonterrorists. In practice, profiles are never perfect and data are not entirely accurate, and so the notion of degrees of match is much more relevant than the notion of simply match or nonmatch.)

As a result, any realistic system examining databases containing information about terrorists will bring a mix of terrorists and nonterrorists to the attention of analysts, who will decide whether these individuals warrant further investigation. “Further investigation” in this nonroutine context necessarily results in an examination of the private personal information for these individuals, and it may result in tangible inconvenience and loss of various freedoms.

Conclusion 9. Research and development on data mining techniques using real population data are inherently invasive of privacy to some extent.

Much of data mining is focused on looking for patterns of behavior, characteristics, or transactions that are a priori plausible (i.e., plausible on the basis of expert judgment and experience) as possible indicators of terrorist activity. But these expert judgments about patterns of interest

must be empirically valid if they are to have significant operational utility, whereby validity is measured by a high true positive rate in identifying terrorist activity and a low false positive rate.

On one hand, a degree of empirical validity can be obtained through the use of synthetic and anonymized data or historical data. For example, large population databases can be seeded with data created to resemble data associated with real terrorist activity. Although such data are, by definition, based on assumptions about the nature and character of terrorist activities, the expert judgment of experienced counterterrorism analysts can provide such data with significant face validity. 9 By testing various algorithms in this environment, the simulated terrorist signatures provide a measure of ground truth against which various data mining approaches can be tested.

On the other hand and by definition, the use of synthetic data to simulate terrorist signatures does not provide real-world empirical validation. Only real data can be the basis for real-world empirical validation. Thus, another approach is to use historical data on terrorists. For example, a great deal is known today about the actual behavioral and activity signatures of the September 11, 2001, terrorists. Seeding large population databases with such data and requiring various algorithms to identify known terrorists provide a complementary approach to validation.

The use of historical data on terrorists is limited in one fundamental respect: it does not account for unprecedented events. But it is entirely reasonable to suggest that the successful application of proposed tools and techniques to known past events is a minimum and necessary (though not sufficient) metric of success.

Using real population databases—large databases filled with actual behavioral and activity data on actual individuals—presents a serious privacy issue. Almost all of these individuals will have no connection to terrorists, and the use of such data in this context means that their private personal information will indeed be compromised.

It is a policy decision as to whether the risks to privacy inherent in conducting research and development (R&D) on data mining techniques for counterterrorism using real population data are outweighed by the potential operational value of using those techniques. The committee

recommends that such R&D should be conducted on synthetic data (see Section 3.7 ), but if the decision is made to use real population data, the committee urges that policy makers face, acknowledge, and report on this issue explicitly.

3.5 CONCLUSIONS REGARDING DECEPTION DETECTION AND BEHAVIORAL SURVEILLANCE

Conclusion 10. Behavioral and physiological monitoring techniques might be able to play an important role in counterterrorism efforts when used to detect (a) anomalous states (individuals whose behavior and physiological states deviate from norms for a particular situation) and (b) patterns of activity with well-established links to underlying psychological states.

Scientific support for linkages between behavioral and physiological markers and mental state is strongest for elementary states (simple emotions, attentional processes, states of arousal, and cognitive processes), weak for more complex states (deception), and nonexistent for highly complex states (terrorist intent and beliefs). The status of the scientific evidence, the risk of false positives, and vulnerability to countermeasures argue for behavioral observation and physiological monitoring to be used at most as a preliminary screening method for identifying individuals who merit additional follow-up investigation. Indeed, there is no consensus in the relevant scientific community nor on the committee regarding whether any behavioral surveillance or physiological monitoring techniques are ready for use at all in the counterterrorist context given the present state of the science.

Conclusion 11. Further research is warranted for the laboratory development and refinement of methods for automated, remote, and rapid assessment of behavioral and physiological states that are anomalous for particular situations and for those that have well-established links to psychological states relevant to terrorist intent.

A number of techniques have been proposed for the machine-assisted detection of certain behavioral and physiological states. For example, advances in magnetic resonance imaging (MRI), electroencephalography (EEG), and other modern techniques have enabled measures of changes in brain activity associated with thoughts, feelings, and behaviors. 10 Research in image analysis has yielded improvements in machine recog-

nition of faces under a variety of circumstances (e.g., when a face is smiling or when it is frowning) and environments (e.g., in some nonlaboratory settings).

However, most of the work is still in the basic research stage, with much of the underlying science still to be validated or determined. If real-world utility of these techniques is to be realized, a number of issues—practical, technical, and fundamental—will have to be addressed, such as the limits to understanding, the largely unknown measurement validity of new technologies, the lack of standardization in the field, and the vulnerability to countermeasures. Public acceptability regarding the privacy implications of such techniques also remains to be demonstrated, especially if the resulting data are stored for unknown future uses or undefined lengths of time.

For example, the current state-of-the-art of functional MRI technology can identify changes in the hemodynamics in certain regions of the brain, thus signaling activity in those regions. But such results are not necessarily consistent across individuals (i.e., different areas in the brains of different individuals may be active under the same stimulus) or even in the same individual (i.e., a slightly different part of the brain may become active even in the same individual under the same stimulus). Certain regions of the brain may be active under a variety of different stimuli. In short, understanding of what these regions do is still primitive. Furthermore, even if simple associations can be made reliably in laboratory settings, this does not necessarily translate into usable technology in less controlled situations. Behavior of interest to detect, such as terrorist intent, occurs in an environment that is very different from the highly controlled behavioral science laboratory.

Conclusion 12. Technologies and techniques for behavioral observation have enormous potential for violating the reasonable expectations of privacy of individuals.

Because the inferential chain from behavioral observation to possible adverse judgment is both probabilistic and long, behavioral observation has enormous potential for violating the reasonable expectations of privacy of individuals. It would not be unreasonable to suppose that most individuals would be far less bothered and concerned by searches aimed at finding tangible objects that might be weapons or by queries aimed at authenticating their identity than by technologies and techniques whose use will inevitably force targeted individuals to explain and justify their mental and emotional states. Even if behavioral observation and physiological monitoring are used only as a preliminary screening methods for identifying individuals who merit additional follow-up investigation,

these individuals will be subject to suspicion that would not fall on others not so identified.

3.6 CONCLUSIONS REGARDING STATISTICAL AGENCIES

Conclusion 13. Census and survey data collected by the federal statistical agencies are not useful for terrorism prevention: such data have little or no content that would be useful for counterterrorism. The content and sampling fractions of household surveys as well as the lack of personal identifiers makes it highly unlikely that these data sets could be linked with any reasonable degree of precision to other databases of use in terrorism prevention.

The content of the data collected by the federal statistical agencies under the auspices of survey and census programs is generally inconsistent with the needs of counterterrorist activities, which require individually identifiable data. Even ignoring issues of access, the value of the data collected on national household or business surveys for terrorism prevention is minimal.

The reasons are several:

Censuses collect little information beyond name, address, and basic demographic data on age, sex, and race; such data are unlikely to be of much value for identifying terrorists or terrorist behavior.

Because a substantial proportion of individuals move frequently, the 10-year cycle of censuses means that the census information is unlikely to be timely, even in supplying current addresses.

