(Updates with additional reporting throughout after meeting with Wainstein.)
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Civil liberties advocates are sounding the alarm about President Joe Biden’s pick to lead the Department of Homeland Security’s intelligence arm.
Ken Wainstein, who would take charge of the Office of Intelligence and Analysis if confirmed by the Senate, worked on post-9/11 surveillance and counterterrorism initiatives that critics say deserve closer scrutiny.
“If we’re going to try to make progress moving forward, we need people who think differently,” Chris Habiby, legislative and policy coordinator for the American-Arab Anti-Discrimination Committee, said in an interview.
The anti-discrimination group is one of more than a dozen organizations urging the Senate Homeland Security and Governmental Affairs Committee to question Wainstein during his confirmation hearing Thursday about his role in George W. Bush-era surveillance and profiling policies. Wainstein’s allies have pushed back, calling him uniquely qualified to lead Intelligence and Analysis, a DHS office that has experienced years of turmoil and leadership gaps.
Lawmakers have indicated they’re weighing the criticism against Wainstein, but it’s unclear whether it will derail his nomination. Sen. Ron Wyden (D-Ore.), a member of the Senate Select Committee on Intelligence, has flagged serious concerns about the nomination and said Tuesday he was still reviewing Wainstein’s answers to recent written questions.
But several other lawmakers on both sides of the aisle appeared poised to support him after a recent hearing before the intelligence panel. Chairman Mark Warner (D-Va.) said he’s confident his colleagues will work through any issues and vote to confirm Wainstein.
Some of Wainstein’s critics softened their tone late Wednesday after meeting with the nominee earlier in the day to discuss their concerns. Habiby said the conversation was constructive.
“As of right now, we do not plan to oppose his nomination but remain cautious,” he said in an email Wednesday evening.
Questions about Wainstein’s record stem from his time in top security and intelligence positions during the George W. Bush administration. He was general counsel and chief of staff at the FBI early in Bush’s tenure, and later became assistant attorney general for national security at the Justice Department and a homeland security adviser at the White House.
Recently, Wainstein has been a lawyer in private practice and was an outspoken critic of former President Donald Trump.
While at the Justice Department, Wainstein penned a memo endorsing changes to a set of rules for the U.S. government’s collection and analysis of communications metadata. The updated rules said the National Security Agency was permitted to analyze data about U.S. citizens and permanent residents.
Wainstein’s memo “essentially assumed that all the collection was done legally, and he didn’t really dig into that,” Habiby said.
The updated rules were part of a broader expansion of secretive post-9/11 surveillance practices that were later exposed in bombshell leaks by National Security Agency contractor Edward Snowden.
“Wainstein had the power and responsibility to stand up to these illegal acts that compromised the privacy of every American, but instead he helped engineer the continued mass surveillance of people in the United States,” Demand Progress senior policy counsel Sean Vitka said.
Civil rights advocates have also questioned Wainstein’s role in government programs that targeted Arab Americans, Muslim Americans, and certain foreign nationals after the Sept. 11, 2001, attacks, and whether he pushed back while at the FBI on the CIA’s use of torture on interrogation subjects.
Wainstein told members of the Senate intelligence panel he was aware of the CIA’s enhanced interrogation program and talked about it with then-FBI director Robert Mueller, who ultimately barred FBI personnel from being involved. The New York Times reported last year that several FBI personnel were temporarily reclassified as CIA operatives so they could participate.
Civil rights advocate and lawyer Hammad Alam, who organized the recent letter to the Senate homeland security panel, said senators should demand more information during the upcoming hearing on Wainstein’s response to the torture program and his involvement in various surveillance initiatives targeting mosques.
Wainstein’s confirmation to the Office of Intelligence and Analysis would be particularly concerning, Alam said, because of its place in the U.S. intelligence community. The office uses publicly available information to monitor potential threats, and shepherds information-sharing between federal, state, and local officials. It faced backlash in 2020 when it distributed intelligence reports on U.S. journalists writing about social unrest in Portland, Ore.
“Why would he be the best fit for a position at the DHS Office of Intelligence and Analysis while so much change is needed at that agency?” said Alam, who leads the National Security and Civil Rights program at Asian Americans Advancing Justice – Asian Law Caucus.
Habiby cautioned Democrats from being too easily won over by any nominee’s status as a Republican critic of Trump. “That can’t be the one and only litmus test for somebody to get nominated,” he said.
The White House and Wainstein didn’t respond to requests for comment for this story. The nominee has addressed some of the surveillance and profiling concerns during exchanges with Wyden and other senators.
Wainstein in 2001 worked on guidelines for “the Interview Project,” a mass initiative to question noncitizens from countries with an al-Qaeda presence. He told Wyden last week it was a “fair question” whether any benefits “justified the heightened profiling concerns that it generated among some in the targeted communities.”
He also addressed mass surveillance tactics that emerged at the time, telling Sen. Martin Heinrich (D-N.M.) last month that he learned there should have been more transparency around the practice.
Habiby said he’s hopeful members of the Senate homeland committee will dig in further on his record.
Carrie Cordero, who worked with Wainstein at the Justice Department and the Office of the Director of National Intelligence and signed one of the letters, said he navigated the post-9/11 crisis period with “fidelity to the law and DOJ guidelines.”
“He is exactly the type of leader that DHS I&A needs now,” she said.
To contact the reporter on this story: Ellen M. Gilmer in Washington at email@example.com