The census long form, which has been collected on a sample basis (and its successor program, the American Community Survey, ACS) have more information but still very little that is directly relevant to predicting terrorist activity. Moreover, because these data are collected only for a sample, the probability that those of interest would be in the sample for a given year of the ACS is very slight, and, furthermore, the ability to match files without identifiers into other record systems would be limited. At best, these data might provide background information to provide a description of the socioeconomic make-up of a clustered group of blocks.

Other household surveys also collect little of direct relevance to terrorism prevention, and because they typically draw on much less than 1 percent of the population, the chances of identifying new information on an individual of interest are rather low.

Regarding establishment surveys, for terrorism detection one might be interested in businesses that have increased activity with people in

various parts of the world, but such information is not contained on federal statistical system business censuses and surveys.

A variety of surveys collect information relevant to crime prevention and public health. Data collections on criminal activity, such as the National Crime Victimization Survey and the Uniform Crime Reports, contain data on victims of crime, and they are most useful in identifying geographic areas in which such criminal activity seems to be prevalent. Health surveys, such as the National Health Information Survey, the National Health and Nutrition Examination Survey, and the National Ambulatory Medical Care Survey (largely collected by the National Center for Health Statistics) have value in broader public health programs, but they cannot provide timely information for purposes of biosurveillance or for addressing a bioterrorist attack.

In addition, statistical agencies often collect information under a promise of confidentiality, and the costs of altering or relaxing the rules for confidentiality protection are quite substantial. The quality of the data collected could be adversely affected as a consequence of respondents’ decreased willingness to cooperate. Statistical agencies typically collect information under a promise of confidentiality, and reneging on such officially provided assurances could substantially reduce the quality of the data collected, resulting in much poorer data on the state of the nation. 11

Aside from census and survey data, statistical agencies also hold considerable administrative data (which they have collected from other agencies); such data may be merged with data collected for statistical purposes and thus create the potential for data sets and databases that could at some point conceivably be useful for purposes of counterterrorism. While these derived data sets are currently protected by pledges of

confidentiality if any of the component data sets are so protected, some additional consideration needs to be given to such constructs and how to respond to requests for them from other government agencies.

3.7 RECOMMENDATIONS

In light of the conclusions presented above, the committee has two central recommendations. The first recommendation has subparts a-d.

3.7.1 Systematic Evaluation of Every Information- Based Counterterrorism Program

Recommendation 1. U.S. government agencies should be required to follow a systematic process (such as the one described in the frame work proposed in Chapter 2 ) to evaluate the effectiveness, lawfulness, and consistency with U.S. values of every information-based program, whether classified or unclassified, for detecting and countering terror ists before it can be deployed, and periodically thereafter.

Appendix J (“ The Total/Terrorist Information Awareness Program ”) recounts the story of the Total Information Awareness (TIA) program of the Defense Advanced Research Projects Agency (DARPA) and the intense controversy it engendered—which was a motivation for launching this study. The committee notes that in December 2003, the Department of Defense (DOD) inspector general’s (IG) audit of TIA concluded that the failure to consider privacy adequacy during the early development of TIA led DOD to “risk spending funds to develop systems that may not be either deployable or used to their fullest potential without costly revision.” 12 The DOD-IG report noted that this was particularly true with regard to the potential deployment of TIA for law enforcement: “DARPA need[ed] to consider how TIA will be used in terms of law enforcement to ensure that privacy is built into the developmental process.” 13 Greater consideration of how the technology might be used not only would have served privacy but also would probably have contributed to making TIA more useful.

The committee believes that a systematic approach to the development, procurement, and use of information-based counterterrorism programs is necessary if their full value is to be obtained. The framework

developed by the committee and provided in Chapter 2 is intended as a template for government decision makers to use in evaluating the effectiveness, appropriateness, and validity of every information-based counterterrorism program and system. The U.S. Department of Homeland Security (DHS)—and all agencies of the U.S. government with counterterrorism responsibilities—should adopt the framework described in Chapter 2 , or one similar to it, as a central element in their decision making about new deployments and existing programs in use. Failure to adopt such a systematic approach is likely to result in reduced operational effectiveness, wasted resources, privacy violations, mission creep, and diminished political support, not only for those programs but also for similar and perhaps for not-so-similar programs across the board.

To facilitate accountability, such evaluations (and the data on which they are based) should be made available to the broadest audience possible. Broad availability implies that these evaluations should be unclassified to the maximum extent possible—but even if evaluations are classified, they should still be performed and should be made available to those with the requisite clearances.

Such evaluations should be independent and comprehensive, and in particular they should assess both program effectiveness and privacy together, involving independent experts with the necessary technical, legal, and policy expertise to understand each of these areas and how interactions among them might affect the evaluation. For example, the meaning of privacy is in part technical, and an assessment of privacy cannot be left exclusively to individuals lacking such technical understanding.

Chapter 2 noted that much of the committee’s framework is not new and also that government decision makers have failed to implement many of the guidelines embedded in the framework even when they have been cognizant of them. It is the committee’s hope that by presenting to policy makers a comprehensive framework independent of any particular program, the pressures and exigencies associated with specific crises can be removed from the consideration and adoption of such a framework for application to all programs.

The committee also calls attention to four subrecommendations that derive from Recommendation 1.

Recommendation 1a. Periodically after a program has been operation ally deployed, and in particular before a program enters a new phase in its life cycle, policy makers should apply a framework such as the one proposed in Chapter 2 to the program before allowing it to continue operations or to proceed to the next phase.

A systematic approach such as the framework in Chapter 2 is not intended to be applied only once in the life cycle of any given program. As noted in Appendix D (“ The Life Cycle of Technology, Systems, and Programs ”), a program undergoes a number of different phases in its lifetime: identification of initial needs, research and technology development, systems development, and operational deployment and continual operational monitoring. Each of these phases provides a desirable opportunity for applying the framework to help decide whether and how the program should transition to the next phase. Each of the framework’s questions should still be asked. But the answers to those questions as well as the interpretation of the answers will vary depending on the phase. Such a review may result in a significant modification or even a cancellation of a given program.

The committee calls special attention to the importance of operational monitoring, whose purpose is to ensure that the initial deployed capability remains both effective at contributing to the mission for which it was designed and acceptable from a privacy standpoint. Often after initial deployment, the operational environment changes. Improved base technologies or entirely new technologies become available. Existing threat actors change their tactics, or entirely new threats emerge. Executive branch policies change, or new administrations take office. Analysts gain experience, or new analysts arrive. Interpretations of existing law change through court decisions, or new legislation is passed. Data-based models may change simply because more data have become available that change the parameters and estimates on which the models are based. Error rates may change for similar reasons. Because every program is necessarily embedded in this milieu, the net result is that successful programs are almost always dynamic, in that they evolve in response to such changing circumstances.

An evolved program is, by definition, not the same as the original program—and it is a fair question to ask whether the judgments made about any program in its original form would be valid for an evolved program. For these reasons, a policy regime is necessary that provides for periodic reassessment and reevaluation of a program after initial deployment, at the same time promoting and fostering necessary changes—whether technological, procedural, legal, ethical, or other.

Recommendation 1a is important to programs currently in existence—that is, programs in existence today, and especially programs that are operationally deployed today should be evaluated against the framework. To the best of the committee’s knowledge, no such evaluations have been performed for any data mining or deception detection programs in operation, although this is not to say that none have been done. If such evaluations have been performed, they should be made

available to policy makers (senior officials in the executive branch or the U.S. Congress), and if possible, the public as well. If not, they should be undertaken with all due speed. And if they cannot be performed without access to classified information, an independent group of experts with the requisite clearances should be chartered to perform such assessments.

Recommendation 1b. To protect the privacy of innocent people, the research and development of any information-based counterterrorism program should be conducted with synthetic population data. If and when a program meets the criteria for deployment in the committee’s illustrative framework described in Chapter 2 , it should be deployed only in a carefully phased manner, e.g., being field tested and evaluated at a modest number of sites before being scaled up for general use. At all stages of a phased deployment, data about individuals should be rigorously subjected to the full safeguards of the framework.

Almost by definition, technology in the R&D stage is nascent and unproven. Nascent and unproven technologies are not sufficiently robust or reliable to warrant risking the privacy of individuals—that is, the very uncertain (perhaps nonexistent) benefit that would be derived from their use does not justify the very real cost to privacy that would inevitably accompany their widespread use in operational settings. Thus, the committee advocates R&D based on synthetic population data whose use poses very little risk of violating the privacy of innocent individuals. In addition, the successful use of synthetic data in many fields, such as epidemiology, medicine, and chemistry, for testing methods provides another reason to explore its potential uses in counterterrorism.

The committee believes that realistic synthetic population data could probably be created along the lines originally suggested in Rubin and in Little and further developed by Fienberg et al. and Reiter, 14 for the specific purpose of providing the background against which terrorist signatures are sought. Furthermore, because it is difficult to create from entirely synthetic data large databases that are useful for testing and (partially) validating data mining techniques and algorithms, a partial substitute for entirely synthetic data is data derived from real population data in such a way that the individual identities of nonterrorists are masked

while preserving some of the important large-scale statistical properties of those data.

Using synthetic population data as the background, a measure of the utility of various data mining approaches can be obtained in R&D. Such results must be evaluated in the most rigorous and independent manner possible in order to determine if the program should move into deployment.

If the results are determined to be sufficiently promising (e.g., with sufficiently low false positive and false negative rates) that they offer significant operational capability, it is reasonable to apply the new capabilities to real data in an operational context. 15 But the change from synthetic to real data must be accompanied by a full array of operational safeguards that protect individuals from harm to their privacy, as suggested by the committee’s proposed framework. Put differently, if real data are to be used, they—and the individuals with whom they are associated—deserve the full benefit of the privacy protections associated with the program in question.

Transitioning to an operational context from R&D must also be done carefully and is best undertaken in small phases. The traditional approach to acquisition generally involves the deployment of operational capabilities in large blocks of capability (i.e., large functional components deployed on a wide scale). Experience indicates that this approach is often slow and cumbersome, and it increases technical, programmatic, and budgetary risks. The operational environment often changes significantly in the time between initial requirements specification and first deployment—thus, the capability may even be obsolete when it is first deployed. And deploying systems on a large scale before they are deployed on a small scale is almost always problematic, because small-scale operational trials are needed to shake out the inevitable bugs when R&D technologies meet the real world.

By contrast, phased deployment is based on a philosophy of “build-a-little, test-a-little, deploy-a-little.” Phased deployment recognizes that kinks and problems in the deployment of any new capability are inevitable, positing that by making small changes, system developers will be able to more easily identify and correct these problems than when everything changes all at once. Small changes are easier to reverse, should that become necessary. It also becomes feasible to test new capabilities offered by small changes in parallel with the baseline version, so that ground

truth provided by the baseline version can be used to validate the new capabilities when their domain of operation is the same.

The committee recognizes that, under this approach, operational capabilities will not have been subject to real-world empirical validation before deployment, although they will have had as much validation as possible with synthetic population data. And the phased deployment of privacy-sensitive capabilities reduces the likelihood of inappropriate or improper compromises of privacy from what they would have been under a more traditional acquisition model. 16

The approach recommended above (synthetic data before deployment, deployment only in measured phases) places a high premium on two actions. First, every effort must be made to create good synthetic data that are useful for testing the validity of machine-learning tools and are simultaneously very realistic. For synthetic terrorist data, both historical data and expert judgment play a role in developing signatures that might plausibly be associated with terrorist activity, and plausibility should be assessed through independent panels of judges without a vested interest in any given scenario. Such judges must also be trained in or experienced with evasion or obfuscation techniques. For synthetic population data, every use must be made of known techniques for confidentiality protection and statistical disclosure limitation 17 to reduce the likelihood that the privacy of individuals is compromised, and further research on the creation of better synthetic data to represent large-scale populations is certainly warranted.

Second, evaluation of R&D results must truly be independent and rigorous, with high standards of performance needed for a decision to deploy. As noted in Conclusion 4, the rule that “X is better than doing nothing” often drives deployment decisions, and, given the high potential costs to individual privacy of deployment, the benefits afforded by deployment must be more than marginal to warrant the potential cost.

Recommendation 1c. Any information-based counterterrorism program of the U.S. government should be subjected to robust, independent oversight of the operations of that program, a part of which would

entail a practice of using the same data mining technologies to “mine the miners and track the trackers.”

In practice, operational monitoring is generally the responsibility of the program managers and operational personnel. But as discussed in Appendix G (“ The Jurisprudence of Privacy Law and the Need for Independent Oversight ”), oversight is necessary to ensure that actual operations have been conducted in accordance with stated policies.

The reason is that, in many cases, decision makers formulate policies in order to balance competing imperatives. For example, the public demands both a high degree of effectiveness in countering terrorism and a high degree of privacy. Program administrators themselves face multiple challenges: motivating high performance, adhering to legal requirements, staying within budget, and so on. But if operational personnel adhere to some elements of a policy and not to others, the balance that decision makers intended to achieve will not be realized in practice.

The committee emphasizes that independent oversight is necessary to ensure that commitments to minimizing privacy intrusions embedded in policy statements are realized in practice. The reason is that losses of privacy are easy to discount under the pressure of daily operations, and those elements of policy intended to protect privacy are more likely to be ignored or compromised. Without effective oversight mechanisms in place, public trust is less likely to be forthcoming. In addition, oversight can support continuous improvement and guide administrators in making organizational change.

For example, program oversight is essential to ensure that those responsible for the program do not bypass procedures or technologies intended to protect privacy. Noncompliance with existing privacy-protecting laws, regulations, and best practices diminishes public support and creates an environment in which counterterrorism programs may be curtailed or eliminated. Indeed, even if shortcuts and bypasses increase effectiveness in a given case, in the long run scandals and public outcry about perceived abuses will reduce the political support for the programs or systems involved—and may deprive the nation of important tools useful in the counterterrorist mission. Even if a program is effective in the laboratory and expected to be so in the field, its deployment must be accompanied by strong technical and procedural safeguards to ensure that the privacy of individuals is not placed at undue risk.

Oversight is also needed to protect against abuse and mission creep. Experience and history indicate that in many programs that collect or use personal information, some individuals may violate safeguards intended to protect individual privacy. Hospital clerks have been known to exam-

ine the medical records of celebrities without having a legitimate reason for doing so, simply because they are curious. Police officers have been known to examine the records of individuals in motor vehicle information systems to learn about the personal lives of individuals with whom they interact in the course of daily business. And, of course, compromised insiders have been known to use the information systems of law enforcement and intelligence agencies to further nefarious ends.

The phenomenon of mission creep is illustrated by the Computer-Assisted Passenger Prescreening System II (CAPPS II) program, initially described in congressional testimony as an aviation security tool and not a law enforcement tool but which morphed in a few months to a system that would analyze information on persons “with [any] outstanding state or federal arrest warrants for crimes of violence.” 18

To guard against such practices, the committee advocates program oversight that mines the miners and tracks the trackers. That is, all operation and command histories and all accesses to data-based counterterrorism information systems should be logged on an individual basis, audited, and mined with the same technologies and the same zeal that are applied to combating terrorists. If, for example, such practices had been in place during Robert Hanssen’s tenure at the Federal Bureau of Investigation (FBI), his use of its computer systems for unauthorized purposes might have been discovered sooner.

Finally, the committee recognizes the phenomenon of statutory mission creep, as defined above in the discussion of Premise 5. It occurs, for example, because in responding to a crisis, policy makers will naturally focus on adapting existing programs and capabilities rather than creating new ones. On one hand, if successful, adaptation often promises to be less expensive and faster than creating a new program or capabilities from scratch. On the other hand, because an existing program is likely to be highly customized for specific purposes, adapting that program to serve other purposes effectively may prove difficult—perhaps even more difficult than creating a program from scratch. As importantly, adapting an existing program to new purposes may well be contrary to agreements and understandings established in order to initiate the original program in the first place.

The committee does not oppose expanding the goals and missions of a program under all circumstances. Nevertheless, it cautions that such expansion should not be undertaken hastily in response to crisis. In the committee’s view, following diligently the framework presented in Chapter 2 is an important step in exercising such caution.

Recommendation 1d. Counterterrorism programs should provide meaningful redress to any individuals inappropriately harmed by their operation.

Programs that are designed to balance competing interests (in the case of counterterrorism, collective security and individual privacy and civil liberties) will naturally be biased in one direction or another if their incentive/penalty structure is not designed to reflect this balance. The availability of redress to the individual harmed thus acts to promote the goal of compliance with stated policy—as does the operational oversight mentioned in Recommendation 1c—and to provide incentives for the government to improve the policies, technologies, and data underlying the operation of the program.

Although the committee makes no specific recommendation concerning the form of redress that is appropriate for any given privacy harm suffered by innocent individuals as the result of a counterterrorism program, it notes that many forms of redress are possible in principle, ranging from apology to monetary compensation. The most appropriate form of redress is likely to depend on the nature and purpose of the specific counterterrorism program involved. However, the committee believes that, at a minimum, an innocent individual should always be provided with at least an explicit acknowledgment of the harm suffered and an action that reduces the likelihood that such an incident will ever be repeated, such as correcting erroneous data that might have led to the harm. Note that responsibilities for correction should apply to the holder of erroneous data, regardless of whether the holder is the government or a third party.

The availability of redress might, in principle, enable terrorists to manipulate the system in order to increase their chances of remaining undetected. However, as noted in Item 7 of the committee’s framework on effectiveness, information-based programs should be robust and not easily circumvented by adversary countermeasures, and thus the possibility that terrorists might manipulate the system is not a sufficient argument against the idea of redress.

3.7.2 Periodic Review of U.S. Law, Policy, and Procedures for Protection of Privacy

Recommendation 2. The U.S. government should periodically review the nation’s laws, policies, and procedures that protect individuals’ private information for relevance and effectiveness in light of chang ing technologies and circumstances. In particular, Congress should reexamine existing law to consider how privacy should be protected in the context of information-based programs (e.g., data mining) for counterterrorism.

The technological environment in which policy is embedded is constantly changing. Although technological change is not new, the pace of technological change has dramatically increased in the digital age. As noted in Engaging Privacy and Information Technology in a Digital Age , advances in information technology make it easier and cheaper by orders of magnitude to gather, retain, and analyze information, and other trends have enabled access to new kinds of information that previously would have been next to impossible to gather about another individual. 19 Furthermore, new information technologies have eroded the privacy protection once provided through obscurity or the passage of time. Today, it is less expensive to store information electronically than to decide to get rid of it, and new and more powerful data mining techniques and technologies make it much easier to extract and identify personally identifiable patterns that were previously protected by the vast amounts of data “noise” around them.

The security environment is also constantly changing. New adversaries emerge, and counterterrorist efforts must account for the fact that new practices and procedures for organizing, training, planning, and acquiring resources may emerge as well. Most importantly, new attacks appear. The number of potential terrorist targets in the United States is large, 20 and

although the different types of attack on these targets may be limited, attacks might be executed in myriad ways.

As an example of a concern ripe for examination and possible action, the committee found common ground in the proposition that policy makers should seriously consider restrictions on how personal information is used in addition to restrictions on how records are collected and accessed. Usage restrictions could be an important and useful supplement to access and collection limitation rules in an era in which much of the personal information that can be the basis for privacy intrusion is already either publicly available or easily accessible on request without prior judicial oversight. Privacy protection in the form of information usage restrictions can provide a helpful tool that balances the need to use powerful investigative tools, such as data mining, for counterterrorism purposes and the imperative to regulate privacy intrusions of such techniques through accountable adherence to clearly stated privacy rules. ( Appendix G elaborates on this aspect of the recommendation.)

Such restrictions can serve an important function in helping to ensure that programs created to address a specific area stay focused on the problem that the programs were designed to address and in guarding against unauthorized or unconsidered expansion of government surveillance power. They also help to discourage mission creep, which often expands the set of purposes served by the program without explicit legislative authorization and into areas that are poorly matched by the original program’s structure and operation. An example of undesirable mission creep would be the use of personal data collected from the population acquired for counterterrorist purposes to uncover tax evaders or parents who have failed to make child support payments. This is not to say that finding such individuals is not a worthy social goal, but rather that the mismatch between such a goal and the intrusiveness of data collection measures for counterterrorist purposes is substantial indeed. Without clear legal rules defining the boundaries for use between counterterrorism and inappropriate law enforcement uses, debates over mission creep are likely to continue without constructive resolution.

A second example of a concern that may be ripe for legislative action involves the current legal uncertainty supporting private-sector liability for cooperation with government data mining programs. Such uncertainty creates real risk in the private sector, as indicated by the present variety of private lawsuits against telecommunications service providers, 21 and private-sector responsibilities and rights must be clarified along

with government powers and privacy protections. What exists today is a mix of law, regulation, and informal influence in which the legal rights and responsibilities of private-sector entities are highly uncertain and not well understood.

A coherent, comprehensive legal regime regulating information-intensive surveillance such as government data mining, would do much to reduce such uncertainty. As one example, such a regime might address the issue of liability limitation for private-sector data sources (database providers, etc.) that provide privacy-intrusive information to the government.

Without spelling out the precise scope and coverage of the comprehensive regime, the committee believes that to the extent that the government legally compels a private party to provide data or a private party otherwise complies with an apparently legal requirement to disclose information, it should not be subject to liability simply for the act of complying with the government compulsion or legal requirement. Any such legal protection should not extend to the content of the information it supplies, and the committee also believes that the regime should allow incentives for data providers to invest reasonable effort in ensuring the quality of the data they provide. Furthermore, they should provide effective legal remedies for those individuals who suffer harm as a result of provider negligence. Furthermore, the regime would necessarily preserve the ability of individuals to challenge the constitutionality of the underlying data access statute.

Listed below are other examples of how the adequacy of privacy-related law might be called into question by a changing environment ( Appendix F elaborates on these examples).

Conducting general searches. On one hand, the Fourth Amendment forbids general searches—that is, searches that are not limited as to the location of the search or the type of evidence the government is seeking—by requiring that all searches and seizures must be reasonable and that all warrants must state with particularity the item to be seized and the place to be searched. On the other hand, machine-aided searching of enormous digital transaction records is in some ways analogous to a general search. Such a search can be a dragnet that sweeps through millions or billions of records, often containing highly sensitive information. Much like a general search in colonial times was not limited to a particular person or place, a machine-aided search through digital databases can be very broad. How, if at all, should database searches be regulated by the Fourth Amendment or by statute?

A related issue is that the historical difficulty of physical access to ostensibly public information has provided a degree of privacy protection

for that information—what might be known as privacy through obscurity. But a search-enabled digital world erodes some of these previously inherent protections against invasions of privacy, changing the technological milieu that surrounds privacy jurisprudence.

Increased access to data; searches and surveillance of U.S. persons outside the United States. The Supreme Court has not yet addressed whether the Fourth Amendment applies to searches and surveillance for national security and intelligence purposes that involve U.S. persons 22 who are connected to a foreign power or that are conducted wholly outside the United States. 23 Lower courts, however, have found that there is an exception to the Fourth Amendment’s warrant requirement for searches conducted for intelligence purposes within the United States that involve only non-U.S. persons or agents of foreign powers. 24 The Supreme Court has yet to rule on this important issue, and Congress has not supplied any statutory language to fill the gap.

Third-party records. Two Supreme Court cases ( United States v. Miller , 1976, and Smith v. Maryland , 1979) 25 have established the precedent that there is no constitutionally based reasonable expectation of privacy for information held by a third party, and thus the government today has access unrestricted by the Fourth Amendment to private-sector records on every detail of how people live their lives. Today, these third-party transactional records are available to the government subject to a very low threshold—through subpoenas that can be written by almost any government agency without prior judicial oversight—and are one of the primary data feeds for a variety of counterterrorist data mining activities. Thus, the public policy response to privacy erosion as a result of data mining used with these records will have to address some combination of the scope of use for the data mining results, the legal standards for access to and use of transactional information, or both. 26 (See also Appendix G for

discussion of how usage limitations can fill gaps in current regulation of the confidentiality of third-party records.)

Electronic surveillance law. Today’s law regarding electronic surveillance is complex. Some of the complexity is due to the fact that the situations and circumstances in which electronic surveillance may be involved are highly varied, and policy makers have decided that different situations call for different regulations. But it is an open question as to whether these differences, noted and established in one particular set of circumstances, can be effectively maintained over time. Although there is broad agreement that today’s legal regime is not optimally aligned with the technological and circumstantial realities of the present, there is profound disagreement about whether the basic principles underlying today’s regime continue to be sound as well as in what directions changes to today’s regime ought to occur.

In making Recommendation 2, the committee intends the government’s reexamination of privacy law to cover the issues described above but not be limited to them. In short, Congress and the president should work together to ensure that the law is clear, appropriate, up to date, and responsive to real needs.

Greater clarity and coherence in the legal regime governing information-based programs would have many benefits, both for privacy protection and for the counterterrorist mission. It is perhaps obvious that greater clarity helps to protect privacy by eliminating what might be seen as loopholes in the law—ambiguities that can be exploited by well-meaning national security authorities, thereby overturning or circumventing the intent of previously established policy that balanced competing interests. But the benefits of greater clarity from the standpoint of improving the ability of the U.S. government to prosecute its counterterrorism responsibilities are less obvious and thus deserve some elaboration.

First and most importantly from this perspective, greater legal clarity would help to reduce public controversy over potentially important tools that might be used for counterterrorist purposes. Although many policy makers might wish that they had a free hand in pursuing the counterterrorist mission and that public debate and controversy would just go away, the reality is that public controversy does result when the government is seen as exploiting ambiguities and loopholes.

As discussed in Appendix I (“ Illustrative Government Data Mining Programs and Activity ”), a variety of government programs have been shut down, scaled back, delayed, or otherwise restricted over privacy considerations: TIA, CAPPS II for screening airline passengers, MATRIX (Multistate Anti-Terrorism Information Exchange) for linking law enforcement records across states with other government and private-sector

databases, and a number of data-sharing experiments between the U.S. government and various airlines. Public controversy about these efforts may have prematurely compromised counterterrorism tools that might have been useful. In addition, they have also made the government more wary of national security programs that involve data matching and made the private sector more reluctant to share personal information with the government in the future.

In this regard, this first rationale for greater clarity is consistent with the conclusion of the Technology and Privacy Advisory Committee: “[privacy] protections are essential so that the government can engage in appropriate data mining when necessary to fight terrorism and defend our nation. And we believe that those protections are needed to provide clear guidance to DOD personnel engaged in anti-terrorism activities.” 27

Second, greater legal clarity and coherence can enhance the effectiveness of certain information-based programs. For example, the Privacy Act of 1974 requires that personal data used by federal agencies be accurate, relevant, timely, and complete. On one hand, these requirements increase the likelihood that high-quality data are stored, thus enhancing the effectiveness of systems that use data subject to those requirements. On the other hand, both the FBI’s National Crime Information Center and the passenger screening database of the Transportation Security Administration have exemptions from some of these requirements; 28 to the extent that these exemptions result in lower-quality data, these systems are likely to perform less well.

Third, the absence of a clear legal framework is likely to have a profound effect on the innovation and research that are necessary to improve the accuracy and effectiveness of information-based programs. Such clarity is necessary to support the investment of financial, institutional, and human resources in often risky research that may not pay dividends for

decades. But that type of research is essential to counterterrorism efforts and to finding better ways of protecting privacy.

Finally, a clear and coherent legal framework will almost certainly be necessary to realize the potential of new technologies to fight terrorism. Because such technologies will operate in the political context of an American public concerned about privacy, the public—and congressional decision makers—will have to take measures that protect privacy when new technologies are deployed. All technological solutions will require a legal framework within which to operate, and there will always be gaps left by technological protections, which law will be essential to fill. Consequently, a lack of clarity in that framework may not only slow their development and deployment, as described above, but also make technological solutions entirely unworkable.

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All U.S. agencies with counterterrorism programs that collect or "mine" personal data -- such as phone records or Web sites visited -- should be required to evaluate the programs' effectiveness, lawfulness, and impacts on privacy. A framework is offered that agencies can use to evaluate such information-based programs, both classified and unclassified. The book urges Congress to re-examine existing privacy law to assess how privacy can be protected in current and future programs and recommends that any individuals harmed by violations of privacy be given a meaningful form of redress.

Two specific technologies are examined: data mining and behavioral surveillance. Regarding data mining, the book concludes that although these methods have been useful in the private sector for spotting consumer fraud, they are less helpful for counterterrorism because so little is known about what patterns indicate terrorist activity. Regarding behavioral surveillance in a counterterrorist context, the book concludes that although research and development on certain aspects of this topic are warranted, there is no scientific consensus on whether these techniques are ready for operational use at all in counterterrorism.

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[OPINION] Responding to the Anti-Terror Law from the United States

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This is AI generated summarization, which may have errors. For context, always refer to the full article.

RA 11479, or the Duterte regime’s Anti-Terror Law of 2020, took effect on midnight of July 18. Under this supposed national security law, Duterte will create an Anti-Terrorism council that can make warrantless arrests, freeze assets of suspects, and surveil suspects. Furthermore, as a result of the law’s vague definition of “terrorism,” the council would have the power to decide who is a terrorist. The long reach of the legislation also makes it potentially applicable to Filipinos abroad.

Through this law, Duterte fortifies his power by absorbing the functions granted to the judicial and legislative branches of the government. Sedition charges are now being filed against ordinary citizens critiquing the Duterte regime on social media. Duterte said that law-abiding citizens need not worry if they are not terrorists, but Duterte’s political machinery has expanded its energy from the vitriolic trolling of critics online, by broadening what the state perceives as “terror.”

The Commission on Human Rights reported on the difficulty in tracking down the sustained extrajudicial killings in the Philippines, especially within the militarized handling of the pandemic. Earlier this month, it was reported that there were 107 complaints on arrests and detention and 55 on extrajudicial killings. Authorities will also carry out house-to-house searches for people with or without COVID-19 symptoms, who will then be transferred to government-run isolation facilities. Government officers cited a Philippine law stating those refusing to cooperate may be fined or imprisoned. The house-to-house search that the state euphemistically calls “Oplan Kalinga,” kalinga meaning care, intimidates Filipinos seeking shelter from the pandemic in their own homes.

Intimidation occurs on a bigger scale, with the government striking at the media. Recently, the Manila Regional Trial Court found journalist Maria Ressa guilty of cyberlibel, in what critics believe was a politically motivated ruling. On July 10, 70 members of the Philippine Congress voted “no” on ABS-CBN’s appeal to renew their media franchise, affirming the spreading power of the Duterte regime. Our elders would remember the ABS-CBN shutdown during the Marcos dictatorship. This time, media censorship is even more staggering because of the display of complicity by state officials. The Philippines is already the 5 th most dangerous country in the world for journalists . The future is not looking bright in a situation that mixes impunity with complicity.

We have seen throughout Duterte’s presidency, and in particular in the last couple of months, a targeting of those that stand in the name of democratic freedoms and human rights. The recent arrests of activists such as those involved in a Global Pride March as well as Senator Bong Go’s deployment of the National Bureau of Investigation to look into social media criticisms of the senator are worrying signs that point to the potential abuses of the Anti-Terror Law. The Duterte government’s actions have shown that if you stand for a free press, if you oppose the government in any way, if you defend the human rights of others, you are treated as an enemy of the state. With such a record, it is no wonder why so many are worried that such a government would have the power to define who is a terrorist.

In this context, we ask two questions: What can we, in the diaspora, materially do? How are we to proceed, beyond the performative expressions of care, and beyond our nostalgic attachments to the islands? 

We might start with continuing to challenge complicities happening at our dinner tables. Our scholarship and energy could be directed inwards, recruiting our own family members as audiences of our own work and pushing back against the anti-human rights discourse that is circulated in our own intimate circle and homes. 

Another potential action is to contact our government representatives in the countries where we are and urge them to publicly oppose the Anti-Terror Law in the Philippines. In the US, over 50 representatives are currently publicly in opposition to the ATL, and it would certainly help to see more. Calls from US government leaders towards the Philippines are potentially irksome to the Duterte government, as we saw Presidential Spokesperson Harry Roque directly respond to the opposition of US reps just a few days ago.

We can also urge these representatives to support the Philippine Human Rights Act , a legislation that aims to tie US security aid to the Philippines to improvements in the human rights situation in the Philippines. Individuals and organizations can also sign on to support PHRA .

Lastly, we can find people that are doing the work of organizing and join them. There has been no lack of folks in the diaspora mobilizing on Philippine issues. Malaya Movement , for example, is made up of a wide range of people all brought together by the following points:

• Stop the killings
• No to fascist dictatorship
• Scrap Executive Order 70 , Memorandum Order 32 and all other de facto Martial Law policies
• End corruption and the practice of political dynasty in the Philippines
• Stand for genuine democracy
• Defend Philippine sovereignty against all foreign powers 

We happen to think Malaya Movement and Respond and Break the Silence Against the Killings are among the organizations that are doing important work, but there are many more that we can work with.

In closing, to briefly speak directly to those of us that might hold citizenship outside of the Philippines – acts like these are targeting Filipinos and aiming to silence them into submission. If we are in a position to do so, this would be a key moment to be loud about our opposition to these attacks on democracy and human rights. Our vocal dissent can help amplify their struggles and support their efforts. We can do this by mobilizing in our localities and taking opportunities to speak up and educate ourselves and each other. – Rappler.com

This essay merges the presentations of the authors delivered at the Pino/a/x/y Powerpoint Party on July 18, 2020, organized by Michael Salgarolo and Noelle Malvar.

Dada Docot is an assistant professor in the Department of Anthropology at Purdue University. She is an anthropologist of her hometown in Bicol, and of the Filipino diaspora.

Mark John Sanchez is a lecturer in History & Literature at Harvard University. He is a historian of Philippine social movements and human rights.

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Australian Anti-Terrorism Laws Essay

Introduction, australian anti-terrorism laws.

Since the terrorist attack on September 11, 2001, in New York City in the U.S, the world has been more alert on terror threats and attacks than ever before. Governments have enacted laws to protect and safeguard their citizens against terrorism activities, as well as laws to try to suspect and prosecute terrorism culprits. In the quest to protect citizens, some governments have gone to the extend of inflicting torture on terror suspects in need to obtain some information from the suspect, which raises concern about the suspect’s civil liberties in enforcing the law (Dershowitz 2002). This gives rise to the concern on whether anti-terrorism laws maintain a balance between the protection of citizens from risks, threats, and actual terrorism activities and the preservation of civil liberties. This paper will seek to analyze the Australian anti-terrorism laws on the above-mentioned concerns.

Since the September 11 attacks, several anti-terrorism laws have been passed in Australia. The manner, in which the laws on ‘war on terror have been enacted and implemented, has greatly been disturbing. According to Joo-Cheong 2004, the Australian anti-terrorism laws grant the country’s police and other security agencies the power to arrest and detain terror suspects without trying them. These laws against terrorism conceal police and the security organization’s operations against terrorism in great secrecy, speeches that are criminalized, and above all, the risks of prosecutions on political or religious factors.

Among the recently enacted anti-terrorism laws in Australia, which have been criticized for undermining democracy in the law-making process, are as follows. The ASIO Legislation Amendment Act of 2003 and the Criminal Code Amendment Act of 2004 (Terrorist Organizations). Though the laws were enacted to protect the Australian citizens against terrorism, the majority of the citizens criticize them arguing that they have inflicted causalities in several ways.

Undermining democracy in the process of law-making, being passed with lewd haste, misrepresentations, and stifling of public discussions, and conferring arbitrary power to the cabinet are among the major criticisms that rose against the enactment of the laws (Joo-Cheong 2004). These critics point out clearly that the laws have failed in preserving the civil liberties of Australian citizens.

The Australian Security Intelligence Organization (ASIO) has been given the power to solely request a warrant, question and try terror suspects compulsorily. The organization can therefore decide to detain persons who have been suspected to have links or information on offenses related to terrorism. Before a warrant is issued, a lot of legal bureaucratic processes must be undergone. The attorney general should approve the request, the approval should then be granted to the warrant issuing authorities and the execution of the warrant should then be supervised by another body that has “prescribed authority”. The power granted to the organization undermines the democratic processes required in the law, which greatly hamper civil liberties, especially those of the suspects.

The ASIO amendment Act and the Criminal Code Amendment Act confers arbitrary power upon the organization and the attorney General respectively. The latter has got overall power to ban any organization deemed a terror. These acts breach the laws of democracy and civil liberty of the general public since they are locked out in judging whether the anti-terrorism measures prescribed by the laws are effective or not(Joo-Cheong 2004).

Dershowitz 2002 maintained that execution of warrants should not be made by single or unaccountable law enforcement organizations or officials, but by all stakeholders including the citizens. The optimal authority should come from the head of the state, or senior judicial officer, and through all the necessary legal processes as prescribed by the rule of law. On the contrary, innocent citizens can suffer imprisonment and torture poor execution of warrants on terror suspects.

Sometimes torture is justified and works especially when crucial and necessary information to avert possible terrorist attacks. A good example is the case of the ticking time bomb, where numerous people’s lives are endangered. Torture on a suspect who can lead to viable information can be the next best solution. However, the torture conundrum in such a scenario can be solved through the establishment of strict legal frameworks, which follow full legal processes in obtaining leading information from the suspect. The suspect should be handled in such a manner that does not breach his rights and freedom. In such an environment free of torture, more viable information is more likely to be obtained and cases of torture being minimized.

After the amendments of 2002, many more bills on Anti-terrorism have been passed in Australia. The anti-terrorism act of 2005 (No. 2) was aimed at amending the anti-terrorism law. Among the main features of the act was to allow police to detain a suspect for a maximum of 48 hours waiting for a charge. Authorities were however not serious in following the Act as evidenced in the case of Muhammad Haneef who was charged two weeks before his arrest. ASIO Legislation Amendment Act 2006 shed some light on the full legal process of issuing and questioning warrants. It advocated for immediate assessment by the proscribed authority to a person under a warrant.

The classification Amendment bill 2007 was enacted to protect the Australian citizens from terrorist activities or threats via films or computer games advocating doing a terrorist act. Many more amendments bills were passed since the major anti-terrorism laws of 2002 (Rose & Nestorovsk 2007).

The case DPP versus Thomas which the court of appeal of Victoria decided on 18 th of August 2006 was the first to convict a person after the September 11 attacks. Thomas was convicted on charges related to terrorism, particularly on soliciting funds from the terrorists’ organization, Al-Qaeda. Before the convictions, the trial judge noted that the AFP interviewers went into accordance with all stipulations as stated by the law and that the interviewee’s legal rights were not violated. He assessed that the interview was conducted fairly. However, critics’ accusations befell the judge claiming that several laws he had made were erroneous.

From the public’s point of view, the executions of laws in deciding the case were not just and democratic enough. The case of Dr. Muhamed Haneef exposed the government’s tyranny in detaining the suspect indefinitely without charging him. The two cases showcase the Australian violation of civil liberties in the name of combating terrorism.

According to the Civil Liberties of Australia (CLA), the Australian government can strike a balance between its preservation of its citizen’s civil while maintaining their safety through the following measures. Analyzing and addressing the legal professional privilege in the context of a vital human right. Amendments should be done to the Act of Freedom of Information, Section 42. The privilege accorded to governmental agencies to solely pass bills and make anti-terrorism laws should be discarded and the general wholly allowed in the law-making process (Civil Liberties of Australia, 2008).

Butler 2004 pointed out that public discussions, as well as an examination of terrorism-related activities and violence, have been prohibited in various countries. The response to terrorism in Australia is no exception. The public was not consulted in the enactment of laws regarding terrorism. By the rule of law, democracy should thrive in critical matters which draw the attention of a nation and has impacts on the social welfare of the people. People cannot exercise their civil liberties where democracy does not exist (Butler 2004).

Civil- libertarians point out that the terrorism menace has clinched on nations because they have allowed it (Dershowitz 2003). Dershowitz 2003 noted that every violent, criminal and evil act must have a root cause. If nations address the root cause of terrorism appropriately, the terrorist threat may be reduced or eliminated in the world. The terrorism problem works simply because nations are reluctant in encouraging democratic engagements with the entire community in seeking and addressing the root cause of the act in the society.

Civil liberty groups such as the Australian law council have been pressurizing the government to ensure that anti-terrorism laws address the balance between the protection of civil liberties of individuals and their safety. However, the government despite enacting several laws has failed to combat terrorism effectively in addition to striking the balance. Bills have been rammed in the House of Representatives, and government members have not been making any substantive contribution regarding the issue of balance. The situation of the balance between the two issues of concern is getting even worse (Kerr 2002).

Benjamin Franklin’s admonition “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety” fits exactly in the Australian context as stated by (Geoff n.d). Geoff noted that the government was not interested in public thoughts and concerns, in enforcing legislation of Anti-terrorism laws in Australia where terrorism threats were almost extinct. Several bills regarding anti-terrorism were seen as a threat in eroding traditional civil liberties rather than being a protection to the citizens. Anti-terrorism laws such as the ASIO were deemed to threaten citizens’ democratic rights in the name of national safety Geoff n.d).

In Australia, the lack of democratizing the terrorism issue has led to a great imbalance between protecting civilians from terrorism and the enjoyment of their civil liberty. It is a fact that the Australian government has sought for its citizens’ safety against terrorism at the expense of their liberty. The Australian citizens were against how anti-terrorism laws were implemented. Much criticism was specifically on the ASIO Legislation Amendment Act of 2003 and the Criminal Code Amendment Act of 2004 (Terrorists Organizations) among other bills.

Though the agenda of the laws was geared towards protecting the citizens, which was a good idea, the manner of their enforcement was totally against the preservation of their civil liberty. The Australian government traded off its citizen’s democracy and liberty for the safety of the citizens. Indeed the government has failed in maintaining the balance between preserving its citizen’s civil liberty and their safety.

Butler J 2004, Precarious, Verso, London.

Dershowitz AM 2002, The case for torture warrant. Web.

Dershowitz AM 2003, Why Terrorism Works, Yale University Press, New Haven.

Geoff M (n.d). New submission of Anti-terrorism laws- ACLU. Web.

Joo-Cheong T 2004, Causalities of the domestic ‘war on terror’: a review of recent Counter-terrorism laws, Melbourne University Law Review 16.

Kerr D (2002). Australia must debate the implications of the ‘war on terrorism’ argues Wise precautions or impunity for abuses? Web.

Rose G & Nestorovska D 2007. “Australian Counter-Terrorism Offences: Necessity and Clarity in Federal Criminal Law Reforms.” Criminal Law Journal vol.31 pp20-55.

Civil Liberties Australia (2008). Protecting people’s freedoms Submission – Legal Professional Privilege . Web.

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Bibliography

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Henry Cuellar Indicted Over Bribery Scheme

Mr. Cuellar and his wife are accused of accepting bribes from a bank in Mexico City and an oil and gas company owned by Azerbaijan. He has maintained they are innocent.

By Glenn Thrush and Luke Broadwater

Reporting from Washington

Representative Henry Cuellar, a Texas Democrat in a crucial swing district, and his wife were charged with participating in a yearslong $600,000 bribery scheme involving Azerbaijan and a Mexican bank, according to a federal indictment unsealed in Houston on Friday.

The accusations against Mr. Cuellar, 68, and his wife Imelda, 67, center on allegations of bribery and money laundering in connection with their efforts on behalf of an oil and gas company owned by Azerbaijan’s leaders as well as an unnamed bank based in Mexico City, according to the 54-page complaint.

Mr. Cuellar, a Laredo native first elected in 2004, is also accused of acting as an agent of a foreign entity while a U.S. government official — by delivering a speech favoring Azerbaijan in Congress and inserting provisions into aid bills to benefit those who were paying bribes to his family.

The government claimed that Mr. Cuellar, who once served as Texas secretary of state, was paid to back legislation intended to stymie regulation of the payday loan industry, which has been accused of predatory lending practices against the poor. He also tried to weaken money laundering laws that affected Mexico’s banking sector, according to prosecutors.

Mr. Cuellar “agreed to influence legislative activity and to advise and pressure high-ranking U.S. executive branch officials regarding measures beneficial to the bank,” they said.

Many of Mr. Cuellar’s actions, taken at face value, appeared to be legitimate policymaking activities, albeit favoring foreign-owned businesses. But the indictment claimed hidden motives, and prosecutors compiled tables of secret payments that cast those actions as an illegal and mercenary scheme.

The couple was released on Friday after each of them paid a bond of $100,000 after a brief appearance before a federal magistrate in Houston. Shortly before the indictment was unsealed, Mr. Cuellar issued a statement vehemently denying wrongdoing. The Azerbaijani Embassy did not immediately respond to a request for comment.

Representative Hakeem Jeffries of New York, the minority leader, said Mr. Cuellar would take leave from his post as the top Democrat on the Homeland Security Appropriations Subcommittee while he fights the charges.

Christie Stephenson, a spokeswoman for Mr. Jeffries, described Mr. Cuellar as “a valued member of the House Democratic Caucus,” and said he was “entitled to his day in court.”

The long-rumored charges come at a precarious moment for an increasingly empowered Democratic minority in the House. It cast instant doubt on the party’s chances of holding a district that runs along the border with Mexico and has significant political and symbolic importance.

Mr. Cuellar is one of the more conservative Democrats in the House, the only anti-abortion member of his party in the chamber and an occasional critic of the Biden administration. But he is a reliable Democratic vote on most issues.

The criminal complaint echoes the indictment brought last year against Senator Robert Menendez , Democrat of New Jersey; he and his wife were charged with accepting bribes on behalf of Egyptian businesses.

Payments to Mr. Cuellar and his wife, made from 2014 to 2021, were laundered through “sham consulting contracts” and shell companies owned by Ms. Cuellar, who performed “little to no legitimate work” under the contracts, lawyers with the Justice Department’s criminal division wrote. Two of the couple’s adult children are partial owners of the businesses but were not charged.

Prosecutors disclosed a detailed inventory of interactions between Mr. Cuellar and Azerbaijani officials that indicated a close level of cooperation. They also included evidence that he pressured officials in the Obama administration to take a harder line against Armenia, which has long clashed with Azerbaijan over disputed territory.

In January 2015 — after his wife had already been paid $120,000 by the oil company — the congressman emailed an unnamed diplomat from Azerbaijan the draft of a speech he planned to give on the floor of the House, according to the indictment. It praised the country’s effort to combat terrorism.

A year later, Mr. Cuellar texted the same diplomat to say he had introduced legislation that favored Azerbaijan.

“You are the best El Jefe!” the diplomat replied.

Around the same time, Henry and Imelda Cuellar were entering into a series of corrupt deals with a bank in Mexico, prosecutors said. In March 2015, the congressman expressed concerns the arrangement would be discovered and asked a bank official to create a middleman to “disguise” payments, they said.

“We need to find another scheme,” Mr. Cuellar told the official, according to the indictment.

In a statement beforehand, Mr. Cuellar maintained his innocence and said he had cleared his wife’s work with the Ethics Committee.

“I want to be clear that both my wife and I are innocent of these allegations,” Mr. Cuellar said. “Everything I have done in Congress has been to serve the people of South Texas.”

“Before I took any action,” he added, “I proactively sought legal advice from the House Ethics Committee, who gave me more than one written opinion, along with an additional opinion from a national law firm.”

Mr. Cuellar said he tried to meet with federal prosecutors in Washington to explain his side of the story, but they declined the meeting.

The F.B.I. searched Mr. Cuellar’s Laredo home in 2022, appearing to dim his prospects for re-election, but he won a close primary victory anyway over a more progressive challenger, Jessica Cisneros. The primary divided prominent Democrats; Representative Alexandria Ocasio-Cortez, the New York progressive, backed Ms. Cisneros, but senior members of leadership, including Speaker Nancy Pelosi, campaigned for Mr. Cuellar.

On Friday, he vowed to continue his re-election campaign.

Azerbaijan, an oil-rich former Soviet republic in the Caucasus region, has been at the center of several significant scandals that have touched on influence-peddling, corruption and election rigging.

It has maintained a robust lobbying presence in the United States, and has aggressively courted members of Congress in an effort to win support for its conflict with Armenia over the breakaway Nagorno-Karabakh region. (It seized full control of the territory in September.)

In 2013, the State Oil Company of the Azerbaijan Republic, which is controlled by the country’s leaders, funneled $750,000 through U.S. intermediaries to pay expenses for a junket to Baku, the country’s capital, for 10 members of Congress and 32 staff members, according to the Office of Congressional Ethics.

Mr. Cuellar did not attend. But several other Texas legislators from both parties did — and also took home lavish gifts that included a crystal tea set and hand-woven rug.

Prosecutors said that payments to Ms. Cuellar’s shell companies, in the form of retainers worth $30,000 to $60,000, slowed after the public disclosure of the Baku trip in 2015.

Glenn Thrush covers the Department of Justice. He joined The Times in 2017 after working for Politico, Newsday, Bloomberg News, The New York Daily News, The Birmingham Post-Herald and City Limits. More about Glenn Thrush

Luke Broadwater covers Congress with a focus on congressional investigations. More about Luke Broadwater

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